AMP General Insurance Ltd v Kull & Anor

[2006] HCATrans 494

[2006] HCATrans 494

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S16 of 2006

B e t w e e n -

AMP GENERAL INSURANCE LIMITED

Applicant

and

FREDERICK KULL

First Respondent

PETER MALONEY

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 9.48 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant (“AMP”) is the insurer of the second respondent, Mr Maloney, who is the defendant to proceedings brought by the first respondent, Mr Kull, seeking damages for personal injuries.  The cause of action arose after an incident in which Mr Maloney turned the ignition key and started the motor of a Toyota Landcruiser owned by Mr Maloney while Mr Kull was trying to adjust the fan belt of the vehicle, thereby causing injury to Mr Kull’s hand.  Mr Kull commenced proceedings in the District Court of New South Wales against Mr Maloney, who defended the action on the basis that the claim was governed by the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) and that, since Mr Kull had not complied with its formal provisions, his action could not succeed. In the alternative, Mr Maloney cross-claimed for indemnity from AMP under either a general insurance policy or a public liability insurance policy held with it.

In the District Court, Twigg ADCJ held that: (1) the proceedings were not governed by the Act; (2) Mr Maloney was entitled to indemnity from AMP under the general policy; and (3) it was not necessary to consider whether the public liability policy responded. Twigg ADCJ gave judgment in favour of Mr Kull on the claim, and against AMP on the cross‑claim for indemnity. AMP appealed to the Court of Appeal of the Supreme Court of New South Wales (Giles, Hodgson and Santow JJA), which unanimously affirmed the decision of Twigg ADCJ on the first issue; by majority (Giles JA and Santow JA), the Court of Appeal reversed it on the second issue; and, by a different majority (Hodgson JA and Santow JA), determined the third question against AMP. In the event, the Court of Appeal dismissed the appeal save as to quantum, but it did so on the basis that the public liability policy responded not the general policy.

In its application for special leave to appeal to this Court, AMP contends that the Court of Appeal erred in its treatment of the first and third issues. On the first issue, all members of the Court of Appeal held that the Act did not apply because the incident did not meet the definition of “injury” in s 3 of the Act. This was because the damage to Mr Kull’s hand did not occur in “the driving” of the vehicle (par (i) of definition of “injury”) or by reason of a “collision” with the vehicle (par (ii) of definition of “injury”). On the third issue, Hodgson JA and Santow JA held that the public liability insurance policy responded because Exclusion 1b(i) did not apply. This exclusion clause provided that AMP was not liable to pay for any claims:

“1.  [a]rising directly or indirectly out of or caused by or in connection with ...

b.  the use of any Vehicle ... in respect of which insurance is required by any legislation relating to the registration of motor vehicles”.

Their Honours construed the clause contra proferentem and in accordance with an inferred intention that the policy provide cover against claims arising from the use of a motor vehicle which claims were not covered by the compulsory third party policy under the Act. Their Honours each held that the words “in respect of” qualified the word “use” (Hodgson JA) or the composite expression “use of any Vehicle” (Santow JA), and concluded that the claim did not arise out of the use of the vehicle in the relevant sense.

The application for special leave to appeal should be refused with costs. On the first issue, the definition of “injury” in the Act has recently been considered by this Court in Allianz Australia Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568, albeit in the context of par (iv) of the definition of “injury”, and the meaning of “the driving” of a motor vehicle has been considered in the analogous Western Australian statute in Insurance Commission (WA) v Container Handlers Pty Ltd (2001) 218 CLR 89. The decision of the Court of Appeal was not inconsistent with those decisions. On the other issue, the legal principles relevant to construction of exclusion clauses in insurance policies are well known and the decision of the Court of Appeal turned on construction of a particular clause in a particular policy. Therefore, neither of AMP’s proposed grounds raises any general issue of law of public importance sufficient to merit a grant of special leave. Nor do the interests of justice require the intervention of this Court.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave to appeal with costs.  I publish the disposition signed by Heydon J and myself.

AT 9.53 AM THE MATTER WAS CONCLUDED