AMP General Insurance Ltd v Kull

Case [2005] NSWCA 442

Reported Decision:

 (2006) 14 ANZ Insurance Cases 61-687

Court of Appeal


CITATION:

AMP General Insurance Ltd. v. Kull & Anor. [2005] NSWCA 442
HEARING DATE(S):

27 September 2005
 
JUDGMENT DATE: 


12 December 2005

JUDGMENT OF:

Giles JA at 1; Hodgson JA at 17; Santow JA at 78
DECISION:

1. Appeal and cross-appeal allowed to the extent of substituting, for the verdict of $178,788.00 for Mr. Kull against Mr. Maloney, a verdict of $118,788.00 to take effect on 29 November 2004. 2. Appeal and cross-appeal otherwise dismissed. 3. Order that AMP pay one-half of Mr. Maloney’s costs of the appeal and cross-appeal, and that otherwise each party bear its own costs of the appeal, with Mr. Kull to have a certificate under the Suitors Fund Act in respect of his own costs if otherwise eligible.
CATCHWORDS:

TORT - Negligence - accident - Meaning of injury - Injury to plaintiff's hand when starter motor activated to test if plaintiff had fixed a problem - Whether injury a result of and caused during the driving of the vehicle or a collision with the vehicle - INSURANCE - Whether owner's liability covered by a public risk insurance policy.
CASES CITED:

Allianz Australian Ltd. v. GSF Australia Ltd. (2005) 215 ALR 385
AMP General Insurance Ltd. v. Maguire [2004] NSWCA 64, 59 NSWLR 580
Darlington Futures Ltd. v. Delco Australia Pty. Ltd. (1986) 161 CLR 500
Dickinson v. Motor Vehicle Insurance Trust (1987) 163 CLR 500
Giorginis v. Kastrati (1988) 48 SASR 371
Government Insurance of NSW v. King (1960) 104 CLR 93
Government Insurance Office (New South Wales) v. R.J. Green
HIH Casualty & General Insurance Ltd. v. Pluim Constructions Pty. Ltd. [2000] NSWCA 281
Insurance Commissioner of Western Australia v. Container Handlers Pty. Ltd. [2004] HCA 24, 218 CLR 89
Mercantile Mutual Insurance (Aust) Ltd. v. AAMI Ltd. [1999] NSWCA 200, 29 MVR 393
QBE Insurance (Aust) Ltd. v. Smith [2005] NSWCA 130
Ricketts v. Laws (1988) 14 NSWLR 311
Shortland County Council v. Government Insurance Office of NSW [1973] 2 NSWLR 257
Townsville Trade Waste Pty. Ltd. v. Commercial Union Insurance Co. of Australia Ltd. [1999] QCA 386, 29 MVR 503
Trajkovski v. Ken’s Painting & Decorating Services Pty. Ltd. [2002] NSWSC 568
PARTIES:

AMP General Insurance Limited - appellant
Frederick Kull - 1st respondent
Peter Maloney - 2nd respondent

FILE NUMBER(S):

CA 41157/04
COUNSEL:

Mr. D.J. Russell SC with Mr. S. McCarthy for appellant
Ms. S. Norton SC with Ms. M. Fraser for 1st respondent
Mr. G. Watson SC with Mr. A. McInerney for 2nd respondent
SOLICITORS:

Ebsworth & Ebsworth, Sydney for appellant
Bryden's Law Office, Liverpool for 1st respondent
Lee & Lyons, Sydney for 2nd respondent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 7778/00

LOWER COURT JUDICIAL OFFICER:

Twigg ADCJ




                          CA 41157/04
                          DC 7778/00

                          GILES JA
                          HODGSON JA
                          SANTOW JA

                          Monday 12 December 2005

AMP GENERAL INSURANCE LTD. V. KULL & ANOR.


Judgment


1 GILES JA: For the reasons given by Hodgson JA,…

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AGLC
AMP General Insurance Ltd v Kull [2005] NSWCA 442
Case
[2005] NSWCA 442
Decision Date

CaseChat Overview and Summary

AMP General Insurance Ltd appealed and Mr. Kull cross-appealed against a decision of the Supreme Court of New South Wales concerning an insurance claim arising from an injury sustained by Mr. Kull. The dispute centred on whether Mr. Kull's injury, which occurred when a vehicle's starter motor activated while he was attempting to fix a problem, was covered by a public risk insurance policy issued by AMP to the vehicle's owner, Mr. Maloney. The primary judge had found Mr. Maloney liable for Mr. Kull's injuries and awarded damages.

The central legal issues before the Court of Appeal were whether Mr. Kull's injury constituted an "injury" as defined by the relevant legislation, and whether that injury was a result of and caused during the driving of the vehicle or a collision with the vehicle. AMP argued that the injury did not fall within the scope of the policy, as it did not arise from the driving or a collision.

The Court of Appeal considered the meaning of "injury" in the context of the Motor Accidents Act 1988 (NSW) and the terms of the public risk insurance policy. It reasoned that the activation of the starter motor, while not directly related to driving or a collision, was an incident that occurred in connection with the vehicle's use and maintenance. The court found that the injury was a consequence of the vehicle's operation, even if not during active driving. The court also adjusted the quantum of damages awarded to Mr. Kull.

Consequently, the appeal and cross-appeal were allowed in part, resulting in a reduction of the damages awarded to Mr. Kull. The court ordered that AMP pay half of Mr. Maloney's costs of the appeal and cross-appeal, with other costs to be borne by the respective parties.

Orders

Orders of the court

1. Appeal and cross-appeal allowed to the extent of substituting, for the verdict of $178,788.00 for Mr. Kull against Mr. Maloney, a verdict of $118,788.00 to take effect on 29 November 2004. 2. Appeal and cross-appeal otherwise dismissed. 3. Order that AMP pay one-half of Mr. Maloney’s costs of the appeal and cross-appeal, and that otherwise each party bear its own costs of the appeal, with Mr. Kull to have a certificate under the Suitors Fund Act in respect of his own costs if otherwise eligible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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