Constantino v Youi Pty Ltd

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Constantino v Youi Pty Ltd [2018] QMC 1

PARTIES:

TANYA CONSTANTINO
(Plaintiff)

v

YOUI PTY LTD
ACN 123 074 733
(Defendant)

FILE NO/S:

54073 of 2016

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

1 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2018

MAGISTRATE:

Magistrate Hay

ORDER:

1. I give judgement for the plaintiff against the defendant.
2. I will hear from the parties on the question of costs.

CATCHWORDS:

INSURANCE CONTRACTS ACT – SECTION 51 – INSURED CANNOT BE FOUND – ‘REASONABLE ENQUIRY’ – Whether there is a continuing obligation to undertake ‘reasonable enquiries’ – Whether enquiries made were reasonable in the circumstances.

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES –QUANTUM – Pre-accident market value – Expert evidence

CASES:

Bayswater Car Rental Pty Ltd v Hannell (1999) 29 MVR 35
James v Hill & Anor [2010] QSC 70
Hannell v Bayswater Car Rental Pty Ltd (1997) 10 ANZ Ins Cas 61-387

COUNSEL:

M Eade for the Plaintiff

D Kissane for the Defendant

SOLICITORS:

Sparke Helmore Lawyers for the Plaintiff

 Ligeti Partners Lawyers for the Defendant

1.   The plaintiff claims against the defendant insurer for property damage arising from a motor vehicle accident that occurred on 19 April 2015.  The plaintiff relies upon s. 51 of the insurance Contracts Act 1984 (Cth) to found its cause of action directly against the other driver’s insurer on the basis that, despite reasonable enquiry, it has been unable to locate the defendant’s insured.[1]

[1] Section 51(1)(b)

2.   The only issues for determination are:

a.   whether the plaintiff made ‘reasonable enquiry’ within the meaning of s. 51(1)(b) of the Act; and

b.   whether the pre-accident market value of the plaintiff’s vehicle was $4,500 as alleged by the plaintiff[2] or $3,250 as alleged by the defendant.[3]

[2] Reply filed 14 November 2017, Court doc no. 8; Plaintiff’s Response to Particulars filed 27 February 2018, Court doc no. 10.

[3] Amended defence filed 19 October 2017, Court doc no. 7.

Reasonable Enquiry

3.   Section 51 of the Act creates a separate cause of action directly against the defendant insurer.  To succeed in her cause of action, the plaintiff must prove, on the balance of probabilities:

a.   that there is a valid policy of insurance in place between the defendant and its insured, Amanda Gay.  This is not disputed by the defendant.[4]

b.   that she, the plaintiff, has a valid claim.  This is not disputed by the defendant.[5]

c.   that the plaintiff has been unable to locate the insured despite reasonable enquiry.

[4] The defendant admits that Amanda Gay is an insured or third party beneficiary under a contract of liability insurance provided by the defendant, and the policy covers liability for Amanda Gay’s operation of the defendant’s vehicle and the resulting collision, loss and damage to the plaintiff’s vehicle: paragraph 6(a) and 6(b) of the Statement of Claim and paragraph 2(a) of the Amended Defence

[5] The defendant admits liability for the collision and for the damages arising from the…