Australian Associated Motor Insurers Limited (ACN 004 791 744) v Elmore Haulage Pty Ltd (ACN 006 201 252)
[2013] VSCA 54
•19 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0070
| AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744) | Appellant |
| v | |
| ELMORE HAULAGE PTY LTD (ACN 006 201 252) | Respondent |
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| JUDGES | WHELAN JA, KAYE and VICKERY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 March 2013 |
| DATE OF JUDGMENT | 19 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 54 |
| JUDGMENT APPEALED FROM | Elmore Haulage Pty Ltd v Australian Associated Motor Insurers Limited (Unreported, County Court of Victoria, 30 March 2012, Judge Bowman) |
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INSURANCE – Motor vehicle insurance – Indemnity in respect of liability for loss or damage resulting from use of vehicle – Exclusion in respect of liability for loss or damage intentionally caused by insured – Head on collision involving insured’s motor vehicle – Whether driver of insured’s vehicle intending to commit suicide – Application of principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – Whether inference of suicide more probable – Whether exclusion clause of policy applied, in the event of a finding that driver of insured vehicle intended suicide.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M P Barrett | Ligeti Partners |
| For the Respondent | Mr C M Archibald | Thomsons Lawyers |
WHELAN JA:
I agree with Kaye AJA.
VICKERY AJA:
I have also had the advantage of reading the reasons of Kaye AJA in draft form. I agree with his Honour’s reasons.
KAYE AJA:
Shortly after 11.00 pm on 30 April 2009, a Ford Laser sedan motor vehicle, driven by James Boot, came into collision with a Kenworth truck on the Princes Highway, Mt Moriac. The prime mover was driven by Steven Pevitt, in the course of his employment with the respondent, Elmore Haulage Pty Ltd. Mr Boot died as a result of injuries which he sustained in the collision. The prime mover, driven by Mr Pevitt, was towing a trailer containing a load of live sheep. As a consequence of the collision, the prime mover and trailer sustained extensive damage.
The vehicle driven by Mr Boot was insured by the appellant, Australian Associated Motor Insurers Ltd. As a consequence of the death of Mr Boot, the respondent commenced proceedings against the appellant, pursuant to s 51 of the Insurance Contracts Act 1984 (Cth), to recover damages on the basis that Mr Boot was liable, in negligence, for the collision. In response, the appellant alleged that Mr Boot had intentionally collided with the truck in order to commit suicide. The appellant relied on a clause in the policy of insurance which, in effect, excluded ‘loss or damage caused intentionally by you (the insured) or a person acting with your express or implied consent’.
The principal issues at trial were, first, whether Mr Boot intentionally collided with the truck, secondly, if so, whether damage caused by that conduct came within the exclusion clause of the insurance policy, and, thirdly, if not, whether the respondent had proven the loss and damage claimed by it.
After a trial lasting two days, the County Court judge, in a reserved judgment, held that the appellant had not proven that Mr Boot had intentionally driven the Ford Laser vehicle into the truck. His Honour further found that, if the appellant had proven that the collision was intentional, Mr Boot’s conduct did not come within the exclusion clause. The judge held that the respondent had proven loss and damage in the amount of $165,226.79.
The grounds of appeal raise four principal issues, namely:
(1)Whether the trial judge erred in finding that the appellant had not proven that the collision was caused by the intentional act of Mr Boot.
(2)Whether the trial judge erred in holding that, if the collision was intentional, the exclusion clause did not apply to it.
(3)Whether the trial judge erred in holding that the respondent had proven that it was the owner of the truck and trailer.
(4)Whether the trial judge erred in awarding certain items of the loss and damage claimed by the appellant.
Circumstances leading to the collision
At the date of his death, Mr Boot was a young man aged 19 years. He was single, living at home with his parents in Highton. Mr Boot was employed in the photographic centre of a Kmart store, but he had intentions of undertaking an information technology course. His close friend, Caleb Byrt, described Mr Boot as a friendly, sociable person who was easy to get on with. He was helping his father to restore an old car. Mr Byrt said that Mr Boot ‘… always had to be driving his car, he was always giving everyone else a lift’.
On the morning of 30 April, Mr Byrt did some shopping with Mr Boot in the company of another friend, Anisha Sorabji (another friend of Mr Boot, whose statement was placed in evidence). Having done so, they parted company. Later in the day, Mr Boot picked up Mr Byrt in the Ford Laser at about 7.30 pm, and then drove to Ms Sorabji’s residence. Subsequently, they drove in Mr Boot’s vehicle to Torquay to attend a concert. When they arrived there, they changed their plans, and instead they played the poker machines for a short time. Mr Boot won some money, and Mr Byrt, in his evidence, said that Mr Boot had been uplifted by doing so.
After about half an hour, Mr Boot, Mr Byrt and Ms Sorabji left the Torquay hotel, none of them having consumed any alcohol. At Ms Sorabji’s request, Mr Boot drove to Point Addis. They sat there for some time, and chatted. Mr Boot then drove them home. He dropped Mr Byrt at his house in Grovedale. Mr Byrt stated in his evidence that at that time all three of them were getting a bit tired, so the mood amongst them was ‘a bit flat’. He said that Mr Boot, on the drive home, was a ‘bit flat and tired’. He said, however, that there was nothing in James Boot’s behaviour that day, or in the weeks leading up to it, which suggested that he was depressed, or which gave Mr Byrt cause for any concern about his friend.
Having left Mr Byrt at his home, Mr Boot then drove Ms Sorabji to her house. In her statement, she said that Mr Boot was quiet during that drive, and that he yawned a couple of times. When he dropped her home, he told her that he was tired and that he was going straight home to bed. Ms Sorabji said that Mr Boot and she had been good friends for about five years. His grandmother had passed away one year previously (in August 2008), and that he had had his down times over that. However, from their conversations, Mr Boot never said that he had suicidal thoughts.
Mr Boot then returned to his home in Highton and went to his bedroom. At 10.41 pm, he made the following entry on his Facebook page: ‘James Boot loves everyone forever. And is very sorry for everything:(‘. (The evidence was that the colon and the bracket at the end of the message are a symbol for a sad face). That entry received four replies, and it was apparent that three of the persons who made those replies had some concern for Mr Boot’s wellbeing.
Some time later that evening, Mr Boot left his bedroom and told his mother that he was going for a drive. Mrs Boot said that, at that time, her son appeared normal, and there was nothing to indicate that he was in any way unstable.
The collision
The collision occurred in a rural area. The prescribed maximum speed limit was 100 kph. At the time of the collision, Mr Boot’s Ford Laser was headed in an easterly direction, that is, back towards Highton and Geelong. Thus, after leaving his home, he would have travelled in a westerly direction, and then turned back east towards home. The prime mover, driven by Mr Pevitt, was heading in a westerly direction towards Warrnambool.
At the time of the collision, the road was dry, the weather fine, the traffic conditions were light, and visibility was good. There was a broken white line in the centre of the road applicable to traffic travelling in an easterly direction (that is, in the direction of Mr Boot’s vehicle). There was a continuous white line in the centre of the road applicable to traffic travelling in a westerly direction (that is in the direction of Mr Pevitt’s vehicle). The stretch of road on which the collision took place was straight, with an uphill slope at the western end of it. According to Senior Constable Monahan, who attended at the scene after the accident, the westbound lane of the highway was 3.4 metres in width, and the eastbound lane was 3.6 metres in width.
The only witness to the collision was Mr Pevitt. The vehicle which he was driving was a Kenworth cab over prime mover. There was a bullbar affixed to the front of it. The configuration of the cabin of the prime mover was such that the driver was more or less sitting on top of the engine at the front. The vehicle’s fuel tank was behind and underneath the driver, and was approximately 15 centimetres above the ground.
As Mr Pevitt came over a rise leading to the section of the road on which the collision occurred, he noticed a couple of vehicles approximately 800 metres in front of him, coming towards him. Mr Pevitt was then travelling at 100 kph, and the two vehicles, approaching him, appeared to be travelling at the same speed. They were about three or four car lengths apart. Mr Pevitt stated that the first vehicle passed him. Then, as the second vehicle approached him, at a distance of approximately 200 metres from him, it crossed the centre white line, and held its position, with approximately one quarter of the width of the car on the incorrect side of the road. When that vehicle was approximately 100 metres from his truck, the oncoming vehicle then drove directly straight in front of him.
When Mr Pevitt first noticed the vehicle diverge over the white line, he removed his foot from the accelerator and applied the brakes. He started to reduce the truck’s speed, and moved as far to the left as he could. As a result, the left hand side of the prime mover was just onto the gravel verge at the side of the road, off the bitumen. Mr Pevitt held that position and continued to brake. However, the other vehicle was then completely into his lane, and it hit the prime mover on the driver’s side of the truck.
As a result of the collision, the front right tyre of the truck was deflated. That caused the fuel tank to hit the ground, resulting in a hole to the fuel tank. Mr Pevitt was left without steering, and braking as hard as he could without causing the truck to jackknife or overturn. He hung onto the steering wheel. He could see, from the driver’s side mirror, flames along the bitumen, being the ignition of the spilt fuel. Ultimately, the truck moved over to the right hand side of the road, and ended up on top of an embankment. Mr Pevitt grabbed his telephone and wallet, removed his dogs from the cabin, and made a hasty exit from the truck. He only did so just in time, as the prime mover went up in flames shortly after he had got out of it. As a result, the truck was totally destroyed, and there was also substantial damage to the trailer.
In cross-examination, Mr Pevitt said that there were raised bumps or corrugations along the middle of the road, which were designed to alert a driver if he drove over them. He confirmed that before the first car had passed him, the second vehicle (driven by Mr Boot) was already on Mr Pevitt’s side of the road. The second vehicle was then about 200 metres from him. Mr Pevitt repeated that that vehicle had moved in two stages, the first being approximately a quarter of its width across the line. On the second occasion, when it was 100 metres away, it moved completely onto Mr Pevitt’s side of the road. Mr Pevitt could see no reason why the oncoming vehicle had crossed the centre line, as it was not overtaking any other vehicle.
Leading Senior Constable Monahan (‘LSC’) arrived at the scene approximately half an hour after the collision. He stated that he observed no skid marks or tyre marks on the roadway. He established the point of impact on the westbound lane, 0.8 metres from the centre of the road. At that point there were large gouge marks in the bitumen surface.
LSC Monahan observed that the major area of impact on the truck was on the offside (driver’s) front, around the bullbar and the headlight area. In cross-examination, he agreed that, from his observation, the front right panel of the Laser vehicle, around its headlight area, collided with the front right side of the truck around its headlight. Thus, he agreed that it was not a complete ‘head on’ collision. At that point the right hand side of the Laser vehicle was on the incorrect side of the road. He agreed that it was possible that, on impact, the left side of the Laser would have been around the centre of the road or on its correct side of the roadway.
LSC Monahan also stated, in his evidence, that when Mr Boot’s mobile telephone was removed from his trousers, it was locked, and there was nothing to suggest that he had been using it at the time of the accident.
The plaintiff also called Dr Paul Kornan, a consultant psychiatrist, to give evidence. Dr Kornan was specifically requested not to express any conclusions as to whether Mr Boot had intended to commit suicide. Rather, Dr Kornan was requested to direct his attention to the hypothetical state of mind of a person, in Mr Boot’s position, who had such an intention.
In his report, Dr Kornan stated that, in the hypothetical situation of a person who is intent on committing suicide, it was probable that the thoughts of suicide would have been developing for some time. In general terms, such a person would be totally focused on the act which they would envisage would happen. As a matter of probability, such a person would not have an intention or contemplation of damage, or of causing harm, to other vehicles or persons. There would be no thought of the consequences to the other vehicle, or that the other driver might be injured or left with significant psychiatric injury as a result. In cross-examination, Dr Koran stated that if someone in the position of Mr Boot intended to commit suicide by driving into a truck, that person’s total preoccupation would be putting himself in a position to make sure that death took place.
In his report, Dr Kornan stated that, in these times, it is likely that a person, on Facebook, would reveal his or her intentions in either a direct or indirect manner. In cross-examination, he agreed that the Facebook entry by Mr Boot was consistent with a person who intended to commit suicide. He agreed that most people would understand that a head on collision, at high speed with a large vehicle, is an effective way of ending life. In such a position, such a person would deliberately drive into a truck to achieve that purpose. Dr Kornan also agreed that it is commonly the case that people, who are contemplating suicide, behave quite normally in the period leading up to the final act, and give no sign of their intention.
The trial judge’s reasons for judgment
In thorough and methodical reasons for judgment, the trial judge set out, in detail, the relevant evidence, and the competing submissions of counsel.
His Honour accepted a submission on behalf of the respondent that, in light of the seriousness of the allegation that Mr Boot had committed suicide, a finding to that effect should not be lightly made, and that any such finding should be based on a careful scrutiny of the evidence.
The judge then addressed the question whether it had been established on the balance of probabilities that Mr Boot intended to commit suicide at the time of the collision. His Honour observed that if it were not for the Facebook entry, the available evidence would fall a long way short of establishing an intention to commit suicide. He noted that there was nothing in Mr Boot’s background, or his behaviour, which suggested that he was suffering from any mental illness, or that he was contemplating ending his life. His Honour considered that Mr Boot’s driving, just before the fatal collision, could be viewed as being ‘… equally consistent with negligence, lack of attention, falling asleep at the wheel or the like’.[1] The judge noted that the Facebook message was consistent with an intention to commit suicide, but that it was not an explicit statement of any such intention.[2] Further, it remained a mystery as to why Mr Boot, having gone home that night, then went for a drive.
[1]Reasons for judgment [67].
[2]Reasons for judgment [68].
The judge then considered the movements of Mr Boot’s vehicle in the last moments before impact. He noted Mr Pevitt’s evidence that, when the Ford Laser was within one hundred metres of the truck, it came directly across the road in front of Mr Pevitt’s vehicle. Thus, Mr Pevitt had placed Mr Boot’s vehicle entirely in his lane, and Mr Pevitt, at that stage, had moved as far to the left as he could. On the other hand, Leading Senior Constable Monahan confirmed that the front right panel of the Laser had collided with the front right corner of the truck. He had also established the point of impact as occurring in the westbound impact, 0.8 of a metre from the centre of the road. He referred to Mr Monahan’s evidence that, in those circumstances, the left side of Mr Boot’s vehicle could have been either on the correct side of the road, or around the centre of the road. In those circumstances, at the moment of impact, Mr Boot’s vehicle was closer to the centre of the road than Mr Pevitt believed to have been the case. The judge inferred, from those facts, that at a second, or a split second, before impact, Mr Boot’s vehicle changed course, so that it went from a position of substantially occupying the westbound lane to being considerably closer to the centre of the road.[3] His Honour therefore considered that the evidence was ‘… consistent with, and suggestive of, a last second change in the position of Mr Boot’s vehicle, and that change in position being a manoeuvre back to the left or correct side of the highway’.[4]
[3]Reasons for judgment [76].
[4]Reasons for judgment [78].
The judge then concluded:
Whether the last second manoeuvre referred to above – and which, on the balance of the evidence, appears to have occurred – represents panic, an instinctive reaction or an eleventh hour change of intention is something that will never be known. Whether it represents an awakening from dozing is another imponderable. That such a manoeuvre did take place seems to me to be probable. When it is combined with the normality of Mr Boot’s behaviour prior to the accident, the absence of any obvious factor (emotional, financial or otherwise) indicating a cause of suicide, the complete absence of any evidence in relation to mental ill health and the inconclusive, even if suggestive, nature of the Facebook entry, it seems to me that a large question mark is raised in relation to Mr Boot’s intention to commit suicide at all or immediately prior to the collision. …
On balance, and bearing in mind what has been said above in relation to the test to be applied, on the balance of probabilities, I am not persuaded that, as at the moment when the collision occurred, Mr Boot intended to commit suicide. I am not persuaded that, as at the moment when the collision occurred, he intended that it so occur.
If that be so, equally I am not persuaded that, on the balance of probabilities, the driving of Mr Boot’s vehicle into the prime mover was intentional … .[5]
[5]Reasons for judgment [79]-[81].
As a result of that finding, it was unnecessary for the judge to deal with the question of the application of the exclusion clause. However, in deference to the arguments before him, his Honour gave that issue substantial consideration. He referred to the authorities to which he had been directed.[6] The judge considered that it was significant that the provision in the contract of insurance excluded ‘loss or damage caused intentionally’ by the insured. That provision was in contrast to the wording of clauses in other insurance policies, which excluded loss or damage caused by the ‘deliberate or intentional acts’ committed by the insured. The judge noted that the appellant had opted to employ the wording under consideration in its exclusion clause. It did not exclude cover for loss or damage arising from an intentional act; rather, it excluded loss or damage which had been caused intentionally. The judge referred to the unchallenged evidence of Dr Kornan, namely that a hypothetical person, in the position of Mr Boot, intending to commit suicide, would have been totally focused on bringing about his own death, to the exclusion of all other considerations. Thus, the judge concluded that even if it were found that Mr Boot had intended to commit suicide leading up to and at the moment of impact, the exclusion clause would not have relieved the appellant from providing insurance cover.[7]
[6]Including Clayton v Mutual Community General Insurance Pty Ltd (1995) 64 SASR 353, Kane v Dureau [1911] VLR 293, Fire & All Risks Insurance Co Ltd v Powell [1966] VR 513, Daniel v Accident Insurance Mutual Holdings Ltd (1995) 65 SASR 387, and Beresford v Royal Insurance Co Ltd [1938] AC 586.
[7]Reasons for judgment [85].
The judge then turned to the issues of ownership and loss and damage. I shall return to his Honour’s conclusions on those respects later. However, in brief, the judge accepted that there was sufficient evidence that the respondent owned the truck and trailer. The judge also held that the respondent was entitled to claim, as damages, amounts which it had paid to Mr Pevitt for personal items lost by him in the accident, and which were in the cabin of the prime mover. His Honour considered in some detail the evidence in relation to the quantification of the claim in respect to the prime mover, the loss of the trailer, and other items, and concluded that, based on the evidence, the respondent was entitled to an award of damages in the sum of $165,226.79.
Grounds of appeal
The amended notice of appeal contains fifteen grounds of appeal. The first eight grounds address the issue whether the judge erred in finding that the appellant had not established that the collision was intentional. Grounds 9 to 12 address the proposition by the appellant that the judge erred in concluding that, if it was established that Mr Boot intended to cause the collision, the exclusion clause did not apply. Ground 13 is directed to the proposition that the judge erred in finding that the respondent had proved that it owned the truck and trailer. Grounds 14 and 15 are directed to some of the items of loss and damage awarded by the judge to the respondent.
It is convenient to deal with the grounds of appeal according to the four principal issues in the appeal, to which I have earlier referred.
Whether the judge erred in finding that the appellant had not proven that the collision was caused by the intentional act of James Boot
The first question, then, is whether the judge erred in concluding that the appellant had not proven that the collision was caused by the intentional act of James Boot.
Before addressing that question, it is first necessary to consider the submission by the appellant (reflecting grounds 5, 6 and 7 of the Notice of Appeal) that the judge erred in finding that Mr Boot’s vehicle swerved at the last moment. On behalf of the appellant, it is submitted that the trial judge erred in making that finding on two bases. First, it was submitted that in making that finding the trial judge denied the appellant procedural fairness. Secondly it was submitted that the finding is inconsistent with the uncontested evidence in the trial.
In support of the proposition that, in making the finding, the trial judge denied the appellant procedural fairness, it was pointed out that the only evidence, in relation to the manner in which the accident occurred, was given by Mr Pevitt and by LSC Monahan. It was not put to either of those witnesses that Mr Boot’s vehicle had swerved at the last minute, nor did either of them give such evidence. It was submitted that the finding was inconsistent with the manner in which the case was run. In particular, it was submitted that Mr Pevitt was not cross-examined on that point, and that it was not raised in oral closing argument.
In my view, there is no substance in the proposition thus made on behalf of the appellant. First, of course, Mr Pevitt was a witness called on behalf of the respondent. Thus, contrary to the submission made by the appellant, it was impermissible for the respondent to cross-examine Mr Pevitt, unless the respondent was granted leave to do so under s 38 of the Evidence Act 2005.
Further, the proposition, about Mr Boot’s vehicle swerving, only emerged from evidence adduced in the course of the appellant’s case, from LSC Monahan. Contrary to the submissions made by the appellant, it is clear that, in the course of cross-examining LSC Monahan, counsel for the respondent sought to place Mr Boot’s vehicle, at the time of impact, either partially on the correct side of the road, or in the centre of it. Further, it is clear that he did so based on LSC Monahan’s evidence that the point of impact was .8 of a metre from the centre white line, at which point, according to LSC Monahan, there were large gouge marks in the bitumen surface. In my view, counsel was not required to put to LSC Monahan the proposition that that meant that Mr Boot’s vehicle must have swerved before impact. Indeed, such a question would, probably, have been inadmissible. LSC Monahan did not profess to have expertise, pursuant to s 79 of the Evidence Act, which would have entitled him to express an opinion as to the likely movements of the vehicles before impact. Thus, in my view, the cross-examination of LSC Monahan, by plaintiff’s counsel, was sufficient to lay the foundation for the proposition that Mr Boot’s vehicle may, or must, have swerved before impact.
In addition, contrary to the submissions on behalf of the appellant, it is clear that that proposition was made at trial, on behalf of the plaintiff, in final address. At paragraph 37 of the written submissions, counsel for the plaintiff submitted as follows:
Although at one stage he was heading straight for a head on collision, Mr Boot’s car was partly back on the correct side at the time of impact. His car’s right front corner hit the prime mover’s right front corner. It may be inferred that he swerved back at the last moment.
No doubt, due to the thorough nature of the written submissions, plaintiff’s counsel only devoted a short part of his final submissions to the question as to where the impact occurred, and as to whether at that time Mr Boot was attempting to end his life. Rather, plaintiff’s counsel concentrated on the issue of the interpretation of the exclusion clause, and a number of matters relating to the proof by the plaintiff of the loss and damage claimed by it.
On the hearing of the appeal, we were informed that, at trial, counsel for the plaintiff first provided the written submissions to counsel for the defendant at the commencement of his oral submissions. Nevertheless, at the conclusion of final addresses, the trial judge gave counsel the opportunity to file and serve supplementary submissions. Pursuant to that leave, counsel on each side filed and served supplementary submissions. In those supplementary submissions, counsel for the defendant did not object to the proposition advanced by counsel for the plaintiff in paragraph 37 of his written submissions, and did not contend that the defendant had been denied procedural fairness by the matters raised in that part of the plaintiff’s written submissions.
In those circumstances, I do not accept the proposition, advanced by the appellant, that the trial judge denied the appellant procedural fairness, by concluding that Mr Boot’s vehicle must have swerved back towards the correct side of the road, a brief moment before impact.
As part of his submissions that it was not open to the judge to draw that conclusion, counsel for the appellant contended that the judge erred in finding that the point of impact, between Mr Boot’s vehicle and the respondent’s vehicle, was .8 of a metre from the centre line. Counsel submitted that that finding by the judge was not consistent with evidence by LSC Monahan that the gouge marks, made on impact, were 1.8 metre from the fog line on the south side of the highway. Counsel also submitted that the proposition, that the point of impact between the two vehicles was 0.8 metres from the centre line, was inconsistent with Mr Pevitt’s evidence. In particular it was submitted that, given Mr Pevitt’s evidence that, at the time of impact his front left tyre was entering the gravel verge, the impact would not have occurred .8 of a metre from the centre line of the highway.
In my view, the finding by the judge, that the point of impact was 0.8 of a metre from the centre line was clearly open to the judge. Indeed, on the state of the evidence, the judge could not have found otherwise. In his statement, tendered in evidence, LSC Monahan stated, in clear terms, that he established that the point of impact occurred on the westbound lane, 0.8 of a metre from the centre of the road. In cross-examination, he confirmed that evidence. He also confirmed that it was at that point that the front right hand corner of the respondent’s prime mover came into collision with the front right hand corner of Mr Boot’s vehicle. That evidence was not clarified, or qualified, in re-examination. Thus, in my view, the finding by the judge, that the point of impact between the two vehicles was 0.8 of a metre from the centre of the roadway, was not only based on the evidence, but indeed was necessitated by that evidence.
Further, in my view, it was open to the judge to find that Mr Boot’s vehicle swerved before impact. It is correct, as counsel for the appellant has pointed out, that Mr Pevitt did not observe the Ford Laser undertaking such a manoeuvre. However, the finding by the judge was that Mr Boot’s vehicle would have swerved at the last moment. At that time, Mr Pevitt, at a time of extreme crisis, was steering his vehicle to the left. His prime mover was substantially higher than the Ford Laser. In those circumstances, it is understandable that Mr Pevitt did not see the Laser swerve to his right. On the other hand, given the trial judge’s acceptance of Mr Pevitt’s (unchallenged) evidence that, on the approach to the collision, the Ford Laser was directly in the path of the prime mover, given the (uncontradicted) evidence of LSC Monahan that the point of impact was 0.8 of a metre from the centre of the road, and given that the two front right hand corners of each vehicle collided with the other, it was open to the trial judge to infer, as he did, that at the last moment Mr Boot’s vehicle must have undertaken such a swerve. In my view, on the facts as found by the judge, and on the objective evidence adduced at trial, such an inference is the more probable inference, and I consider that the trial judge was correct in drawing it.
The principal submission advanced by the appellant, in respect of the first aspect of the appeal, was that the judge erred in failing to be satisfied beyond reasonable doubt, on the uncontested facts, that at the time of the collision, Mr Boot was intending to commit suicide.
Counsel commenced that aspect of his submissions by referring to the principle stated by the High Court in Warren v Coombes[8], namely, that where the question on appeal is whether a particular inference should be drawn from proven facts, the appellate court has the right and duty to decide that question for itself.
[8](1979) 142 CLR 531, 541, 551 (Gibbs ACJ, Jacobs J, Murphy J).
Counsel for the appellant then referred to the following matters, which he stated were uncontested evidence. First, Mr Boot, by the end of the evening in question, was observed by his friends as being flat and tired. The Facebook entry which he made at 10.41 pm had the tenor of a suicide note, and Dr Kornan considered it was consistent with someone intending to commit suicide. Having gone home to go to bed, Mr Boot then, for no apparent reason, went out driving again. His friend Mr Byrt regarded that conduct as being ‘unusual’. Secondly, counsel referred to the circumstances of the collision itself. There was nothing about the road conditions, the visibility, the traffic or the weather which could account for Mr Boot being on the incorrect side of the road. Rather, when his vehicle was 200 metres from Mr Pevitt’s truck, it suddenly, and for no apparent reason, swerved to one quarter of its width into Mr Pevitt’s lane and held its line. It then, for no apparent reason, swerved completely into Mr Pevitt’s lane in front of the truck. Mr Boot’s vehicle then failed to take any evasive action or to apply its brakes. It is unlikely that he had fallen asleep, because he had not been driving for long, and there were corrugations on the road to alert him. His vehicle was roadworthy and there were no mechanical problems with it. He was not using a mobile phone at the time.
In those circumstances, it was submitted that the court should infer that Mr Boot intended that the collision should occur.
In response, it was submitted on behalf of the respondent that there were a number of other possible explanations from Mr Boot’s conduct, which were open on the evidence. In particular counsel relied on the finding that Mr Boot, before the incident, had endeavoured to swerve back onto the correct side of the road. That evidence, he submitted, militated against an intention by Mr Boot to end his life at the time of the collision.
The principles, relating to the drawing of inferences by appellate courts, were stated in the joint judgment of Gibbs ACJ, Jacobs J and Murphy J in Warren v Coombes & Anor[9], to which counsel for the appellant referred. In essence, an appellate court is in as good a position as the trial judge to decide the proper inference to be drawn from facts which are either undisputed, or which have been established by appropriate findings by the trial judge. The appellate court is to give appropriate respect and weight to the conclusion of the trial judge, but, having reached its own conclusion, the appellate court is not to be deterred from giving effect to it.[10]
[9]Ibid.
[10]Ibid, 551.
The case, which the appellant sought to make at trial, and for which it argues on appeal, that at the time of the collision Mr Boot was intending to kill himself, is essentially, a circumstantial case. In essence, the appellant relies on an inference, drawn from the facts to which it has referred, that Mr Boot intended the collision to occur. The appellant bore the onus of proof in respect of that inference. Thus, the appellant must establish, on appeal, that the judge should have drawn, as the more probable inference, the conclusion that Mr Boot intended the collision to occur.[11]
[11]Holloway v McFeeters (1956) 94 CLR 470, 480-81 (Williams, Webb and Taylor JJ); Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 129 (Winneke P), 141 (Tadgell JA); Chapman v Cole [2006] VSCA 70, [14] (Callaway JA).
In the present case, the trial judge, taking into account the serious nature of the allegation, that Mr Boot committed suicide, applied the principles stated by the High Court in Briginshaw v Briginshaw[12]. In particular, as I have already noted, the judge considered that, in light of the gravity of the proposition, such a finding should not be lightly made, and that the inference, sought to be drawn by the appellant, should be the subject of careful scrutiny.[13] I agree with that proposition.[14] Indeed, the appellant, in its notice of appeal, did not take issue with the approach thus articulated by the trial judge. In addition, I consider that the inherent unlikelihood, of such a young man intentionally taking his own life, for no apparent reason, is a further basis for the application of the Briginshaw principle.[15]
[12](1938) 60 CLR 336, 343-4 (Latham CJ), 354 (Rich J), 362-3 (Dixon J).
[13]Reasons for judgment [66].
[14]Cf Clark v NZI Life Ltd [1991] 2 Qd R 11, 17 (Thomas J); American Home Assurance Company v King [2001] NSWCA 201, [8]-[14], [43] (Stein JA).
[15]Briginshaw v Briginshaw, ibid, 362 (Dixon J).
Apart from the Facebook entry, there is no evidence which indicated, at all, that Mr Boot was contemplating suicide, or that he was in such a frame of mind that he might have been harbouring such thoughts. He had spent the day in the company of friends. There was nothing about his conduct, during the day, or at the end of it, from which to infer that he had intended to commit suicide, or that he was contemplating doing so. The observations by Mr Byrt, that he seemed to be flat on the way home, and the observation by Ms Sorabji, that he was quiet on the short journey from Mr Byrt’s place to her place, are hardly surprising, particularly considering that Mr Boot had driven to Torquay and back, and had spent a substantial part of the day in the company of his two friends.
It is perhaps unusual that, having returned home, Mr Boot then departed for a drive. However, his mother did not note anything untoward about his mood, or behaviour, when he did so. Indeed, from the hearsay evidence (of LSC Monahan) concerning the mother’s observations, there is no evidence that she saw the need to question her son as to why he was going out at that hour. Mr Byrt gave evidence that Mr Boot enjoyed driving his car, and that ‘he always had to be driving his car, he was always giving everyone else a lift’. The appellant has correctly pointed out that shortly before then, Mr Boot had appeared to be quite tired. However, he was young, and the time at which he set out from home is not particularly surprising for someone of his years.
The Facebook entry does, of course, raise a question concerning Mr Boot’s state of mind shortly before he left his home to go for a drive. Dr Kornan, in cross-examination, stated that the Facebook entry is ‘consistent with’ a person who intended to commit suicide. The terms, in which Dr Kornan expressed that view, reflect his later evidence, when he agreed with a proposition put to him by the judge that sometimes, perhaps frequently, people contemplating suicide behave normally in the period leading up to the event. Although the Facebook entry is consistent with an intention to commit suicide, however, equally, in these times of instantaneous communications, it is also consistent with a young man simply venting a passing thought or feeling. Certainly, the Facebook message does not, in express terms, contain any express statement of an intention to commit suicide. I consider that the trial judge was correct in viewing the Facebook entry as a piece of evidence, reflecting Mr Boot’s state of mind, which is to be taken into account, on the balance of probabilities, in determining whether the collision was intentional.[16]
[16]Reasons for judgment [68].
The other piece of evidence, relied on by the appellant, is the driving of the Ford Laser, by Mr Boot, on his approach to the point of collision. As the appellant has pointed out, the driving conditions were good at the time, and there was no apparent reason why Mr Boot should have diverged on to the incorrect side of the road, as he did, over such a distance. Certainly, the appellant excluded, as a possible hypothesis, that Mr Boot was distracted by using his mobile telephone. Further, there were corrugations in the centre of the road to alert a driver who might veer over the centre line.
However, it must be borne in mind that only a very short period of time passed between Mr Boot diverging onto the incorrect side of the road, and the happening of the collision. Making due allowance for the approximate nature of Mr Pevitt’s estimates of distances between the two vehicles, and the speeds of the two vehicles, the collision would have occurred approximately three seconds after Mr Boot’s vehicle first veered onto the incorrect side of the road. As I have already indicated, I agree with the trial judge that, on the evidence, it should be inferred that, at the last moment, Mr Boot endeavoured to swerve back onto the correct side of the road. Mr Boot had driven to Torquay and back on the same day, and had spent a reasonably long day in the company of his two friends. He had been observed to be tired on the return trip from Torquay. In those circumstances, I consider that there was a reasonable hypothesis, left open by the evidence, that Mr Boot’s vehicle moved to the incorrect side of the road because of inattention, or because Mr Boot had, momentarily, fallen asleep.
The question which arises is whether, in those circumstances, the inference for which the appellant contends, namely that Mr Boot was intending to commit suicide, was a more probable inference than the competing inference, to which I have just referred. In my view, and notwithstanding the Facebook entry, and the manner in which Mr Boot’s vehicle veered onto the incorrect side of the road, I am not satisfied that the hypothesis of suicide is established as the more reasonable hypothesis in the circumstances. In particular, given the seriousness of the allegation contained within that hypothesis, coupled with the inherent unlikelihood of the occurrence of suicide, I do not consider that it is more probable that Mr Boot intentionally caused the collision, than that he momentarily, before the collision, either lost attention or fell asleep.
In those circumstances, the trial judge did not err in concluding that the appellant had failed to establish, on the balance of probabilities, that Mr Boot intended the collision to occur.
Whether the exclusion clause applied, if the collision was intentional
The conclusion, which I have thus expressed, makes it unnecessary to determine the second issue, raised by the appellant, relating to the correct construction of the exclusion clause in the policy. However, as this matter was fully argued on appeal, I shall state my conclusions in respect of it.
In essence, the question is whether the exclusion clause in the policy, to which I have referred, applies, if (contrary to the above) the appellant established, on the balance of probabilities, that the collision was intentionally caused by Mr Boot. The issue arises because of the evidence of Dr Kornan as to the probable state of mind of Mr Boot, if, at the time of the incident, he was in fact intending to commit suicide. As I have already stated, the unchallenged evidence of Dr Kornan was that, in those hypothetical circumstances, a person, in the position of Mr Boot, intending to end his life, would have been totally focused on achieving that end. Such a person would have had no thought of the consequences to the other vehicle or to the other driver. In other words, the effect of Dr Kornan’s evidence is that, if Mr Boot had been intending to commit suicide as alleged by the appellant, his sole intention would have been to achieve that end, to the exclusion of any other subjective intention. Thus, the respondent has submitted (as it did at trial) that, if Mr Boot did intend to commit suicide, his conduct in doing so did not come within the provision of the policy, which excluded the liability of the insurer in respect of ‘loss or damage caused intentionally by (the insured) or a person acting with (the insured’s) express or implied consent’.
The appellant submitted that the exclusion clause should be construed in the context of the policy, which was designed to cover accidental loss and to exclude intentional loss. Counsel submitted that a corollary of that fundamental characteristic of insurance contracts is that an insured is not covered for loss or damage caused by his or her deliberate action. In support of that proposition counsel referred to Beresford v Royal Insurance Co Ltd[17] and Fire and All Risks Insurance Co Ltd v Powell[18]. On that basis, counsel submitted that, if the collision was intentional, the exclusion clause applied.
[17][1938] AC 586, 595.
[18][1966] VR 513, 517-18.
Counsel for the appellant further submitted that, if the collision was intentional, the loss and damage flowing from it was a natural consequence of the collision, and that a person must be presumed to intend the natural consequences of his or her own acts.[19] In that context, counsel submitted that there was no basis for the trial judge’s finding that the loss and damage was a consequence of a chain of events that could not have been predicted. He submitted that, as a matter of ordinary and common experience, the extensive damage to the truck and trailer was an entirely predictable consequence of Mr Boot driving his vehicle headlong into the truck when both vehicles were travelling at 100 kph. In support of that proposition, counsel also referred to the dictum of King CJ, in Clayton v Mutual Community General Insurance Pty Ltd[20], to the effect that the recklessness of a person may be sufficiently severe, in respect of loss and damage, as to be equated with an intention to cause that loss and damage.
[19]In support of that proposition counsel referred to: Lloyd’s Bank Ltd v Marcan [1973] 1 WLR 339, 344; Cannane v Cannane Pty Ltd (1998) 192 CLR 557, [12]; Groeneveld Australia Pty Ltd v Nolten [2011] VSC 18, [68]; Chang v Marcolongo (2011) 242 CLR 546, [24].
[20](1995) 64 SASR 353, 356.
In response, counsel for the respondent submitted that the trial judge was correct to hold that the exclusion clause applied to cases where there was an intention to cause loss and damage, and not merely an intention to perform the relevant act. Counsel pointed out that there was no direct challenge by the appellant to that proposition. He submitted that such a construction reflects the long standing principle, referred to in cases such as Beresford v Royal Insurance Co Ltd[21] and Fire and All Risks Insurance Co Ltd v Powell[22], that a policy of insurance is construed so as not to provide indemnity in respect of loss or damage, which was deliberately caused by the insured. Counsel relied on the finding by the trial judge, based on Dr Kornan’s evidence, that if Mr Boot intended the collision, he did not thereby intend to cause damage to the appellant’s property. Thus, he submitted that the liability by Mr Boot to the respondent (in respect of which the appellant provided indemnity) was not excluded from cover by the policy.
[21][1938] AC 386.
[22][1966] VR 513.
Counsel for the respondent further submitted that the trial judge was correct in holding that the scope of the intention, referred to in the exclusion clause, did not encompass negligence or recklessness by the insured. He submitted that there is an essential difference between, on the one hand, a reckless act which causes damage, and on the other hand, loss or damage which is caused deliberately or intentionally. In support of that proposition, he referred to the decision of the Full Court of South Australia in Clayton v Mutual Community General Insurance Pty Ltd[23] and the decision of Cussen J in Kane v Dureau[24].
[23](1995) 64 SASR 353.
[24][1911] VLR 293, 297.
In that context, counsel for the respondent submitted that the dictum of King CJ in Clayton’s case, that recklessness may be so extreme as to be indistinguishable from intentionality, has not found favour in subsequent authorities. He referred to the decision of Bollen J in Daniel v Accident Insurance Mutual Holdings Ltd[25] and the judgment of the District Court of South Australia in MAC v Ferraro[26]. Further, counsel submitted, that, in any event, in that passage of his judgment, King CJ, by referring to the concept of recklessness, was premised on some appreciation by the insured of the level of risk. In the present case, the judge had accepted the evidence of Dr Kornan, that, if Mr Boot had intended to commit suicide, he would not have turned his mind to the prospect of thereby causing damage to the appellant’s vehicle. In those circumstances, his state of mind was not reckless even to a higher degree. Accordingly, it was submitted that, if the dictum of King CJ, in Clayton, is good law, it does not apply to Mr Boot’s state of mind at the relevant time.
[25](1995) 65 SASR 387.
[26][2004] SADC 79, [72]-[75].
The first question, then, is whether, in order for the exclusion clause to apply, it is sufficient for the respondent to have established that Mr Boot intended the collision to have occurred, notwithstanding that he did not intend, thereby, to cause damage to the respondent’s vehicle or the trailer behind it.
The answer to that question lies, primarily, in the wording and structure of the insurance policy. In that respect, I respectfully adopt the observation of the trial judge[27], that the document is very different, in form and in language, to a traditional contract of insurance, and that, in many respects, it is ‘… more akin to an advertising brochure’.
[27]Reasons for judgment [5].
In essence, the policy provides three types of cover to the insured, namely, indemnity for legal liability for property damage, cover for accidental loss or damage to the insured vehicle caused by an uninsured third party motorist to the current market value of the insured vehicle of $3,000, and a fire and theft extension cover to the current market value of the vehicle up to $5,000. The indemnity for legal liability for property damage is described on page 29 of the policy, which states:
We cover your legal liability for any loss or damage to other people’s property and loss or damage consequent upon damage to other people’s property resulting from the use of your car during the period of cover.
On page 26 of the policy, there are, in effect, sixteen exclusion clauses, under the heading ‘Will we pay for?’ The tenth such exclusion is in the following form:
Loss or damage caused intentionally by you or a person acting with your express or implied consent.
Adjacent to that clause, in capital letters, is the word ‘No’. The next six ‘exclusions’ are directed, specifically, to ‘loss or damage caused’ by different circumstances (including war, misuse or the existence of nuclear weapons, lawful repossession or seizure of the vehicle, and the like).
In that context, the exclusion clause is clearly directed to the loss and damage in question. On the plain reading of it, the clause excludes a claim for indemnity for liability in respect of ‘loss or damage’ intentionally caused by the insured. The focus of the exclusion, on the intention of the insured to cause the loss or damage, is reinforced by the next six exclusions which, as I stated, are all directed to the loss and damage in question, and how it was caused.
On the face of it, the exclusion clause is better suited to a claim by the insured in respect of loss or damage to the insured’s own vehicle, rather than to a claim for indemnity in respect of liability to another party. However, the clause must be construed in the context of the policy, which is primarily a third party property insurance policy. In any event, it was common ground, both at trial and on appeal, that the exclusion clause is not only directed to a claim for indemnity for loss and damage to the insured’s vehicle, but also a claim for indemnity in respect of liability for loss or damage caused to a third person.
In that way, the policy very much reflects the long standing principle, identified by Lord Atkin in Beresford v Royal Insurance Co Ltd[28], namely, that, as a matter of contractual construction, an insured cannot recover for loss and damage intentionally caused by the insured.[29]
[28][1938] AC 586, 595.
[29]See also Fire and All Risks Insurance Co Ltd v Powell [1966] VR 513, 518, 519 (O’Bryan and Pape JJ).
In construing the exclusion clause a distinction must, necessarily, be drawn between damage caused by an intentional act of the insured, and, on the other hand, damage intentionally caused by the insured. That distinction is illustrated by the decision of the Full Court of South Australia in Clayton v Mutual Community General Insurance Pty Ltd[30]. In that case, the insured’s husband, with the intention of committing suicide, ignited petrol fumes in a motor vehicle, which was situated in the carport adjacent to the insured’s house. The fire destroyed the vehicle, damaged the carport, and spread to the house, causing extensive damage. The insurance policy excluded cover for ‘loss or damage caused by the deliberate or intentional acts committed by’ the insured. The trial judge dismissed the claim by the insured, on the basis that the ‘deliberate or intentional acts’, referred to in the extension clause, consisted of the igniting of the petrol fumes by the insured’s husband, disengaged from its consequences. The Full Court of South Australia allowed the insured’s appeal from that decision. King CJ (with whom Duggan J and Nyland J agreed) held that the act, contemplated by the extension clause, was the actual act causing the damage. In other words, his Honour held, ‘there must be a deliberate or intentional causing of the damage to the insured premises’.[31]
[30](1995) 64 SASR 353.
[31]Ibid, 356.
In Daniel v Accident Insurance Mutual Holdings Ltd[32], Bollen J reached a similar conclusion in respect of an exclusion clause, in a motor vehicle policy, which excluded cover for ‘loss, damage or liability caused by or arising from … your wilful or deliberate act’. In that case, the insured claimed indemnity in respect of a motor vehicle collision, which was caused when the insured was driving, at a highly excessive speed, on the incorrect side of the road, approaching the crest of a hill. The magistrate, understandably, characterised the driving of the insured as gross negligence. He held that the manner of the driving, and the fact that the collision, were so closely intertwined that they essentially form the one act. Thus, he held that the exclusion clause applied. From that decision, the insured successfully appealed to the Supreme Court of South Australia. Bollen J held that, notwithstanding that the insured was driving in a reckless manner, at an ‘outrageously high’ speed, he was not shown to have directed his will or deliberation to causing damage to the other vehicle.[33] Thus, his Honour held that the insured had not established that the damage, in respect of which indemnity was claimed, was caused by the ‘deliberate act’ of the insured.
[32](1995) 65 SASR 387.
[33]Ibid, 395.
Thus, in the present case, it would not be sufficient, for the exclusion clause to apply, if Mr Boot had deliberately driven on the incorrect side of the road. On its plain terms, the exclusion clause is directed to an intended result (‘loss or damage’), and not to the action which produced that result.
If the appellant had established that Mr Boot intentionally caused the collision, this case would, of course, be distinguished from the two decisions, to which I have just referred. For, in such circumstances, Mr Boot would not only have been intentionally driving on the incorrect side of the road (as was the insured in Daniel’s case), but he would also have intended to cause the particular event, which caused the damage to the respondent’s vehicle. Ordinarily, where an insured intentionally causes the particular event, which directly results in the damage in respect of which liability is asserted against the insured, it would follow, as a matter of fact, that the insured would, thereby, have intended to cause that damage. For example, if an insured, filled with rage, deliberately drove his vehicle into a house, he would not only intend to cause the event (the collision of the house), but also damage to the house. However, the fact that that is so must not obscure the difference between, on the one hand, a set of circumstances in which the insured intends a particular event to occur, but not damage resulting from it, and, on the other hand, a set of circumstances in which the insured intends the event and the consequential damage to occur.
In my view, that distinction is critical to the determination of the question of the application of the exclusion clause in this case, if in fact the appellant had established that Mr Boot intended the collision to occur. As I have stated, the exclusion clause is expressly directed to ‘loss or damage’ intentionally caused by the insured. The policy provides indemnity, principally, for third party property liability, but also for loss and damage to the insured’s own property. The exclusion clause is followed by six further clauses, which are each directed to the manner in which the relevant ‘loss or damage’ is caused. Thus, the focus of the exclusion clause, which is in issue in this case, is whether the loss or damage was intentionally caused by Mr Boot; the focus is not, only, on whether the particular event, which resulted in loss or damage to the respondent’s vehicle, was intended by Mr Boot.
Counsel for the appellant sought to avoid the effect of the wording of the exclusion clause, by submitting that it was sufficient for the appellant to establish (if that be the case) that Mr Boot intended the collision to occur, where the consequential damage was so inter-connected with the collision that, objectively, Mr Boot could be characterised as having intended that damage to result. In support of that proposition, counsel referred to the decision of the Court of Appeal of England in Charlton v Fisher & Anor[34]. In that case, the insured deliberately drove his vehicle into another car, occasioning injury to the occupant of it. It was accepted that the insured did not, thereby, intend to injure the occupant. The question was whether the injury so caused to the occupant was an accident, within the meaning of the policy. Rix LJ expressed the view that if there was a deliberate intent by the insured to use his vehicle as a weapon, then he could be regarded as intending the natural consequences of that act, namely, injury to any occupant in the other vehicle.[35] However, that observation, which was in fact a tentative conclusion by way of obiter dictum, would not apply to the present policy, which is not expressed (as was the policy in Charlton v Fisher) to provide indemnity in respect of an ‘accident’; rather, as I have emphasised, the indemnity provided by the policy, issued by the appellant, was indemnity in respect of the insured’s ‘liability for any loss or damage’. The exclusion, under consideration, is directed to liability for loss or damage intentionally caused by the insured.
[34][2002] 2 QB 578.
[35]Ibid, 600 [62].
In those circumstances, in my view the trial judge was correct in concluding that the exclusion clause did not apply to the claim by the respondent, if the appellant had established, in this case, that Mr Boot had intended the collision to occur.
Faced with that difficulty, the appellant also relied on two further propositions, to circumvent the plain wording of the exclusion clause. First, it relied on the adage that a person is ‘presumed to intend the natural and probable consequences of his (or her) actions’. That adage, however, is not a doctrine of law. Rather, it reflects a factual inference which courts may, and do, draw from particular facts.
A number of the cases, to which counsel for the appellant referred, involved claims relating to dispositions which are alleged to have been effected with the intention of defrauding the creditors of the party making the disposition. In cases of a voluntary settlement by a person who was not then in a position to pay his or her creditors, the law either imputes, or presumes, that the settlor thereby intended to defeat or defraud his or her creditors.[36] That imputation, or inference, derives from the statutory context of the claim against the party to whom the disposition has been made, and from the recognition by the law that, in that context, it is rare to be able to adduce direct evidence of the party making the disposition.
[36]Freeman v Pope (1870) LR 5 Ch App 538, 540-541 (Lord Hatherley LC), 544-5 (Giffard LJ); Lloyd’s Bank Limited v Marcan [1973] 1 WLR 339, 344 (Pennycuick VC); Cannane v J Cannane Pty Ltd (1998) 192 CLR 557, 566-7 [12] (Brennan CJ, McHugh J); Chen v Marcolongo (2011) 242 CLR 546, 555-6 [24]-[25] (French CJ, Gummow, Crennan and Bell JJ).
Generally, where the state of mind of a person is in issue, the existence of that state of mind is determined by a process of inference. Thus, ordinarily, where a motorist intentionally drives his vehicle headlong towards another vehicle, at high speed, it might readily be inferred, from those facts, that the motorist intended to collide with, and cause damage to, the second vehicle. However, for the reasons already discussed, in the present case, if Mr Boot did intend to cause a collision, that inference is displaced by the unchallenged evidence of Dr Kornan that, in such a set of circumstances, Mr Boot would not have thereby intended to cause damage to the respondent’s vehicle. Rather, at all relevant times, his sole focus would have been on ending his own life. In that way, the evidence of Dr Kornan had the effect of negating the application of an inference which would otherwise arise as a matter of common experience.
The other contention by the appellant is that, in the circumstances of this case, if Mr Boot did intend the collision to occur, then his driving was so reckless as to be equated with the intention by him to cause damage to the respondent’s vehicle. In support of that proposition, the appellant relied on the following passage from the judgment of King CJ in Clayton v Mutual Community General Insurance Pty Ltd[37]:
Although intention and recklessness are distinct states of mind and the latter is not within the policy exclusion, there is a point at which the risk of damage to the insured premises, as it exists and as it is realised by the insured to exist in consequence of the insured’s actions is so high that the insured’s state of mind, notwithstanding that the damage was not designed or planned by him, is indistinguishable from intention.
[37](1995) 64 SASR 353, 356.
In my view, the passage, to which I have just referred, should not be construed too literally. As King CJ stated in the first part of the passage, there is an essential difference between, on the one hand, recklessness, and, on the other hand, intentionality. The word ‘reckless’ has a number of different meanings in various areas of the law. Certainly, in the criminal law, it is distinct from intention[38]. In general, in that and other contexts, it connotes an awareness of the probability of the particular risk, and the performance of the act in question in the face of that awareness. As such, it is separate and distinct from an intention to cause the particular result.
[38]See for example Kane v Dureau [1911] VLR 293, 297 (Cussen J); R v Crabbe (1985) 156 CLR 464, 469 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ).
In any event, the precise effect of the dictum of King CJ, in Clayton’s case, does not arise for consideration in this case. That is because the effect of Dr Kornan’s unchallenged evidence is that if Mr Boot intended the collision, he would not have directed his mind, at all, to the fact that he would or might cause damage to the respondent, or to Mr Pevitt, by deliberately colliding with the respondent’s vehicle. In particular, Dr Kornan, in cross-examination, stated that in such circumstances, Mr Boot’s ‘total pre-occupation’ would have been with putting himself in the position in which death would inevitably have taken place. Dr Kornan stated:
That would be the total preoccupation. I don’t think (he) would be at all thinking about the other person or the truck or anything else. I think that at that moment when depression has overwhelmed someone that all one is thinking about is the situation of making sure that death takes place.
In other words, in such circumstances, the appellant would not have established that Mr Boot had any awareness of the probability, or even possibility, that his actions might cause damage to the respondent’s vehicle, or to Mr Pevitt. Thus, taking the dictum of King CJ in Clayton’s case at its highest, it would not assist the appellant’s case.
For the foregoing reasons, if (contrary to the conclusion which I have expressed in paragraph 60 above), the appellant established, on the balance of probabilities, that the collision was intentionally caused by Mr Boot, the exclusion clause would not apply.
Proof of ownership of the respondent’s vehicle
The third issue, raised on appeal, is concerned with the adequacy of the proof by the respondent of its ownership of the prime mover and trailer. That issue is reflected in ground 13, which alleges that the trial judge erred in finding that the plaintiff had proved that it owned the truck and trailer, and it thus suffered loss and damage in relation to them, as there was insufficient evidence upon which to base such a finding.
At trial, the issue, as to whether the plaintiff had sufficiently proved ownership of the prime mover and trailer, was raised, briefly, by counsel for the defendant in final address. There was no direct evidence by the plaintiff as to its ownership of the truck and trailer. In his reasons for judgment, the judge referred to the evidence of Mr Pevitt that he was employed by the plaintiff as a truck driver. His Honour also referred to the evidence of the loss assessor, Mr Rollo, from which, the judge considered, it might be inferred that the prime mover was owned by the plaintiff. The judge also noted that, in the course of openings, counsel for the defendant had foreshadowed that there would not be any significant issue about the facts, but rather that the principal issue would depend upon an interpretation of the facts, and a ‘nice legal point’ which would be discussed in a final address. Counsel for the defendant, in openings, foreshadowed that there would be only a ‘little bit’ of contention relating to the issue of quantum. He did not foreshadow any issue relating to the proof by the plaintiff of its ownership of the truck and trailer.
In my view, although the evidence in support of ownership of the truck and trailer by the plaintiff was sparse, nevertheless it was sufficient to justify a finding by the trial judge, on the balance of probabilities, that the plaintiff owned the truck and trailer. As the judge noted, Mr Pevitt gave evidence that he was employed by the plaintiff as a truck driver. It was not suggested that Mr Pevitt owned the truck. In other words, he did not come to court as an owner driver. Rather, he came to court as a driver, who, at the relevant time, was employed by the respondent.
In that context, Mr Pevitt gave evidence that the prime mover had been purchased from another company, and that the service records, in relation to it, were still in the possession of the respondent.
The evidence in chief of Mr Rollo was given, primarily, by way of tender of his report. The report was written under the letterhead of the respondent’s insurer (National Transport Insurance) and was signed by Mr Rollo in his capacity as an assessor. It described the ‘client’ as ‘Elmore Haulage Pty Ltd’. Pausing there, that evidence was tantamount to Mr Rollo asserting that the respondent had insured the prime mover with National Transport Insurance. In cross-examination, Mr Rollo was questioned about the market value, which he placed on the prime mover. In response, he stated ‘… I know for a fact that Elmore Haulage trucks are in Mickey Mouse condition’. That statement, in cross-examination, was an implicit assertion that the vehicle in question belonged to the respondent. In re-examination, Mr Rollo was questioned as to the circumstances in which he came to assess the value of the vehicle. In the course of that re-examination, he gave an affirmative answer to the (leading) question, ‘The specific vehicle owned by Elmore that was involved in the collision?’
In my view, those pieces of evidence are sufficient to establish that the respondent did own the prime mover, which was involved in the incident with the appellant’s insured. The evidence on that aspect could have been more fulsome, however it must be borne in mind, as the trial judge pointed out, that the appellant did not, in the opening of the case, foreshadow that that matter would be put in issue. In those circumstances, I would reject the submission that the trial judge erred in finding that the respondent had proven ownership of the prime mover.
Mr Rollo’s report also notes that the respondent was the ‘client’ in respect of the trailer. In other words, as I stated, Mr Rollo’s evidence was to the effect that the respondent was the insured in respect of the trailer. At the least, the trailer was in the possession of the respondent, as it was being towed behind its truck, by its employee. Thus, at least it was bailee, if not the owner, of the trailer. As such, it had standing to claim damages for the damage to the trailer.[39]
[39]Cf The Winkfield [1902] P 42, 60; Glenwood Lumber Co v Phillips [1904] AC 405; Mc Kinnon v Dwyer [1906] VLR 28; The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400, 403 [7] (Basten JA), 414 [95] (Young CJ in Eq.).
The appeal on quantum
The appellant has raised two issues in relation to the quantification of the trial judge of the damages awarded to the respondent. First, the appellant submits that the respondent failed to prove the towing costs ($21,978.30) and the clean up costs paid to VicRoads ($4,353).
In the course of evidence, counsel for the respondent tendered invoices in respect of the two items, to which I have just referred. Those invoices were tendered without objection. As such, they were proof of their contents. They may well have been admissible, in any event, under s 64(2)(b) of the Evidence Act. In any event, they formed part of the evidentiary material before the trial judge. They were sufficient to establish, on the balance of probabilities, the quantum of the two items of loss and damage awarded by the trial judge to the respondent.
The second matter, raised by the appellant, concerns the award of damages to the respondent in respect of the loss of chattels belonging to Mr Pevitt, which were either damaged or destroyed as a result of the collision. The amount awarded was $2,895.49.
Mr Pevitt gave evidence as to his personal items, which he had in the cabin of the truck, and which he used in the course of his work. A number of invoices and other documentation were tendered in respect of them, without objection. In cross-examination, Mr Pevitt stated that the items were ‘everything I need for work’. He also gave evidence that he originally paid for most of the items which were lost, until the respondent’s insurer reimbursed him for it.
It was submitted on behalf of the appellant that because the respondent did not own Mr Pevitt’s items, it could not have suffered loss arising out of the damage to those items. I reject that proposition. It is a fundamental principle of employment law that an employer is under an implied duty to reimburse an employee for any expenses incurred by the employee in the reasonable performance of his duties.[40] It was reasonably foreseeable by Mr Boot that if he did not drive his vehicle with due care, the prime mover, and items of property contained within it, might be damaged, and its owner might sustain economic loss. The obligation of the respondent, to indemnify Mr Pevitt in respect of his damaged items of personal property, was a reasonably proximate effect of the collision. In those circumstances, in my view, the respondent was entitled to claim those items of damage from Mr Boot, and thus, pursuant to s 51 of the Insurance Contracts Act, from the appellant.
[40]Re Famatina Development Corpn. Ltd [1914] 2 Ch 271, 282 (Lord Cozens-Hardy MR).
Conclusion
For the above reasons, the appellant has not made out any of its grounds of appeal. Accordingly, the appeal should be dismissed.
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