Nominal Defendant v Duntroon Holdings Pty Ltd
[2007] QSC 338
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Nominal Defendant v Duntroon Holdings Pty Ltd[2007] QSC 338
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Nominal Defendant v Duntroon Holdings Pty Ltd[2007] QSC 338
Nominal Defendant v Duntroon Holdings Pty Ltd[2007] QSC 338
SUPREME COURT OF QUEENSLAND
CITATION: | Nominal Defendant v Duntroon Holdings P/L [2007] QSC 338 |
PARTIES: | NOMINAL DEFENDANT |
FILE NO: | BS 1020/06 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
DELIVERED ON: | 16 November 2007 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 31 October 2007 |
JUDGE: | Wilson J |
ORDER: | 1. Judgment for the plaintiff in the amount of $407,637.90 together with interest in the amount of $124,508.05. 2. The defendant is to pay the plaintiff’s costs (including reserved costs, if any) to be assessed on the standard basis. |
CATCHWORDS: | INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – UNINSURED VEHICLES – QUEENSLAND – INTERPRETATION – the front tyre of a crane collided with a man, causing him personal injury – at the time of the incident the crane was partly on a road and partly on private property – the injured man was on private property – the crane was uninsured – the Motor Accident Insurance Act 1994 (Qld) provides that the Nominal Defendant is the deemed insurer if a motor vehicle accident happens on a road – whether the accident happened on a road Motor Accident Insurance Act 1994 (Qld) (reprint 3A), s 4, s 5, s 23, s 31, s 33, s 60 Motor Accidents (Compensation) Act 1979 (NT), s 4 Transport Infrastructure (Roads) Regulation 1991 (Qld) (reprint 8A), s 12 Darwin City Council v McDonnell (1998) 28 MVR 176, discussed Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30; [2000] QCA 512, followed Gideona v Nominal Defendant [2006] 1 Qd R 31; [2005] QCA 261, followed Gideona v Suncorp Metway Insurance Limited [2006] 1 Qd R 327; [2005] QSC 275, cited Shepperbottom v Territory Insurance Office (2005) 44 MVR 403, discussed |
COUNSEL: | D J Campbell SC and N Ferrett for the plaintiff P Dunning SC and G Beacham for the defendant |
SOLICITORS: | Cooper Grace Ward for the plaintiff Damien Bourke & Associates for the defendant |
- Wilson J: On 14 June 2000 Scott Walter James was injured when the right front wheel of a mobile crane ran over his leg. At the moment of impact the crane was straddling the boundary between a road and private property owned and occupied by Duntroon Holdings Pty Ltd (“Duntroon”), which owned the crane. The place where the right front wheel came into contact with James’ leg was on the private property. There was no CTP insurance policy for the crane.[1]
- James sued Duntroon and the Nominal Defendant for damages for personal injuries. The Nominal Defendant, which had the conduct of a defence,[2] settled the claim.
- In this proceeding the Nominal Defendant seeks to recover the amount it expended on the personal injuries claim pursuant to s 60 of the Motor Accident Insurance Act 1994 (Qld),[3] which provided –
“Nominal Defendant’s rights of recourse for uninsured vehicles
60.(1) If personal injury arises out of a motor vehicle accident involving an uninsured vehicle, the Nominal Defendant may recover, as a debt, from the owner or driver of the vehicle (or both) any costs reasonably incurred by the Nominal Defendant on a claim for the personal injury.
(2) It is a defence to an action by the Nominal Defendant under this Section —
(a) as far as recovery is sought against the owner—for the owner to prove —
(i) that the motor vehicle was driven without the owner’s authority; or
(ii) that the owner believed on reasonable grounds that the motor vehicle was insured; and
(b) as far as recovery is sought against the driver—for the driver to prove that the driver believed on reasonable grounds that the driver had the owner’s consent to drive the motor vehicle and that the motor vehicle was insured.
(3) The Nominal Defendant may bring a proceeding for recovery of costs under this section before the costs have been actually paid in full and, in that case, a judgment for recovery of costs may provide that, as far as the costs have not been actually paid, the right to recover the costs is contingent on payment.
(4) This section does not affect rights of recovery that the Nominal Defendant may have, apart from this section, against the insured person.”
“Costs” were defined in s 4 as follows –
“‘costs’ of an insurer on a claim includes —
(a) the amount paid out by the insurer on the claim to the claimant or for the claimant’s benefit, including —
(i) the cost to the insurer of providing rehabilitation services in connection with the claim; and
(ii) the cost to the insurer of paying private hospital, medical and pharmaceutical expenses in connection with the claim; and
(b)the cost to the insurer of investigating the claim and of litigation related to the claim (but not the insurer’s general administration costs).”
The facts
- The defendant Duntroon carried on a steel fabrication business at Brendale. It instructed two of its employees, Greenfield and James, to use a mobile crane to transport a load of steel from its storage property across the road to its main property.
- The crane was a self-propelled vehicle. It was not registered under the Transport Infrastructure (Roads) Regulation 1991 (Qld) (“the Regulation”).[4]
- Greenfield drove the crane and James acted as dogman, walking beside the load, holding it to prevent the steel from moving or swinging. A concrete driveway provided access to the main property. It ran from the bitumen road surface, across the footpath[5] and on to the main property. As the crane proceeded up the driveway from the bitumen, the load swung to the left, and as James tried to steady it, the front right had wheel ran over his leg and crushed it.
- At the moment of impact the rear wheels of the crane were outside the boundary line, immediately adjacent to the point where the concrete met the bitumen, but the front wheels were within the boundary lines. Thus the point of impact between the right front wheel and James’ leg was not on the road.
- As I have said, James sued Duntroon and the Nominal Defendant. In compromising the claim the Nominal Defendant expended –
Claim $350,000.00
James’ costs$31,734.23
Own costs$25,903.67
Total$407,637.90
It is common ground that the compromise was a reasonable commercial settlement and that the quantum of costs incurred by the Nominal Defendant was reasonable.
The issue
- The Motor Accident Insurance Act provides for a compulsory third party insurance scheme for liability for personal injury out of motor vehicle accidents.
- The Nominal Defendant is a body corporate which is taken to be a licensed insurer.[6] By s 31(1)(c) –
“Principles for determining the insurer
31.(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles —
...
(c) if the motor vehicle is not insured and a self-insurer is not the registered owner — the Nominal Defendant is the insurer”.
- It has rights of recourse against the owner or driver (or both) of an uninsured vehicle pursuant to s 60. The rights of recourse depend on the costs (as defined) being “reasonably incurred” by the Nominal Defendant – and in the present case Duntroon submits that they were not reasonably incurred because James’ injury did not arise out of a motor vehicle accident involving an uninsured vehicle.[7]
The legislation
- The Motor Accident Insurance Act provided –
- By s 5 –
“Application of this Act
"5.(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury—
(a) is a result of—
(i) the driving of the motor vehicle; or
(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or
(iii) the motor vehicle running out of control; or
(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
(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.
(2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.
(3) However, this Act does not apply to personal injury caused by, through or in connection with—
(a) a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or
(b) an agricultural implement; or
(c) a motor vehicle adapted to run on rail or tram tracks; or
(d) an amphibious vehicle; or
(e) a motor vehicle of a class prescribed by regulation;
unless the motor vehicle accident out of which the injury arises happens on a road.”
- By s 4 that –
“‘motor vehicle’ means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or …”
“‘uninsured motor vehicle’ means a motor vehicle for which there is no CTP insurance policy in force, other than a motor vehicle owned by a self insurer or a trailer.”
- The Regulation provided in section 12 –
“12. A person must not use, or permit to be used, on a road, a vehicle (being a motor vehicle or trailer) that is not registered under this regulation …”
That gave rise to an implied requirement of registration when a motor vehicle was used on a road.[8]
The crane was a motor vehicle as defined in the Regulation
- The crane was a self propelled vehicle. It was a “motor vehicle” within the meaning of the Regulation.[9]
The crane was required to be registered
- The crane was required to be registered under the Regulation when it was used on a road. What must be determined is whether the crane was being used on a road at the time of the impact,[10] and not whether the crane was using the road at that time.[11]
- To “use” something is to avail oneself of it or to employ it for some purpose.[12] The crane had been employed to transport the load of steel across the road, and at the time of the impact it was being used to transport it across the boundary line between the road and the private property. In those circumstances, it was still being used on the road. It was therefore required to be registered. It was a “motor vehicle” within the meaning of the Motor Accident Insurance Act.[13]
Nominal Defendant’s liability as insurer
- By s 23 of the Motor Accident Insurance Act, registration of a motor vehicle brings into force a CTP policy in terms of the Schedule to the Act. By s 31(1)(c) the Nominal Defendant is made the insurer of a motor vehicle “if the motor vehicle is not insured” under a CTP insurance policy, and by s 33(1) the Nominal Defendant is liable to the same extent “as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.”[14]
- In Gideona v Nominal Defendant[15] the appellant suffered personal injuries when travelling as a pillion passenger on a Suzuki motorcycle which collided with a Kawasaki motorcycle on an off road track. The Suzuki was covered by CTP insurance, but the Kawasaki was not. The Court of Appeal determined that the Nominal Defendant was not liable as if it were the CTP insurer of the Kawasaki: because the Kawasaki was not being driven on a road at the time of the accident, it was not required to be registered under the Regulation, and so it was not a “motor vehicle” within s 4 of the Motor Accident Insurance Act.
- In the subsequent decision of Gideona v Suncorp Metway Insurance Limited[16] the Chief Justice determined that the CTP insurance of the Suzuki applied during the off road use of that vehicle. His Honour’s decision turned on s 5 of the Motor Accident Insurance Act which “focuses not on the issue of registration, but on the cause of the injury”.[17] He held that s 5(1) is concerned with the ambit of liability under a policy, on the assumption there is a policy in force, while s 5(2) deals with the situation where there is no policy. Where there is no policy, there is the limitation that the Nominal Defendant is liable only if the motor vehicle happens on a road or in a public place.
- In other words –
- if there is CTP insurance, the policy will respond to circumstances coming within one or more of (i)-(iv) of s 5(1)(a);
- if there is no CTP insurance, the Nominal Defendant will be liable as insurer in circumstances coming within one or more of (i)-(iv) of s 5(1)(a) but only if the motor vehicle accident happens on a road or in a public place.
- In Evans v Transit Australia Pty Ltd[18] the plaintiff was a bus driver, who sustained spinal injuries as a result of driving buses with defective seats. She sued her employer and the CTP insurer of the buses she drove. The Court of Appeal rejected the insurer’s contention that the injury had not arisen in a motor vehicle accident as defined – that is, that it had not arisen in “an incident in which personal injury is caused by, through or in connection with a motor vehicle.[19] Pincus JA and Cullinane J treated –
“[18] … the reference to a motor vehicle accident where it appears throughout the Act as no more than the legislator’s reference in summary form to the various occurrences for which s. 5(1)(a)(i), s. 5(1)(a)(ii) and s. 5(1)(a)(iii) provide and in the case of s. 5(1)(a)(iv) the condition and occurrence for which it provides.
[19] On this approach the reference to a motor vehicle accident and its definition add nothing to the terms of s. 5(1)(a) and it is not necessary to import any additional requirement into that subsection that the personal injury for which it provides arises from an incident. Rather the term is a brief compendious reference to the various occurrences provided for in s. 5(1)(a) and from which personal injury must result before the Act and thus the statutory policy applies.
[20] In our view support is to be found for this construction in s. 5(2) which is the first reference to a motor vehicle accident in the substantive provisions of the Act. The absence of any reference to an incident in s. 5(1) which is the provision definitive of the ambit of statutory policy taken with the context in which the term appears in s. 5(2) is strongly suggestive that the term “motor vehicle accident” is no more than a reference to the occurrences provided for in s. 5(1)(a)(i), s. 5(1)(a)(ii), s. 5(1)(a)(iii) and s. 5(1)(a)(iv).
…
[26]In our view the appellant is correct in its argument that for a personal injury to be one to which the statutory policy applies it is both sufficient and necessary that the injury be:
(a) caused by, through or in connection with the relevant motor vehicle;
(b) caused as a result of one or more of the occurrences (or in the case of s. 5(1)(a)(iv) the condition and occurrence therein provided for) specified in s. 5(1)(a); and
(c) caused by some wrongful act or omission on the part of someone other than the injured person in respect of the motor vehicle.”[20]
- Here it was conceded that the personal injury was caused by, through or in connection with the crane.
- In my view the present accident falls within paragraphs (i) and (ii) of s 5(1)(a). I do not accept that paragraphs (i) – (iv) of s 5(1)(a) are mutually exclusive. It is easy to think of circumstances coming within more than one of them; moreover, to suggest that they are mutually exclusive would be contrary to the implied assumption in Evans v Transit Australia Pty Ltd.
- Paragraphs (i), (iii) and (iv) clearly refer to the motor vehicle as a whole, and I see no warrant for reading down paragraph (ii) such that “collision with the motor vehicle” means “collision with part of the motor vehicle”.
- The Nominal Defendant’s liability pursuant to s 5(2) turns on whether the motor vehicle accident happened on a road. To “happen” is to “take place or occur”,[21] and so the question becomes whether the driving of the crane[22] or the collision between James and the crane[23] occurred on a road. The location of the “incident” (as constituted by one or more of the occurrences in s 5(1)(a))[24] cannot be divorced from the location of the vehicle as a whole. At the time of impact the crane was partly on the road, and so the incident happened on the road.
- Some support for this conclusion can be found in two Northern Territory decisions, although the legislation there is not identical with that in Queensland.
- In Darwin City Council v McDonnell[25] the plaintiff sustained personal injuries when he struck a pipe while riding a motorcycle along a track on vacant Crown land. The Court of Appeal of the Northern Territory had to determine if that event constituted an “accident” as defined in the Motor Accidents (Compensation) Act 1979 (NT), that is, “an occurrence … on a public street [a place open to the public] … caused by or arising out of the use of a motor vehicle”. The Court held that the relevant occurrence was the plaintiff striking the pipe; and that the locus of the occurrence was at the pipe, which was a place open to the public.[26] The Court commented that the point of impact will not always define the location of the occurrence: each case must be considered in the light of the particular circumstances.[27]
- In Shepperbottom v Territory Insurance Office[28] the applicant was injured when he was struck by an airborne piece of wood while riding in the back of a utility; he fell out of the utility, on to the road. Southwood J noted, citing Darwin City Council v McDonnell, that –
“the word ‘occurrence’ as used in s 4 of the [Motor Accidents (Compensation) Act 1979 (NT)] contemplates but one occurrence … The word occurrence does not refer to any number of factors that have occurred in a public street that are causally related to the applicant’s injuries.”[29]
- Because the motor vehicle accident in the present case happened on a road, the Nominal Defendant is deemed to be the CTP insurer and it can recover the amount it expended on James’ claim pursuant to s 60.
- I will hear counsel on the form of the order and on costs.
Footnotes
[1] Motor Accident Insurance Act 1994 (Qld) (reprint 3A), s 4.
[2] See James v B & L Steel Fabrications Pty Ltd & Anor [2004] QSC 25.
[3] Refer to reprint 3A
[4] Reprint 8A
[5] Which was part of the road: Motor Accident Insurance Act, s 4.
[6] Section 18 – other than for parts 3 (compulsory insurance) and 5 (licensed insurers).
[7] Transcript of the trial, pp 26-27.
[8] Gideona v Nominal Defendant [2006] 1 Qd R 31, 35-36 (Keane JA).
[9] Regulation, s 2.
[10] Gideona v Nominal Defendant [2006] 1 Qd R 31, [9] (Williams JA).
[11] as the defendant contended: see its written submissions, [26]-[33].
[12] The Macquarie Dictionary defines “use” as (inter alia) “to employ for some purpose; put into service … to avail oneself of; apply to one’s own purpose”. The Shorter Oxford defines it to include “utilization or employment for or with some aim or purpose … to employ for a purpose … to avail oneself of”.
[13] Motor Accident Insurance Act, s 4.
[14] See Gideona v Nominal Defendant [2006] 1 Qd R 31, 35.
[15] [2006] 1 Qd R 31.
[16] [2006] 1 Qd R 327.
[17] [2006] 1 Qd R 327, 330.
[18] [2002] 2 Qd R 30.
[19] Motor Accident Insurance Act, s 4.
[20] Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, 38-39.
[21] The Macquarie Dictionary defines “happen” as (inter alia) “to come to pass, take place or occur”. The Shorter Oxford defines it to include “to come to pass … to take place; to occur”.
[22] s 5(1)(a)(i).
[23] s 5(1)(a)(ii).
[24] Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, 38-39.
[25] (1998) 28 MVR 176.
[26] (1998) 28 MVR 176, 178-180.
[27] (1998) 28 MVR 176, 180.
[28] (2005) 44 MVR 403.
[29] (2005) 44 MVR 403, [14].