Carroll v Perriman

[2006] NSWDC 90

CITATION:	Carroll v Perriman [2006] NSWDC 90
HEARING DATE(S):	28 July 2006
JUDGMENT DATE:	2 November 2006
EX TEMPORE JUDGMENT DATE:	07/28/2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Joinder of insurer refused; motion dismissed
CATCHWORDS:	Practice and procedure - Application to join insurer as a party - Absence of a cause of action against proposed defendant - Applicability of exclusion clause in policy of insurance
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946: s 2 Motor Accidents Compensation Act 1999: s 108
PARTIES:	Mim Carroll (Plaintiff) Simone Perriman (Defendant) Zurich Australian Insurance Limited (Respondent to the motion)
FILE NUMBER(S):	343/05
COUNSEL:	Mr J G Azzi (Plaintiff) Mr C P Locke (Respondent to the motion)

JUDGMENT

Extempore judgment on application by plaintiff to join the insurer of the first defendant as second defendant

HIS HONOUR: 1. The plaintiff moves on a notice of motion filed on 7 June 2006 seeking to join the insurer of the first defendant, as second defendant, pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1946.

2. The respondent to that motion is the insurer, Zurich Australian Insurance Limited (“the Insurer”). The first defendant was not involved in this motion and indeed was not present or represented.

3. The underlying facts are that the plaintiff and the first defendant were travelling on holidays in the United States when they were involved in a motor vehicle accident. The plaintiff alleges that the first defendant caused injury to her when in the course of driving the relevant motor vehicle it ran off the road. It is alleged that the first defendant was negligent.

4. The plaintiff alleges the first defendant was insured by the Insurer, pursuant to a travel policy, for legal liability, extending to the circumstances of the accident and any liability that might inure to the first defendant as a result of the accident.

5. The Insurer opposes the application on various grounds. These include the absence of any evidence of there being a contract of insurance in existence at all by reason of any acceptance by the first defendant of the insurer’s offer to insure; the absence of any notice under the s 108 of the Motor Accidents Compensation Act 1999; the fact that s 2 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply, in any event, to the circumstances of this application, that being a procedural provision for the joinder of insurers against whom the plaintiff has a direct cause of action; and, a number of exclusion clauses in the policy itself which exclude cover in respect to the circumstances of this matter.

6. I only need deal with one of those exclusion clauses, which provides as follows:

“ But we will not pay for... your legal liability that arises:

...from you owning, controlling or using a motorised vehicle.”

7. The plaintiff submits that this exclusion clause does not apply to exclude cover to which the first defendant is otherwise entitled, under clause 11 of the policy, or contract of insurance, for a number of reasons:

(a) that it is not causally relevant

(b) that the chain of causation was broken by the interference of the passenger in the front passenger seat of the vehicle at the relevant time

(c) that the first defendant was not “using” the vehicle because she was not in control of the vehicle at the relevant time

(d) that the accident was caused by factors other than the use of the motor vehicle, namely, allowing the plaintiff to travel in the motor vehicle without a seatbelt and failing to prevent the front seat passenger from interfering with the driver’s steering of the vehicle.

8. The plaintiff submits that the exclusion clause is to be read narrowly and contra proferentem. It is submitted that the exclusion is ambiguous and is thus to be construed in favour of the insured and, therefore, the plaintiff.

9. I do not think there is any ambiguity in the clause. It seems to me the clause unambiguously excludes liability arising out of the use of a motorised vehicle.

10. The clause, in particular the words “arising” and “using”, are to be construed according to their normal meaning.

11. For the purposes of this application the facts alleged are to be taken at their highest; however, in my view, the facts, as so alleged, clearly indicate that any liability which could attach to the first defendant arises from her using a motorised vehicle.

12. I am satisfied that that use is causally relevant, and that there is no breach in the chain of that causation either by reason of the matters alleged or otherwise. It cannot be said the first defendant was not “using” the vehicle for the purposes of the exclusion clause, because she was not in control of it.

13. Even if the other factors involved, such as the absence of a seatbelt, or any interference by the passenger in the front seat, did have a causal relationship with any injuries sustained by the plaintiff, it nevertheless remains incontrovertible that any liability that arises does so from the first defendant using the motorised vehicle.

14. The exclusion clause clearly applies and the first defendant is not indemnified under the contract of insurance, even if it exists, in respect of any liability in the circumstances of the accident the subject of these proceedings.

15. For these reasons I find that there is no basis for the joinder of the insurer and I therefore dismiss the motion.

(These reasons for judgment were corrected and

amended by His Honour on 2 November 2006.)