Harvey Trinder (NSW) Pty Ltd v Government Insurance Office of NSW

[1966] HCA 25

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

HARVEY TRINDER (N.S.W.) PTY. LTD. v. GOVERNMENT INSURANCE OFFICE OF N.S.W.

(1966) 114 CLR 449

29 April 1966

Motor Vehicles

Motor Vehicles—Third party insurance—Policy—Bodily injury caused by or arising out of "use" of motor vehicle—Injury from defective apparatus mounted on tray of stationary motor truck—Motor Vehicles (Third party Insurance) Act, 1942-1951 (N.S.W.).

Decisions

The following judgments were delivered: -
BARWICK C.J. I adhere to what I said in the Government Insurance Office of New South Wales v. R.J. Green and Lloyd Pty. Ltd. (1966) 114 CLR 437 There I said, as counsel has recently cited, "After consideration, I have come to think it better to endeavour to apply the statutory expression as it is to circumstances as they arise, bearing in mind, as my brother Menzies has pointed out in Fawcett v. B.H.P. By-Products Pty. Ltd. (1960) 104 CLR 80, at pp 87,88 that in this field one should not be seeking subtleties but rather applying broad and practical conceptions" (1966) 114 CLR, at p 444 The question here is whether the injury to the man Reely arose out of the use of the insured motor vehicle. The injury resulted from the snapping or loosening of a steel cable attached to a tree at one end and to the drum of a winch fastened to the table-top of the motor truck at the other end. That winch was part of the gear of a crane mounted on the truck but was not in use as such a part at the time in question. (at p451)

2. The winch was powered from an off-take of the motor truck's engine but the truck itself was immobilized by being secured to a tree, which acted as an anchor to keep the vehicle in place against the effort of the winch and the cable. (at p452)

3. The resolution of this matter and of matters of a like kind is not without its difficulties, but I have reached the clear conclusion myself that the injury received by Reely did not arise out of the use of the motor vehicle. That the truck would be moved to another anchorage after the tree, then in the course of being felled, had fallen, or that the winching of a tree, as described, was part of an overall operation of land clearance which did involve the movement of the vehicle from time to time or that the function of the vehicle was to move the winch itself from position to position, in my opinion, is not relevant to the resolution of the question. Even if the reference in the policy to item 17 (a) of the schedule of rates, and to the use which might be made of the insured motor vehicle without payment of an additional premium have any relevance to the question whether the injury arose out of the use of the motor vehicle - a matter upon which I express no concluded opinion - in my opinion, the injury to Reely none the less did not arise out of the use of the motor vehicle within the meaning of those words in the policy. (at p452)

4. In the result therefore I am content with the conclusion of the Full Court as to the ultimate fact and I am of opinion that the appeal should be dismissed with costs. (at p452)

McTIERNAN J. I agree. In my opinion the true conclusion to reach is that this injury arose out of the use of the winch, not of the motor vehicle. (at p452)

MENZIES J. I agree with the Chief Justice. I would merely add that, as presently advised, I am not myself disposed to regard a classification of motor vehicles for the purposes of determining the rates of premiums as affording any assistance in determining whether, in particular circumstances, bodily injury has been caused by, or arose out of, the use of the motor vehicle. (at p452)

WINDEYER J. I think that this appeal must be dismissed. I have endeavoured in other cases to state my view of the scope and operation of insurance policies in the form of that here in question. I shall not repeat anything that I have said. I see no reason to modify my views. Each case must depend upon its own facts, and the question is always whether, on those facts, the injury was caused by or arose out of the use of the motor vehicle. Nothing I think is to be gained by assuming different facts and seeking to arrive at a conclusion from them. The conclusion on the facts of this case that the appeal must be dismissed accords, I consider, with the judgments given in this Court in other cases. (at p453)

OWEN J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice. (at p453)

Orders

Appeal dismissed with costs.