Conway v Cic General Insurance Limited
[2000] WADC 285
•8 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CONWAY -v- CIC GENERAL INSURANCE LIMITED [2000] WADC 285
CORAM: COMMISSIONER MARTINO
HEARD: 20 APRIL 2000
DELIVERED : 8 NOVEMBER 2000
FILE NO/S: CIV 420 of 1999
BETWEEN: MARK PETER CONWAY
Plaintiff
AND
CIC GENERAL INSURANCE LIMITED
Defendant
Catchwords:
Insurance - Risk - Activities of a private, social or domestic nature
Legislation:
Nil
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff: Mr A R Paternoster
Defendant: Mr C C Rimmer
Solicitors:
Plaintiff: Leonard Cohen & Co
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Young v Sun Alliance and London Insurance Ltd [1977] 1 WLR 104
Case(s) also cited:
AF & G Robinson v Evans Bros Pty Ltd [1969] VR 885
Australian American Assurance Co Ltd v Slavin (1988) 5 ANZ Insurance Cases 60-859
Cameron v Commercial Union General Insurance Co Ltd (1983) 2 ANZ Insurance Cases 60-542
Dufty v City Mutual General Insurance Limited (1977) Qd R 94
Higgins v Dawson [1902] AC 1
Homeowners Insurances Pty Ltd v Job (1983) 2 ANZ Insurance Cases 60-535
Re Sun Alliance Insurance Ltd, ex parte Bonastre (1974) Qd R 128
Robertson v French (1803) 4 East 130, 135
United City Merchants (Australia) Pty Ltd v MGICA Ltd & Anor (1985) 3 ANZ Insurance Cases 60-603
COMMISSIONER MARTINO: This action arises out of a claim under a contract of insurance between the plaintiff and the defendant. The evidence took the form of the statement of agreed facts in the following terms:
"1.At all material times the Plaintiff was a farmer at Nelson Location 1259, Lot 1 Balbarrup Road, Manjimup Western Australia.
2.The nature of the Plaintiff's farming was orcharding or stone fruit orchard development and establishment.
3.At all material times the Defendant was a limited company registered and incorporated in Australia.
4.In April 1991 the Plaintiff agreed to take out a policy of personal accident insurance from the Defendant, being policy number RC 648833. A copy of the policy is annexed hereto together with a copy of the proposal completed by the Plaintiff and signed by him on 11 April 1991.
5.The material terms of the policy were:
(a)That the Defendant would insure the Plaintiff against accidental injury anywhere in Western Australia whilst the Plaintiff was 'engaged in normal farming pursuits or other activities of a private, social or domestic nature.'
(b)That upon accepting a claim by the Plaintiff pursuant to the policy, the Defendant would pay a maximum of $400.00 gross per week to a maximum sum of $40,000.00.
6.The Plaintiff was employed by Bunnings Forest Products Pty Ltd ('Bunnings') between 20 July 1989 and 24 August 1995, continuously but did not carry out any work after 8 August 1991.
7.On 8 August 1991 in the employ of Bunnings, the Plaintiff suffered an injury whilst engaged in the activity of tree felling.
8.After 8 August 1991 the Plaintiff received weekly payments of compensation from Bunnings until the prescribed amount was reached in 1995.
9.As a result of the injury the Plaintiff is unfit to engage in his normal farming pursuits.
10.The Defendant has not paid the Plaintiff any benefits pursuant to the policy."
The action turns on the extent of the cover provided by the words quoted in par 5(a) of the statement of agreed facts.
In his submissions counsel for the plaintiff informed me that the plaintiff did not contend that at the time he suffered injury the plaintiff was engaged in normal farming pursuits. The plaintiff's claim is that at that time he was engaged in an activity of a private nature. The issue to be determined therefore is whether the activity of tree felling while in the employment of Bunnings Forest Products Pty Ltd is an activity of a private nature for the purposes of the policy.
The policy is entitled:
"AUSTRALIAN FARM COVER POLICY"
In a schedule to the policy that was completed by the plaintiff as part of his proposal he was asked to state all occupations. The occupations listed were:
"Tree Feller (employee)
Orchardist self employed"
Counsel for the defendant has referred me to the following definitions of the word private in the Oxford and Macquarie Dictionaries:
"15.The Oxford Dictionary defines the word 'private' to mean 'of a person, not holding public office or an official position; of or pertaining to a person in a non official capacity; not open to the public; restricted or intended only for the use of a particular person or persons; that belongs to or is the property of a particular person; one's own; of, pertaining to or affecting a particular person or group of people, individual, personal. Peculiar to a particular person or persons'.
16.The Macquarie Dictionary defines 'private' to mean "belonging to some particular person or persons; belonging to oneself; being one's own; pertaining to or effecting a particular person or a small group of persons; individual; personal".
It is of course necessary to interpret the word "private" in the context in which it appears. Counsel for the defendant has referred me to Young v Sun Alliance and London Insurance Ltd [1977] 1 WLR 104 where an insurance policy provided cover against loss or damage from "storm, tempest or flood". The Court of Appeal held that water entering into a house due to the diversion beneath the house of some natural source of water was not within the cover provided by the policy because in the context in which the word appeared flood like storm and tempest referred to a natural phenomenon which has some element of a violent, suddenness or largeness about it.
In my view the words social and domestic do not, in the context of this policy, limit the meaning of the word private. In my view the plaintiff's activities while in the employment of Bunnings were activities relating to his own private employment by that company rather than a public activity for example, in an employment context, holding a public office. I can find no concept common to the use of the words "private, social or domestic nature" which limit the meaning of the word private to exclude the plaintiff's employment activities. I conclude therefore that the plaintiff is entitled to succeed in this action. I will hear counsel for the parties on the form of the judgment, including the calculation of interest.
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