DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff sues the defendant as administrator of the estate of Jason William Ewen (the deceased).

2. [2]
   On 27 August 2004 the deceased ran into the path of the plaintiff’s vehicle. The vehicle collided with him and he later died from his injuries.

3. [3]
   The plaintiff was also injured in the collision and she has sued the estate of the deceased for damages.

4. [4]
   The defendant pleads that the estate has been completely administered in accordance with the Succession Act 1981, leaving no assets to satisfy any part of the plaintiff’s claim.^[1]  He raises the defence of plene administravit.

5. [5]
   The defendant contends that the plaintiff has no reasonable prospect of success in her claim and therefore applies for summary judgment pursuant to r 293 Uniform Civil Procedure Rules 1999.  The plaintiff argues that the deceased’s estate has a right of indemnity under a contract of insurance.  The insurer has said,^[2] and the defendant maintains, that an exclusion clause in the policy of insurance applies so as to preclude liability.

6. [6]
   The defendant has not joined the insurer, CGU Insurance Ltd (CGU) as a third party under r 192. During the hearing Mr Ashton for the plaintiff invited me to consider adding CGU as a party under r 69. Mr Ashton was afforded the opportunity to consider making application to add CGU as a party but he declined to do so. As neither party applied to join CGU to the proceeding it would be inappropriate to do so.

Background

7. [7]
   The police report prepared for the coroner^[3] states that at about 5.50 pm on 27 August 2004 the deceased was driving his Nissan sedan along Logan Road at Upper Mount Gravatt when he became involved in a “road rage incident” with the driver of a Toyota utility.  The driver of the utility was Gregory Peter Woodgate.  There was a near collision between the two vehicles and Mr Woodgate was forced to brake heavily.  Mr Woodgate made a finger gesture towards the deceased and mouthed an obscenity at him.  Both vehicles continued along Logan Road and then came to a stop at a red light.  Mr Woodgate was intending to continue along Logan Road heading towards Garden City.  The deceased was apparently intending to turn right into Klumpp Road.  The deceased got out of his vehicle and threatened Mr Woodgate with a knife.  Mr Woodgate walked towards the deceased’s vehicle to get his number plate and said to him “you’re gone”.  He believed that the incident was over and returned to his vehicle.  Mr Woodgate said that the other driver proceeded down Klumpp Road towards the freeway.  Mr Woodgate then turned into Dawson Street and did a U-turn so that he was facing Klumpp Road.  He was stationary at a red light.

8. [8]
   Mr Woodgate described what then happened in his statement dated 29 August 2004:

“30. The next thing I know is that the male driver of the Nissan appeared in front of my vehicle. I recall that he again had something in his hand and I presumed it was the knife.

1. 31.
   I immediately locked my door and the male person was yelling and pointing at me. He then through (sic) the knife at my vehicle and it hit my windscreen near my head area.

1. 32.
   The male person then ran off and I got out of my vehicle and gave chase. I recall that I didn’t run to (sic) far but don’t recall where I actually ran to.

1. 33.
   I recall that it was peak hour traffic and this male person keep (sic) running towards Klumpp Road.

1. 34.
   I don’t recall the initial impact but I did hear a loud thud.

1. 35.
   I recall that I then saw the male who had chased me to fly through the air.

1. 36.
   I then realised that he had been hit by a car.”

9. [9]
   A witness who lived nearby observed the events from her front yard. She said that she observed a male person “throw something” at the utility. She said that it “… looked like he was throwing rocks at the white ute.”^[4]  She said that the driver of the utility chased the male person onto Logan Road.  She said that the utility driver stopped on the footpath and the other person continued running into the middle of the intersection where he was struck.

10. [10]
    Another witness said that it appeared that the male person began to hit the bonnet and windscreen of the utility.^[5]  She observed the utility driver chase the other person.  She said that they were “dodging vehicles travelling southbound on Logan Road.”  The man being chased ran in front of a stationary vehicle that was waiting to turn right into Dawson Road off Logan Road.  As he did so he glanced behind him to see where the other person was.  She saw that the utility driver was almost at the median strip.  She then heard her husband make a comment and turned to see the young person who was being chased, fly through the air.

11. [11]
    The deceased died as a result of his injuries on 2 September 2004. He died intestate.^[6]  The defendant was granted letters of administration on 28 April 2005.^[7]

12. [12]
    The estate of the deceased with a net value of $52,556.08 was distributed in accordance with the rules of intestacy in or about August 2005.^[8]  At the time of finalising the estate of the deceased the defendant had no notice of the plaintiff’s claim.^[9]  The defendant became aware of the plaintiff’s claim when he received a letter from her solicitors dated 30 August 2007.^[10]

13. [13]
    On 27 August 2007 the plaintiff obtained an ex-parte order granting leave to commence proceedings within 60 days of various procedural steps occurring.^[11]  The plaintiff said in her affidavit supporting the application for leave to commence proceedings that on or about 6 August 2007 she discovered on an internet search that personal injuries proceedings were to be brought within three years of the accident.  She immediately contacted the Queensland Law Society and was referred to a number of law firms.  She first consulted her present solicitors on 22 August 2007.^[12]

14. [14]
    The plaintiff’s claim for damages totalling $662,477.58 was filed on 8 June 2011.

Policy of Insurance

15. [15]
    At the time of his death the deceased lived with his parents who held home and contents insurance with CGU.^[13]  It is common ground that the deceased was an insured person under the policy and that he was entitled to indemnity under the liability section on page 32 of that policy.  In a letter dated 15 February 2008 CGU stated that the cover provided by the liability section of the policy would extend to include the deceased who was a child normally living with his parents at the time of the accident.  However reliance is placed on the exclusion provisions of the policy booklet.^[14]

16. [16]
    The exclusion section of the policy is at pages 34-35 of the booklet which states:

“When we will not pay

We will not pay claims arising from:

• Any act or omission that is dishonest, fraudulent, criminal, wilful or malicious.

Contentions of the parties

17. [17]
    Mr King-Scott for the defendant submits that the plaintiff has no real prospect of succeeding in her claim and it should therefore be dismissed under r 293. He submits that the exclusion clause in the insurance policy clearly applies so that the defence of plene administravit should be upheld.  He submitted that the words “arising from” and similar expressions require a less immediate causal relationship between two subject matters but still one carrying a sense of consequence.^[15]

18. [18]
    Mr King-Scott referred to the following passage of the judgment of Applegarth J in Samways v WorkCover Queensland & Ors:^[16]

“The words ‘arising out of’ are wide.  The relevant relationship should not be remote, but one of substance albeit less than required by words such as ‘caused by’ or ‘as a result of’.  The phrase connotes a weak causal relationship.  However, more is required than the mere existence of connecting links.  The words require the existence of a causal or consequential relationship between, in this case, the use of the plant and the injury.”^[17]

19. [19]
    Mr King-Scott identified the criminal act of the deceased as an assault by the presentation of the knife. He submitted that the deceased had abandoned his car and was running away because of Mr Woodgate’s reaction to being threatened with the knife. He submitted that there was no break in the chain of causation either in time or proximity.

20. [20]
    Mr Ashton for the plaintiff accepts that the term “arising from” is broad but he submits that it nevertheless requires a causal relationship which is not remote. He submitted that it must be a causal relationship of substance which is a question of judgment on the particular facts.^[18]  He submitted that the relevant act was the deceased running on to the roadway into the path of the plaintiff’s car.  He submitted that this was clearly not a criminal, wilful or malicious act.  He also submitted that the entire incident could not be viewed as a single course of events.  He submitted that the deceased’s act of throwing the knife did not give rise to his liability to the plaintiff.  The deceased’s liability to the plaintiff arose from him running on to the carriageway or possibly from the chase itself.  He also pointed out that after the near collision between the two vehicles Mr Woodgate made a finger gesture towards the deceased and mouthed an obscenity at him.  Mr Ashton submitted that this might be regarded as a provocative act which would excuse an assault by the deceased.

21. [21]
    Mr Ashton submitted that the question of whether the claim for indemnity under the insurance policy can be said to arise from a criminal, wilful or malicious act will need to be the subject of evidence from the witnesses referred to in the coroner’s report. He referred to the customary caution in the precipitous determination of such factual questions.^[19]

22. [22]
    Mr Ashton also submitted that the defendant had raised the wrong plea. He submitted that the correct plea should have been plene administravit praeter, with liability limited to the proceeds of the insurance policy.^[20]

Consideration

23. [23]
    Rule 293(2) requires the court to be satisfied that the plaintiff has no real prospect of succeeding in her claim and there is no need for a trial. If satisfied of those matters the court may give judgment for the defendant against the plaintiff. The remarks of Daubney J in Bolton Properties P/L v JK Investments (Australia) P/L^[21] although made in the context of a plaintiff’s application for summary judgment under r 292 are equally applicable:

“The need to be satisfied in respect of this second element and, in any event, the proper judicial exercise of the discretion to grant or deny summary judgment are each matters which invoke the necessity for a judge to exercise great care, and proceed with appropriate caution, having regard to the patent seriousness of a decision to summarily terminate a proceeding by effectively denying a party the opportunity to present its case at a trial. …”^[22]

24. [24]
    In Agar v Hyde^[23] Gaudron, McHugh, Gummow and Hayne JJ made the following observation:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”^[24]

25. [25]
    The defendant relies on the defence of plene administravit.  The defences available in actions against personal representatives are explained in Halsbury’s Laws of England, 5^th edition as follows:

“A person against whom a claim is made in the capacity of personal representative may in general plead in answer to a claim brought against him in his representative capacity any defence which would have been open to the deceased.  He may further rely upon the following defences:  (1) that he was never executor or administrator (ne unques executor); (2) that he has fully administered (plene administravit), or fully administered with the exception of certain assets (plene administravit praeter); (3) the existence of debts of a higher nature and no assets ultra; (4) the right to set off a debt; and (5) the expiration of the appropriate period of limitation.

If the defence of plene administravit or plene administravit praeter is pleaded, the burden of proving assets rests on the claimant, and the personal representative is only answerable to the amount of assets proved.  The amount of the duty paid by the executor on obtaining probate is admissible in evidence upon the issue of plene administravit, but is it not prima facie evidence of the amount of assets which have come to his hands.”^[25]

26. [26]
    In Levy v Kum Chah^[26] Dixon J (as his Honour then was) and Evatt J said:

“The appropriate plea has always been a general or special plene administravit.  When debts were of different degrees the plea might take many various forms.  Besides the ordinary plea that he had fully administered the assets coming to his hands, pleaded when no assets remained, and the plea admitting assets of such a value and alleging that praeter that sum he had fully administered the assets coming to his hands, there were pleas that debts of higher degree were outstanding and that praeter assets to satisfy them the executor had fully administered, and the like.”^[27]

27. [27]
    It is not in issue that a right of indemnity under a contract of insurance is a chose in action and therefore capable of being an asset of the estate.

28. [28]
    The issue for determination on this application for summary judgment by the defendant is whether the exclusion clause in the CGU insurance policy so clearly applies that the plene administravit defence must succeed.  There are obvious limitations in deciding this question without submissions from the insurer.  Nevertheless that is the way in which the parties have presented the issue for decision.

29. [29]
    In McCann v Switzerland Insurance Australia Ltd^[28] Gleeson CJ said:

“A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation.  Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.”^[29]

30. [30]
    The issue raised by Mr King-Scott’s argument is whether the negligence of the deceased which caused the collision with the plaintiff’s vehicle arose from his criminal act of assaulting Mr Woodgate by presenting and/or throwing the knife. The issue has been framed in a narrow way that may perhaps be unnecessarily restrictive. However that is the way in which the matter is to be determined on this application for summary judgment by the defendant.

31. [31]
    The actions of the deceased could constitute a threatened application of force and therefore amount to an “assault” within the definition contained in s 245 Criminal Code.  Common assault is a misdemeanour punishable by imprisonment for 3 years.^[30]

32. [32]
    Mr Ashton for the plaintiff submitted that the witnesses provided different versions to the account of Mr Woodgate.^[31]  He submitted that Mrs Groundwater thought that the deceased was throwing rocks at Mr Woodgate’s vehicle.  However as I have already mentioned Mrs Groundwater said that she saw a male person throw something at the utility.  She went on to say that it “looked like he was throwing rocks at the white ute.”^[32]  He also pointed out that Mrs Williams said that the deceased was hitting the bonnet and windscreen of Mr Woodgate’s utility.  In my view the accounts provided by Mrs Groundwater and Mrs Williams do not cast any doubt on Mr Woodgate’s version of events.  He was certainly best placed to describe the actions of the deceased.  The variations in the versions of the witnesses are not of such significance that the facts cannot be determined on a summary judgment application.  The essential facts are sufficiently clear.

33. [33]
    Mr Ashton also raised the possibility that any assault committed by the deceased might be excused by Mr Woodgate’s provocative acts of making a finger gesture towards the deceased and mouthing an obscenity at him. Provocation is a defence to an offence of which an assault is an element,^[33] but the production of a knife is probably disproportionate to the provocative act.  In any event the conduct of the deceased in relation to the knife is capable of constituting other offences which do not include an assault as an element, so provocation would not be available.  For example he may have committed the offence of going armed so as to cause fear contrary to s 69 Criminal Code or committing a public nuisance contrary to the now repealed s 7AA Vagrants, Gaming and Other Offences Act 1931.  The offence of public nuisance is now contained in s 6 Summary Offences Act 2005 which commenced on 21 March 2005.  However at the time of these events in August 2004 public nuisance was governed by the Vagrants, Gaming and Other Offences Act 1931 which provided that a person committed a public nuisance offence if the person behaved in a disorderly way, an offensive way, a threatening way or a violent way.^[34]

34. [34]
    However Mr King-Scott for the defendant identified the relevant criminal act as an assault so consideration of the issue should be limited to that offence.

35. [35]
    Mr Ashton argued that the entire incident could not be viewed as a single course of events. He submitted that the assault had ended and the deceased was struck by the plaintiff’s vehicle in a quite separate phase of the events. I accept that whilst the words “arising from” are wide, there must be a causal connection. Mr Woodgate may have been justified by s 260 Criminal Code to intervene in order to prevent the continuation or renewal of a breach of the peace provided that any force used was proportionate.  If that was the case there would be the necessary causal connection between the deceased’s initial actions with the knife and Mr Woodgate’s pursuit of him which led to him running on to the carriageway and being struck by the plaintiff.  However that is not the way in which Mr King-Scott argued the case for the defendant and it should therefore not be decided on this footing.

36. [36]
    Bearing in mind the limited way in which Mr King-Scott sought to invoke the exclusion clause in the insurance policy it is not so clearly applicable that the plaintiff’s claim should be dismissed on a summary judgment application. Mr King-Scott argued that the plaintiff’s claim “arises from this matrix of facts of the assault and the chase.”  However there was no argument directed at the legal basis on which such a link arose.  It may well be that the purpose of Mr Woodgate’s chase of the deceased might provide the necessary nexus, but consideration of that issue requires closer attention to the issues I have raised which were not addressed in argument.

37. [37]
    Mr Ashton argued that the relevant act was the deceased running on to the roadway into the path of the plaintiff’s car. He submitted that this was not a criminal, wilful or malicious act. However that is not necessarily correct. At the relevant time the Transport Operations (Road Use Management – Road Rules) Regulation 1999 imposed rules for pedestrians in Part 14.  For instance a pedestrian crossing a road must do so by the shortest safe route^[35] and a pedestrian must not cause a traffic hazard by moving into the path of a driver.^[36]  These provisions arguably applied to the deceased and carry a maximum penalty of 20 penalty units.  Criminal offences include simple offences.^[37]  Moreover a contravention of such provisions could mean that the deceased committed an unlawful act causing bodily harm to the plaintiff which is a misdemeanour punishable by imprisonment for 2 years.^[38]  However these issues were not explored during the hearing and would therefore be an inappropriate basis on which to dismiss the plaintiff’s claim.

38. [38]
    As I have said, based on the arguments actually presented at the hearing I am of the view that the exclusion clause is not so clearly applicable that the plaintiff’s claim should be dismissed.

Costs

39. [39]
    Mr Ashton submitted that in the event that the defendant’s application for summary judgment was dismissed the plaintiff was entitled to costs. The defendant’s application was not entirely without merit. However that would not ordinarily provide a basis for refusing costs to the successful party. There is a reasonable possibility that the exclusion clause will be held to apply. In that event, the plene administravit defence would succeed. 

40. [40]
    Mr King-Scott initially submitted that in the event that the application for summary judgment was dismissed that costs should be reserved.

41. [41]
    I have already mentioned that the defendant was granted letters of administration on 28 April 2005 and the estate was finalised in August 2005. On 27 August 2007 the plaintiff obtained an ex-parte order granting leave to proceed. By then the estate had been finalised for about two years.

42. [42]
    In the circumstances I am of the view that the appropriate order is that each party’s costs of the application be costs in the proceeding.

Orders

43. [43]
    I will therefore make the following orders:

1. The defendant’s application for summary judgment is dismissed.
2. That each party’s costs of the application be costs in the proceeding.