Kalimnios v Ewen[2007] QDC 264

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an Application by the second respondent insurer for a Declaration that the applicant’s claim for personal injuries allegedly sustained in a motor vehicle accident on or about 27 August 2004 is not a claim for which indemnity is open under the CTP policy with the second respondent. Senior Counsel for RACQ Insurance Limited submitted that the negligence of the pedestrian, the late Jason William Ewen, is not ‘in respect of’ the insured vehicle driven by Karla Marie Kalimnios, pursuant to s. 5(1)(b) of the Motor Accident Insurance Act 1994.

2. [2]
   He referred to the Notice of Claim signed by Mrs Kalimnios in which she asserts:

‘I was driving in a northerly direction on Logan Road.  I proceeded through the intersection of Logan Road and Klumpp Road as I had a green light.  As I was travelling through the intersection, a pedestrian ran out in the front of my car from the right hand side, causing me to collide with him.’

3. [3]
   In that same Notice of Claim, in response to the question, ‘Who caused the accident and why?’ she answered, ‘The pedestrian Jason William Ewen because he failed to cross the road safely.’

4. [4]
   Section 5 of the Motor Accident Insurance Act 1994 provides:

2. ‘(1)
   This Act applies to personal injury caused by, through or in connection with the motor vehicle if, and only if, the injury –

1. (a)
   is the result of –

…

2. (ii)
   a collision, or action taken to avoid a collision, with the motor vehicle; or

… and

2. (b)
   is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.’

5. [5]
   In Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45, 47, the High Court said:

‘The words “in respect of” have a very wide meaning.  Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear.  The nexus between legal liability and motor vehicle which their use introduces in s.3(1) is a broad one which is not susceptible of precise definition.  That nexus will not, however, exist unless there be some discernible and rational link between the basis of legal liability and the particular motor vehicle.’

6. [6]
   The High Court, at 47, cites the Full Court of the Supreme Court as follows:

‘If the liability of the respondent in this case is to be described as being in respect of the trailer, there must be, in my opinion … more than the mere presence of the trailer at the scene … it is not sufficient, in order to satisfy the requirement of the person entitled to the benefit of the cover be “legally liable … in respect of such motor vehicle,” that there be no more than a connexion or relation in time or sequence between the motor vehicle and the events which in law give rise to the liability.  What is required is that there be a relationship between the motor vehicle and the very act or omission which gives rise to that liability.’

7. [7]
   In Rigney v Littlehales [2005] QCA 252, the Court of Appeal of Queensland dealt with injuries to a plaintiff who was injured when the Brisbane City Council bus in which she was travelling, which was driven by the first defendant, collided with a pedestrian, the second defendant.

8. [8]
   The Court of Appeal held that the Judge hearing the interlocutory application was in error when he considered that he could determine the application on the evidence before him, because it was unlikely that there would be any variation to the facts even if the matter went to trial. The Court of Appeal noted that in reaching his conclusion the Judge seemed to have relied on the non-appearance of the second defendant pedestrian and on the statement by the driver of the bus taken by an NRMA investigator. The version given by the driver of the bus was also supported by other witnesses who gave statements to the NRMA investigator. The Judge held that there was no rational and discernible link between the wrongful act of the pedestrian and the bus, and while the pedestrian owed a duty of care in relation to the bus driver and to the passenger, he had no duty of care in respect of the bus, and it followed that his negligence as a pedestrian was not ‘in respect of’ the bus.

9. [9]
   The Court of Appeal held that at trial the trial Judge may not have accepted all of the evidence of the driver; the pedestrian may have decided to defend the claim and give or call evidence contrary to that of the bus driver; the videotapes, if tendered, may have recorded a different sequence to that described by the bus driver; and, the trial Judge may have found facts different from those accepted by the primary Judge on the application.

10. [10]
    Senior Counsel for the applicant distinguished Rigney (supra), because there was a concurrent claim by the injured passenger against the bus driver, alleging negligence by him as well as negligence of the pedestrian.  He pointed out that the court in Rigney did not exclude summary disposition ‘where the pleadings do not allege a nexus between the wrongful act or omission and the motor vehicle,’ and noted that the court approved Megaw v Suncorp [2002] 1 Qd R 499.

11. [11]
    In Megaw (supra), the plaintiff suffered injury when a vehicle in which he was driving hit a wash-out and rolled.  The vehicle was owned by his employer and was insured by the respondent.  At 501, McKenzie J said:

‘While the words “in respect of” are words of wide scope, it cannot be said, in a case where the only connection relied on between the motor vehicle and causation of personal injury is that the employer had a duty to inquire about the employee’s driving capabilities and to warn of dangers when driving and to supervise the driver, those alleged wrongful acts or omissions are “in respect of” a motor vehicle in the relevant sense.

If the acts or omissions have to be characterised, they are wrongful acts or omissions with respect to the system of work.  There are, undoubtedly, cases where it is appropriate not to decide the question of the application of s.5 in a summary way.  Suncorp General Insurance Ltd v Loweke (1988) 28 MVR 111 and Johnstone v Brisbane City Council [2001] 2 Qd R 43 are examples.’

12. [12]
    In Johnstone (supra), the plaintiff sustained injuries because she was negligently exposed to vibrations while driving the defendant’s motor vehicle.  Mullins J held that the plaintiff’s claim for damages was one to which the Motor Accident Insurance Act 1994 applied.  At para 21, Mullins J referred to the judgment of McMurdo P in Suncorp General Insurance Ltd (supra).

13. [13]
    In Suncorp General Insurance (supra), the plaintiff’s injuries were due to a defective driver’s seat in her employer’s bus.  The Court of Appeal considered that the issue whether the Motor Accident Insurance Act 1994 applied should be determined at trial.

14. [14]
    McMurdo P said (at para 7):

‘Findings of fact made at the trial may well be relevant to the sensible determination whether this case is covered by the Act:  evidence at trial sometimes raises issues of fact not precisely pleaded: This supports the respondents’ contention that this application is premature.’

15. [15]
    Muir J said (at para 12):

‘[Summary determination] is premature without full and precise particularisation of the circumstances in which the plaintiff’s injuries were alleged to have occurred.  Also relevant to any assessment of the desirability of determining such a question as a preliminary issue is the question whether it is possible to ensure that the determination is binding on the other defendants and the mechanics of achieving that objective.’

16. [16]
    Senior Counsel for the applicant referred to Stevens v Nudd [1978] Qd R 96, where the Full Court of the Supreme Court of Queensland held that the liability of the licensed insurer was not ‘in respect of’ the respondent’s motorcycle, but rather in respect of the control of the dog which was unleashed and had been walking with the respondent along the footpath next to the road, and accordingly the Motor Vehicles Insurance Act 1936-1975 did not apply.

17. [17]
    Senior Counsel for the applicant submitted that the issue between the plaintiff and the first respondent can be determined separately.

18. [18]
    Unfortunately, Mr Ewen was killed in the accident; therefore, the situation differs from Rigney (supra) because the evidence of the pedestrian will not be available.  However, it does not necessarily and automatically follow that Mrs Kalimnios’ version of the incident will be accepted at trial.  Findings of fact will need to be made by the trial Judge.

19. [19]
    I also consider it relevant that pleadings are not yet available, and Particulars may be requested.

20. [20]
    I consider that the application for summary determination is premature, and I dismiss it.

21. [21]
    I order the applicant to pay the respondent’s costs of and incidental to the application.