CGU Insurance Ltd v Pettit - [2009] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
CGU INSURANCE LTD & ANOR v PETTIT
[2009] SASC 187
Judgment of The Honourable Chief Justice Doyle
2 July 2009
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - CLASSIFICATION - FINAL AND INTERLOCUTORY
Respondent sued in tort in respect of personal injury alleged to have been caused by the gate of a trailer striking the plaintiff on the head – respondent filed third party statement of claim alleging that pursuant to a contract of insurance, appellants were liable to the respondent in respect of any liability respondent had to the plaintiff – prior to the trial of the action, respondent sought the determination of whether appellants would be liable to the respondent pursuant to the contract of insurance as a preliminary point – Judge declared that appellants would be liable to indemnify the respondent – whether judgment interlocutory so that appeal lay to single Judge of the Supreme Court.
HELD: the Judge was asked to decide the meaning of the contract on the basis of certain factual assumptions – there is a risk that there will be differences between the assumptions adopted by the Judge and the facts found at the trial of the action - judgment does not finally determine the rights of the parties – judgment an 'interlocutory judgment' – appeal against judgment to a single Judge of the Supreme Court.

INSURANCE - GENERAL - POLICIES OF INSURANCE - CONSTRUCTION
INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES
Plaintiff alleged that she and the respondent were unloading a trailer when the trailer's gates struck the plaintiff in the head causing personal injury – the respondent owned prime mover to which the trailer was allegedly attached at the time of the injury, but did not own the trailer – respondent had a contract of insurance with the appellants which provided indemnity in respect of bodily injury to another person if caused either (1) "by you using your motor vehicle"; or (2) "by and during loading or unloading merchandise onto or off your motor vehicle..." – schedule to the contract listed the respondent's prime mover as one of the motor vehicles covered by the policy, and also a 'trailer in control', which was not identified in the schedule – whether Judge erred in finding that appellants were liable to indemnify the respondent.
HELD: the reference in the policy to 'your motor vehicle' signifies a motor vehicle in which the insured has a proprietary interest – circumstances as pleaded and assumed did not fall within second limb as the respondent had no proprietary interest in the trailer – the inclusion of liability in respect of loading or unloading a motor vehicle does not militate in favour of giving 'using' in the first limb a narrow meaning – respondent was 'using' his prime mover when he unloaded the merchandise from the trailer – circumstances as pleaded and assumed fall within first limb – appeal dismissed.
District Court Civil Rules 2006 (SA)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 187
Decision Date: 2 July 2009

CaseChat Overview and Summary

The case of CGU Insurance Ltd v Pettit involved a dispute between the insurance company, CGU Insurance Ltd (the appellant), and Mr Pettit (the respondent), who sought to be indemnified by the appellants under an insurance policy for any liability he incurred to the plaintiff, Ms Martin, who alleged she was injured when a trailer gate struck her head. The matter was heard in the Supreme Court of South Australia. The core legal issues before the court were whether the Judge had correctly interpreted the insurance contract to require the appellant to indemnify the respondent and if the Judge's determination was interlocutory, allowing for an appeal to a single Judge of the Supreme Court.

The court examined the terms of the insurance policy, which provided for indemnity in respect of bodily injury caused either by the respondent using their motor vehicle or by and during loading or unloading merchandise onto or off the motor vehicle. The policy covered the respondent’s prime mover and a "trailer in control," though the latter was not specifically identified. The Judge ruled that the appellants were liable to indemnify the respondent based on the assumption that the trailer was attached to the prime mover at the time of the accident. The appellants challenged this decision, arguing that the policy did not cover the trailer in the circumstances alleged.

The Supreme Court found that the Judge's determination was not a final judgment but an interlocutory one, as it was based on certain factual assumptions that could differ from the facts found at the trial. The court concluded that the Judge's decision was not conclusive and did not finally determine the rights of the parties, thus categorising it as an interlocutory judgment. Consequently, the appeal against the Judge’s decision was valid.

The final orders of the court dismissed the appeal, affirming that under the circumstances as pleaded and assumed, the insurance policy did cover the incident. The court found that the respondent was "using" his prime mover when unloading the merchandise from the trailer, which fell within the first limb of the policy terms. Thus, the appellants were liable to indemnify the respondent.

Orders

Orders of the court

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Background

Background to the litigation

A Judge of the District Court determined as a preliminary question whether the appellants were liable to indemnify Mr Pettit pursuant to the contract of insurance. The Judge made a declaration that Mr Pettit was “entitled to indemnity from [the appellants] in relation to the plaintiff’s claim.” The appellants have appealed to the Supreme Court against the decision of the Judge. Background Mr Pettit and two other defendants were sued in the District Court of South Australia in respect of personal injuries alleged to have been sustained by Ms Martin (“the plaintiff”). The plaintiff alleged that she sustained personal injuries in the course of assisting Mr Pettit to unload goods from a refrigerated trailer. She alleged that she was standing on the road behind the trailer when one of the doors of the trailer “blew shut striking her forcefully from behind on the head.” The other defendants owned the trailer. The trailer had been towed to the place where the accident happened by a prime mover owned by Mr Pettit. The other defendants to the action filed a contribution notice claiming an entitlement to contribution from Mr Pettit in respect of their liability to the plaintiff. The appellants carry on business jointly as National Transport Insurance. Under that name they provide insurance to those in the transport industry. Mr Pettit entered into a contract of insurance with them, trading as National Transport Insurance, through its manager NTI Ltd. Mr Pettit joined the appellants as third parties. He filed a third party statement of claim claiming indemnity from the appellants in respect of any liability that he had to the plaintiff. The third party statement of claim alleged, and it was admitted by the appellants in their defence to the third party statement of claim (“the Defence”), that a policy of insurance was issued by the appellants in respect of Mr Pettit’s prime mover. The third party statement of claim alleged that at the time of the plaintiff’s injury, the trailer was attached to the prime mover. This was denied by the appellants in the Defence. Mr Pettit alleged that his actions “in unloading the said trailer amounted to the use of the Vehicle within the meaning of the Policy.” This too was denied by the appellants. By application dated 25 June 2008, Mr Pettit sought the determination of the liability of the third parties as a preliminary point. The application was granted by consent on the same day. The matter subsequently came on for hearing before the Judge. The appellants and Mr Pettit provided the Judge with a book of agreed documents, including the written contract of insurance (“the Policy”). The parties were not agreed on any of the facts, but submitted to the Judge that he should decide the preliminary question on the basis that the facts alleged in the plaintiff’s statement of claim would be made out at the trial of the action. Counsel for the appellants submitted that the Judge should further decide the issue on the basis that at the time of the plaintiff’s injuries, the trailer was attached to the prime mover, a fact which the appellants denied in the Defence. The Policy

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the course of submissions Mr Duggan and Mr Manetta referred me to a number of cases, but in the end none of them are of any real assistance when considering the meaning of the Policy. As one would expect, they turn on the terms of the particular Policy. Most of them deal with a grant of indemnity in respect of liability “arising out of the use of” a motor vehicle, either standing alone or coupled with “use” of a motor vehicle. I found no case dealing with a policy in terms substantially the same as the Policy. Conclusion For those reasons, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

In the alternative, the Judge held that the circumstances alleged and agreed fell within s 2(a)(A)(2) of the Policy. The “Policy Schedule” describes two items – Mr Pettit’s prime mover and, separately, a “Trailer In Control”. The Policy defines “Motor Vehicle” to include “a trailer”. Accordingly, in the Policy a reference to “Motor Vehicle” will include or can include “a trailer”. The Policy records that the insurer provides “indemnity in respect of any Motor Vehicle described in the Schedule …”. “Trailer In Control” is therefore a motor vehicle described in the Schedule. In s 2(a)(A)(2) the reference to “Your Motor Vehicle” was not to be read as referring only to a motor vehicle belonging to the respondent. It was common in the trucking industry, the Judge said, for a prime mover to move freight on trailers not owned by the owner of the prime mover. In the Schedule, “Trailer In Control” could not have been intended to be limited to a trailer owned by the respondent. If it was, it would have been identified by registration number or in some other way, but it was not so identified. For those reasons the Judge concluded that the alleged and agreed circumstances amounted to “… unloading merchandise … off Your Motor Vehicle direct to … a fixed place of rest beside Your Motor Vehicle …”, and accordingly fell within s 2(a)(A)(2).Consideration of appeal Mr Duggan submits that the provision made by s 2(a)(A)(2) must be read as limiting what might otherwise be the scope of the expression “using Your Motor Vehicle” in s 2(a)(A)(1). He submits that otherwise, if “using Your Motor Vehicle” is given the meaning attributed to it by the Judge, there would be no work left for s 2(a)(A)(2). Loading or unloading merchandise would fall within “using Your Motor Vehicle”, leaving, as Mr Duggan submits, no work for the reference to loading or unloading merchandise. I do not accept that submission. I consider that s 2(a)(A)(2) is more naturally to be read as expanding the reach of the Policy. The loading or unloading of merchandise from a motor vehicle might well involve activities which would be impossible or difficult to describe as “using Your Motor Vehicle”, even though in some circumstances loading or unloading merchandise would readily fall within the concept of “using Your Motor Vehicle”. For example, if the insured vehicle was a flat top truck, loading merchandise onto the flat top, or unloading merchandise from the flat top, might well fall within each of the relevant provisions. But it is not difficult to envisage aspects of loading or unloading which, as I have already said, would not be regarded as an aspect of using a motor vehicle, but which might fall within s 2(a)(A)(2). Similarly, in my opinion s 2(a)(A)(3) is to be read as further extending the reach of the Policy. There are circumstances in which the events described in that provision might amount to using a motor vehicle. If an item of merchandise fell off the postulated flat top tray truck while it was being driven along the road, causing injury to a bystander, the event would fall within s 2(a)(A)(1) and within s 2(a)(A)(3). Once again, one can imagine circumstances in which an event falling within the latter provision would not amount to using a motor vehicle.