Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd
[2012] QSC 237
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- Notable Unreported Decision
- Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd[2012] QSC 237
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Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd[2012] QSC 237
Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd[2012] QSC 237
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | |
DELIVERED ON: | 30 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 July 2012 |
JUDGE: | Applegarth J |
ORDERS: | 1.The application is dismissed. 2.The applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis. |
CATCHWORDS: | INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – Risks insured – Liability in respect of motor vehicles – where child injured in collision with prime mover and trailer in New South Wales – where prime mover and trailer insured by the applicant (“Suncorp”) pursuant to the Motor Accident Insurance Act 1994 (Qld) (“the Queensland Act”) – where the child in New South Wales proceedings claims damages pursuant to the “special entitlement” in s 7J Motor Accidents Compensation Act 1999 (NSW) (“the NSW Act”) – where s 7J of the NSW Act provides that in certain circumstances the injury is “deemed to have been caused by the fault of the owner or driver of a motor vehicle” – where the statutory insurance policy contained in the Queensland Act responds to injury caused by a “wrongful act or omission” – whether the statutory insurance policy contained in the Queensland Act responds to the child’s claim pursuant to s 7J of the NSW Act Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 3B, 7J, 7K, 7L Motor Accident Insurance Act 1994 (Qld), ss 3, 4, 5 Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, cited Manteufel v QBE Insurance Ltd (2000) 21 Qld Lawyer Reps 32, considered Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45, cited |
COUNSEL: | R J Douglas SC and J M Sorbello for the applicant M Grant-Taylor SC for the first and second respondents |
SOLICITORS: | Curwoods Lawyers for the applicant Cooper Grace Ward for the first and second respondents |
[1] The applicant/insurer (“Suncorp”) seeks declaratory relief concerning the proper construction of the statutory policy contained in the schedule to the Motor Accident Insurance Act 1994 (Qld) (“the Queensland Act”).
[2] The first and second respondents are insured by a statutory policy issued by Suncorp under the Queensland Act. They are defendants in proceedings in the Supreme Court of New South Wales brought by Kieren Paul Weston (“Master Weston”). The first respondent was the registered owner and the second respondent was the driver of a prime mover that was involved in a collision with Master Weston on 22 July 2008 at Uralla on the New England Highway in New South Wales. Master Weston was 10 years old at the time. The proceedings that have been commenced by his Tutor allege that he rode his bicycle along a footpath which ran parallel to the New England Highway before riding onto the “wait area” of a marked pedestrian crossing where he came to stop. He is said to have commenced crossing the marked pedestrian crossing so as to cross the highway and, as he did so, the prime mover and/or the trailer it was towing collided with him. He sustained severe injuries as a result, including a traumatic amputation of the right leg.
[3] His injuries are alleged to have been caused by the first and second respondent’s breach of duty of care. In addition, Master Weston claims to be entitled to remedies in accordance with s 7J of the Motor Accidents Compensation Act 1999 (NSW) (“the NSW Act”). This entitlement is advanced on the basis that the first defendant’s prime mover was a motor vehicle that had motor accident insurance cover within the meaning of s 3B(2) of the NSW Act.
[4] In the defence they have filed in the New South Wales proceedings, the first and second respondents deny negligence and deny that Master Weston has “the special entitlement to recover damages” conferred by Division 2 of Part 1.2 of the NSW Act. That Division, which contains s 7J, confers an entitlement to recover damages in respect of injury to a child for hospital, medical, pharmaceutical, rehabilitation and certain other expenses in defined circumstances. Simply stated, the circumstances are where injury to a child results from a motor accident not caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. In such a case, the injury is, for the purposes of the special entitlement to recover damages conferred by Division 2, “deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle” if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident.
[5] Suncorp accepts that the statutory policy issued by it in respect of the first defendant’s vehicle responds to Master Weston’s claim in negligence. It disputes that the statutory policy responds to the claim to the special entitlement because s 5(1) of the Queensland Act under which the Suncorp policy was issued applies to injuries caused by a “wrongful act or omission”. Suncorp disputes that any injury which is “deemed to have been caused by the fault” of the first respondent or the second respondent in the use or operation of the prime mover that was involved in the accident was caused by a “wrongful act or omission” within the meaning of the Queensland Act.
[6] Because of the position taken by Suncorp, the first respondent and the second respondent are separately defending the New South Wales proceedings, and this has given rise to a carriage of defence issue. In a notice of motion filed on16 November 2011 in the New South Wales proceedings, Suncorp seeks leave to be joined as a party to those proceedings. The return date for Suncorp’s motion is 6 November 2012. However, Senior Counsel for Suncorp and their solicitors consider that the motion will not resolve the issue of policy response under the Queensland Act in relation to the “deemed fault” provided for by s 7J of the NSW Act. As a result, it filed an originating application in this Court on 7 June 2012 which seeks to have the issue of policy response in relation to the “deemed fault” of the owner or driver resolved so that Master Weston, the first respondent, the second respondent and Suncorp can conduct their affairs accordingly.
The declaratory relief sought
[7] Suncorp seeks declarations that:
1.Upon the proper construction of the statutory policy contained in the schedule to the Motor Accident Insurance Act 1994 (Qld), as at 22 July 2008, such policy responds to proven fault on the part of an insured under such policy, and does not respond to “deemed fault” of the owner or driver of a motor vehicle in New South Wales pursuant to section 7J of the Motor Accidents Compensation Act 1999 (NSW).
2.The said statutory policy does not respond to any claim by the third respondent against the first respondent and second respondent in respect of injury sustained by him on 22 July 2008, insofar as he relies on the said section 7J.
The issue
[8] The issue for determination on this application is whether the asserted liability of the first and second respondents to pay the special entitlement under s 7J of the NSW Act on the basis of their “deemed fault” is one to which the Queensland statutory policy responds. The issue turns on the meaning of “wrongful act or omission” under the Queensland Act.
The discretion to grant declaratory relief
[9] The issue of policy response raised by Suncorp’s application is not a hypothetical issue. It relates to a dispute principally between Suncorp and the first and second respondents, the determination of which will assist in the conduct and efficient resolution of the New South Wales proceedings. The contentious issue of policy response is essentially an issue of statutory construction, and was appropriately raised by way of an originating application in this Court. Because the contentious issue of policy response turns largely upon a question of statutory construction, and there is utility in making declarations in order to resolve that dispute, I am prepared to determine the application, rather than decline to do so on discretionary grounds.[1]
[10] The third respondent to the application, Master Weston, did not appear at the hearing of the application, but I was informed that Counsel for Master Weston had informed Counsel for the first and second respondents that Master Weston adopted the submission of the other respondents.
Relevant provisions of the Queensland Act
[11] One of the objects of the Queensland Act is to continue and improve the system of compulsory third-party motor vehicle insurance. For personal injury to be one to which the Act’s policy applies it is both sufficient and necessary that the injury be caused by, through or in connection with the relevant motor vehicle and:
(a)be a result of one (or more) of the circumstances set out in s 5(1)(a); and
(b)be caused by “a wrongful act or omission” by a person other than the injured person.[2]
The statutory policy can respond to an injury which occurs in Queensland or interstate, but only where there exists a “wrongful act or omission” by an insured person in respect of that injury. In such a case, the statutory policy of insurance secures a successful claimant’s position and responds directly in doing so as if the claimant was an “insured”.
[12] The policy of insurance is set out in the Schedule to the Act. Clause 1 defines the extent of insurance cover and provides, among other things, that the policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia. The policy extends to liability for personal injury caused by, through or in connection with a trailer attached to the insured motor vehicle. Subclause 1(4) provides:
“4.This policy does not insure a person (the injured person) against injury, damage or loss –
(a)that arises independently of any wrongful act or omission; or
(b)to the extent that the injury loss or damage is attributable to the injured person’s own wrongful act or omission.”
[13] Section 4 of the Act contains a non-exhaustive definition of “wrongful act or omission”. It provides:
“Wrongful act or omission includes a negligent act or omission”
Relevant provisions of the NSW Act
[14] Section 3A of the NSW Act sets out the general restrictions on the application of the Act. Relevantly for present purposes, it applies only in respect of the death of or injury to a person “that is caused by the fault of the owner or driver of a motor vehicle” and only if the death or injury is a result of or is caused in certain defined circumstances. Section 3B sets out restrictions on the application of claims provisions and relevantly limits them to injury that is caused by “a motor accident for which the vehicle has motor accident insurance cover”. Section 3B(2)(a) provides that for the purposes of the Act, the motor vehicle has motor accident insurance cover for a motor accident if and only if:
“at the time of the motor accident the motor vehicle was subject to coverage under a third-party policy or was subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth”.
As is apparent from the terms of this provision, the Act is intended to extend to a motor vehicle which causes a motor accident and which is subject to coverage under a compulsory third-party personal injury policy of the kind provided for in the Queensland Act.
[15] Part 1.2 of the NSW Act is headed “No-fault claims – children and blameless accidents”. Division 1 relates to “Recovery for blameless accidents” and Division 2 relates to “No-fault recovery by children”. Section 7J provides as follows:
“7JDamages for children where driver not at fault
(1)If the death of or injury to a child results from a motor accident not caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, the death or injury is, for the purposes of the special entitlement to recover damages conferred by this Division, deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident.
Note. Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident.
(2)If more than one motor vehicle involved in the motor vehicle accident has motor accident insurance cover for the accident, the death or injury is (for the purposes of that special entitlement) deemed to have been caused by the fault of the owner or driver of each such motor vehicle in the use or operation of the vehicle.
(3)The special entitlement to recover damages conferred by this Division is an entitlement to recover damages for the following in respect of the death of or injury to the child:
(a)hospital, medical and pharmaceutical expenses,
(b)rehabilitation expenses,
(c)respite care expenses,
(d)attendant care services expenses,
(e)funeral or cremation expenses.
(4)The special entitlement to recover damages for funeral or cremation expenses is an entitlement to recover those damages under the Compensation to Relatives Act 1897, but this Division confers no other entitlement to recover damages under that Act.
(5)The motor accident must occur in the State after the commencement of this Division and the child must be a resident of the State at the time of the motor accident.
(6)In this Division:
child means a person who is under 16 years of age at the time of the motor accident.”
[16] The section creates an entitlement to recover damages in circumstances in which injury to a child is “deemed to have been caused by the fault of the owner or driver” of a motor vehicle in the use or operation of the vehicle if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident.
[17] Section 3 of the NSW Act defines “fault” to mean “negligence or any other tort.”
[18] Section 7K concerns claims where the death of or injury to the child was caused by the fault of the child. In some circumstances a court is not to award damages pursuant to Division 2 if the conduct of the child that contributed materially to the death or injury constitutes “a serious offence” (as defined in s 7K(3)). Section 7K(5) provides:
“(5)There is to be no reduction of the damages provided for by this Division by reason of the contributory negligence of the deceased or injured person, except as provided by this section.”
[19] Section 7L provides:
“7LSpecial provision where child and driver at fault
In a case in which this Division would confer a special entitlement to recover damages in respect of the death of or injury to a child but for the fact that the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, a liability for damages of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (even though this Division does not confer that special entitlement in the case).
Note. The special entitlement to damages conferred by this Division is only applicable where the owner/driver is not at fault. Where the owner/driver is at fault, this section prevents a reduction in special entitlement type damages that would otherwise result from the contributory negligence of the child.”
The submissions of the parties
[20] Suncorp notes that there can be no doubt that the language “wrongful act or omission” in the Queensland Act includes not just damages for negligence but extends to a civil wrong in the character of other common law causes of action for damages for breach of contract or breach of statutory duty. It submits that the liability must be real, not fictional. The basis of liability provided for by s 7J of the NSW Act is said to not entail a “wrongful act or omission” in the requisite sense of being a breach or contravention of a legal duty of any kind which causes or contributes to injury. Suncorp points to the ordinary meaning of “wrongful” or “wrong” and notes that the Macquarie Dictionary defines “wrong” as “... 11 law, an act in breach of civil or criminal law ...” and “wrongful” as “1 full of or characterised by wrong. 2 Having no legal right; unlawful”.
[21] Suncorp’s submission characterises s 7J of the NSW Act as affording a statutory cause of action for damages against an owner or driver to the extent of the “special entitlement” referred to in s 7J(3) in circumstances in which injury was not caused by the fault of the owner or driver of the motor vehicle, being a liability which is based on the notion of “deemed fault”. The injury is “deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”. But this “deemed fault” is submitted not to amount to a “wrongful act or omission”.
[22] According to Suncorp’s submissions, the New South Wales Parliament by the enactment of these provisions in 2006 appears to have proceeded on the footing that a policy of compulsory third-party personal injury insurance of the kind provided under interstate legislation such as the Queensland Act would fall to be construed as embracing such “deemed fault”. However, according to Suncorp, this intention was not achieved because of the terms of the Queensland Act.
[23] The first and second respondents contest these submissions by reference to the terms of the Queensland Act. The NSW Act provides in effect that a driver who injures a child who is a resident of New South Wales in a motor accident that occurs in that State through the use of a registered motor vehicle is at “fault”. It is inappropriate to resort, as Suncorp’s submissions do, to the notion that a “wrongful act or omission” is a civil wrong in the character of a common law cause of action for breach of contract or breach of statutory duty. The NSW Act provides that the driver is deemed to have been at “fault”. Fault is defined in the NSW Act to mean “negligence or any other tort”. Accordingly, the liability created by s 7J deems the injury to have been caused by the “fault” of the owner or driver and fault (as defined) amounts to a “wrongful act or omission” within the meaning of the Queensland Act. It is an act or omission that amounts to a “legal wrong” and this results in legal liability. Expressed differently, causing injury to a child in the circumstances defined by s 7J is a legal wrong by reason of that section. That the driver’s conduct might not have been “wrongful” in a moral or ethical sense (for instance, by reason of the absence of negligence, recklessness or deliberate trespass) is not to the point.
[24] The first and second respondents submit that there is no reason to conclude that the Queensland Parliament intended the expression “wrongful act or omission” to require an act or omission that was wrongful in a moral or an ethical sense. It refrained in s 4 of the Queensland Act from defining the expression “wrongful act or omission” exhaustively so as to limit it to negligence or deliberate wrongdoing. Instead, it defined the term only so as to include negligence.
[25] The parties’ submissions seek to bolster their positions about the terms of the legislation by reference to policy arguments which I will summarise briefly.
[26] Suncorp relies upon second reading speeches, including one which contains general references to the fact that the Queensland compulsory third party motor vehicle insurance scheme “ensures that people injured on our roads as a result of negligence are guaranteed compensation and that the legal liability of owners and drivers is fully protected.”[3] That speech also stated that affordability is a key in maintaining a high proportion of insured and registered vehicles, without which the scheme itself would not be viable. I do not consider that these general statements provide any real assistance in resolving the issue of statutory interpretation. Section 4(b) of the Queensland Act includes among its objects “to keep the costs of insurance at a level the average motorist can afford”. The object of providing compulsory third-party motor vehicle insurance to protect owners and drivers against legal liability that arises from a wrongful act or omission and the object of ensuring the affordability of insurance are in tension. Not extending insurance cover to a legal liability which an insured driver or owner may incur may enhance the affordability of insurance, but at the expense of protecting owners and drivers from the consequences of legal liability.
[27] Suncorp submits that the scheme in Queensland would be burdened financially by exposure to claims in New South Wales where, in truth, no “wrongful” conduct is entailed. The Queensland Act scheme is said not to be serviced by such a result. In particular, the insurer would be obliged to afford rehabilitation despite the relevant act or omission not being in fact wrongful in character. The insurer would have to outlay sums to compromise a deemed fault claim.
[28] These policy arguments are met, in my view, by competing submissions advanced by the first and second respondents. These have their starting point in the fact that interstate travel is a major and common aspect of Australian life and that, as a matter of policy, it would be undesirable for citizens of Queensland to take out compulsory third-party insurance, believing that such insurance was to protect them from any personal injury claim arising out of a motor vehicle accident on public roads (and elsewhere) in Australia, only to find that there was an uninsured “gap” in their cover. In such a case, an uninsured party might be liable for several million dollars. Equally, it is undesirable that injured plaintiffs should be left without recourse to an insured defendant.
[29] The first and second respondents submit that, having regard to the policy of the Queensland Act and the notion of compulsory third-party insurance, the Act should be construed so as to provide coverage to a registered owner in all circumstances throughout the Commonwealth of Australia. This is particularly the case where there is no evidence that the Queensland Parliament, by clear words, sought to exclude indemnity for causes of action available to injured plaintiffs against “CTP insured drivers” in other States. As to coverage and affordability issues, the first and second respondents submit that a CTP insurer such as Suncorp should have regard to the fact that its coverage is Australia-wide, and that in different States and Territories there will be different rights of recovery. This is so not only in relation to how damages are calculated, but also in relation to whether, in certain sets of circumstances, damages are available at all.
Discussion
[30] The issue for determination is not the intention of the New South Wales Parliament in enacting the provisions that include s 7J of the NSW Act, and whether it intended that the liability to pay damages would be covered by a compulsory third-party personal injury insurance scheme of the kind provided by the Queensland Act. The issue is the meaning of “wrongful act or omission” in the Queensland Act and whether the statutory policy contained in the Queensland Act responds to a case of “deemed fault” pursuant to s 7J of the NSW Act.
[31] Suncorp correctly submits that s 7J is predicated on the motor accident having not been caused by the fault of the owner or driver. However, that is only one element of the section which, as a whole, deems the owner or driver to have been at fault in certain circumstances, giving rise to a liability to pay damages. Suncorp submits that “the liability must be real, not fictional”. However, the liability imposed by s 7J is real. This section creates a form of liability to pay damages in the absence of negligence or the commission of another tort. The liability arises when injury to a child results from a motor accident in circumstances in which the motor vehicle was involved in the accident and had motor accident insurance cover for the accident. In such circumstances, a liability to pay damages in the form of the special entitlement conferred by Division 2 applies, and the injury is deemed to have been caused by the fault (i.e. the negligence or other tortious conduct) of the owner or driver. A category of legal liability is created by statute in which injury “is deemed to have been caused by the [negligence or any other tort] of the owner or driver.”[4] Such a legal liability falls within the ordinary meaning of “wrongful act or omission” in the Queensland Act.
[32] The text of the Queensland Act, and the context in which relevant provisions of it appear, do not suggest that a “wrongful act or omission” is confined to a common law cause of action. If a statute creates a right to recover damages in circumstances where a party is deemed to have been negligent or committed a tort, then the cause of action may be characterised as one involving a “wrongful act or omission”.
[33] Once it is acknowledged, as Suncorp’s submissions do, that the language “wrongful act or omission” extends to a civil wrong in the nature of common law causes of action for damages for breach of contract or breach of statutory duty, it is hard to see why it does not extend to a statutory cause of action to recover damages under a provision such as s 7J of the NSW Act.
[34] It is unnecessary to characterise the liability created by s 7J as one of strict liability. Such labels are unnecessary and have the potential to mislead. Instead, it is sufficient to observe that many statutes, including consumer protection statutes, create a liability to pay to an injured party damages in the absence of actual negligence.
[35] If the New South Wales Parliament simply had enacted a statute of general application to the effect that a driver whose vehicle is involved in an accident in which a child is injured is deemed to have caused the accident and is deemed to have been at fault in the absence of proof to the contrary, then such a provision which conferred an entitlement to damages in such a case would readily be characterised as entailing a “wrongful act or omission”. A similar statute that did not contain provision for the driver to demonstrate the absence of fault would be of the same character. Section 7J is of a similar character, albeit not a statute of general application. Its limitation to cases in which the motor vehicle has motor accident insurance cover for the accident does not alter the essential point that a driver found liable under such a provision is deemed to have been at fault. Being deemed to have been at fault, the driver is taken to have been negligent or to have committed some other tort. This amounts to a “wrongful act or omission” according to the ordinary meaning of those words.
[36] The Queensland Act does not confine, by definition or otherwise, the term “wrongful act or omission” to common law causes of action. The objectives of the legislation would not be advanced by interpreting the language “wrongful act or omission” as limited to a civil wrong in the character of a common law cause of action. Such an interpretation would be apt to deprive insured parties of coverage in respect of civil liabilities that are the creature of statute and which, by their terms, rest such liability upon conduct defined by the statute to be tortious.
[37] The terms and purpose of the relevant provisions of the Queensland Act support the conclusion that the statutory policy contained in the schedule to the Queensland Act may respond to the “deemed fault” of an owner or driver of a motor vehicle in New South Wales pursuant to s 7J of the NSW Act. In such a case the relevant “injury, damage or loss” does not arise “independently of any wrongful act or omission”. The law deems it to be the case that the injury was caused by the fault of the owner or driver. Fault is defined to mean negligence or any other tort and this constitutes a “wrongful act or omission” within the meaning of the Queensland Act.
[38] The provisions of s 7K(5) and s 7L of the NSW Act do not compel a different conclusion. Provisions which have the effect of not permitting a reduction of damages by reason of contributory negligence of the child may have implications in respect of the extent of coverage. They do not compel the conclusion that the policy does not respond to a claim in respect of liability to pay s 7J damages.
[39] Reference was made by Senior Counsel for Suncorp to Manteufel v QBE Insurance Ltd[5] in which Samios DCJ concluded that the liability to pay compensation pursuant to a court order made under the Criminal Offence Victims Act 1995 (“the Victims Act”) was not a “liability for personal injury” within the meaning of the Queensland Act. Part of his Honour’s reasoning is that criminal compensation has its genesis in conviction for commission of a criminal offence, and was excluded by cl 1(4) of the statutory policy. A distinction was made between a claim for damages and compensation ordered under the Victims Act. The Act’s provisions about claims addressed the former. Liability under a compensation order did not give rise to a claim for damages. His Honour’s reference to the purpose of the Act being to provide indemnity for common law damages should be understood in its context. His Honour was not required to consider the present issue, namely indemnity for damages that are recoverable in civil proceedings where the liability to pay damages is created by statute. The liability to pay compensation pursuant to the Victims Act by reason of the commission of a criminal offence following upon a court order is of a different character to a cause of action to recover damages in a civil claim in respect of conduct which is deemed to be negligent or otherwise tortious.
[40] Suncorp argues that s 7J of the NSW Act “cuts across the ability to discern the Qld Act s 5 prerequisite to indemnity”. The relevant “deeming” in general terms is said to preclude or inhibit the necessary inquiry, for policy response, contained in s 5(1)(b) of the Queensland Act. This requires a “discernible and rational link between the basis of legal liability and the motor vehicle concerned.”[6] I do not accept that the suggested problem requires a different interpretation to be given to the term “wrongful act or omission” in the context of s 7J of the NSW Act. The relevant issue concerns the policy response of the statutory policy in the Queensland Act with respect to s 7J damages. It does not affect any issue of policy response with respect to other claims, such as claims for damages at common law for negligence. The entitlement to claim damages pursuant to s 7J is governed by the terms of Division 2. The deemed fault imposed by s 7J is “for the purposes of the special entitlement to recover damages” conferred by that Division, not for any other purpose. The section operates upon certain facts, namely:
1.Injury to a child resulting from a motor accident;
2.The motor vehicle was involved in the accident;
3.The motor vehicle had motor accident insurance cover for the accident;
4.The motor accident was not caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
In such circumstances the injury is “deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle” for the purposes of the special entitlement to damages conferred by Division 2. The facts, including deemed facts, upon which s 7J is based do not preclude the inquiry called for by s 5(1)(b) of the Qld Act. The terms of the section itself disclose the link between the basis of liability and the motor vehicle concerned.
[41] My conclusion concerning the proper interpretation of the statutory policy and whether the policy responds to “deemed fault” pursuant to s 7J of the NSW Act is supported by the fact that Queensland citizens and businesses engage in interstate travel and the policy of the Act is to protect owners and drivers of insured vehicles that travel in other States. The purpose of the policy is to protect them against legal liability to pay damages in respect of common law and statutory causes of action for acts and omissions that the law defines to be a tort or other civil wrong. Section 7J of the NSW Act is such a law, and it would be contrary to the scheme of compulsory insurance to leave a gap in policy coverage for owners and drivers against such a liability. Such an uninsured gap also would have undesirable consequences for injured persons. The purpose of continuing and improving the system of compulsory third-party motor vehicle insurance would not be advanced by an interpretation which exposed insured persons to such consequences.
[42] If the Queensland Parliament had intended such a gap to exist in the policy’s coverage, possibly in the interests of advancing the affordability of insurance under the statutory insurance scheme, then such an intent should have been reflected in the words of the statute, or admissible extrinsic material which made plain that, despite its definition of “wrongful act or omission”, the Queensland Act was not intended to extend to a liability to pay damages pursuant to statutes such as s 7J of the NSW Act.
[43] The purpose of the Act, and the provision of compulsory third-party motor vehicle insurance to insured persons who travel interstate, is best advanced by an interpretation which recognises that the expression “wrongful act or omission” is not confined to common law causes of action. As a matter of interpretation, the expression “wrongful act or omission” extends to acts and omissions that are deemed by the law to be the fault of the owner or driver of the insured vehicle and which give rise to a legal liability to pay damages.
Conclusion
[44] I decline to declare that the statutory policy does not respond to any claim by Master Weston against the first and second respondent in respect of injury sustained by him on 22 July 2008, insofar as he relies on s 7J of the NSW Act. I decline to make the declarations sought by Suncorp. Its application will be dismissed. I will hear the parties, if required, on the question of costs. However, there seems no reason as to why costs should not follow the event.
Footnotes
[1] cf King’s College v Allianz Insurance Australia Ltd [2004] 1 Qd R 394 at [15]-[25] where the appropriateness of determining applications of the present kind and the inappropriateness of making declarations in respect of hypothetical questions and abstract issues was considered.
[2] Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30 at 39 [26]; [2000] QCA 512.
[3] Second reading speech of The Treasurer, The Honourable David Hamill, with respect to the Motor Accident Insurance Amendment Bill (No 2) 1999, Queensland Hansard, 10 November 1999, p 4824.
[4] Inserting the definition of “fault” in the NSW Act.
[5] (2000) 21 Qld Lawyer Reps 32.
[6] Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45 at 47. See also Lawes v Nominal Defendant [2008] 1 Qd R 369 in respect of the inquiry called for by s 5(1)(b).