Insurance Australia Limited T/As NRMA Insurance Limited v John David Dickason
[2007] ACTCA 13
•18 June 2007
INSURANCE AUSTRALIA LIMITED T/AS NRMA INSURANCE LIMITED
v JOHN DAVID DICKASON and ANOR
[2007] ACTCA 13 (18 June 2007)
APPEAL – Motor Vehicle Accident - Third Party Insurance - Passenger applies handbrake on moving vehicle – whether this amount to driving the vehicle
Motor Traffic Act 1936, s 54
Road Transport (General) Act 1999
State Government Insurance Commission v Sweeny (1989) 52 SASR 139
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Wheatley v Patrick (1837) 150 ER 917
Riley v Insurance Commissioner of the State of Victoria [1972] VR 265
Ricketts v Laws (1988) 14 NSWLR 311
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89
Commercial Building Centre Pty Ltd v NRMA Insurance Limited [2004] ACTCA 3
Government Insurance Office of New South Wales v RJ Green & Lloyd PtyLimited (1966) 114 CLR 437
House v The Queen (1936) 55 CLR 499
Podreberserk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
British Fame (Owners) v MacGregor (Owners) [1993] AC 197
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 40 - 2006
No. SC 336 of 2004
Judges: Higgins CJ, Connolly and North JJ
Court of Appeal of the Australian Capital Territory
Date: 18 June 2007
IN THE SUPREME COURT OF THE ) No. ACTCA 40 - 2006
) No. SC 336 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LIMITED (ABN 11 000 016 722) T/AS NRMA INSURANCE LIMITED
Appellant
AND:JOHN DAVID DICKASON
First Respondent
AND:TINA MAREE MASON
Second Respondent
ORDER
Judges: Higgins CJ, Connolly and North JJ
Date: 18 June 2007
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 40 - 2006
) No. SC 336 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LIMITED (ABN 11 000 016 722) T/AS NRMA INSURANCE LIMITED
Appellant
AND:JOHN DAVID DICKASON
First Respondent
AND:TINA MAREE MASON
Second Respondent
Judges: Higgins CJ, Connolly and North JJ
Date: 18 June 2007
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of the Master of 14 September 2006 in a motor vehicle personal injury claim. His Honour entered judgment for the plaintiff against the defendant subject to a reduction for contributory negligence, with damages to be assessed, and ordered the third party insurer to indemnify the defendant. The circumstances of the accident were unusual and raised the issue of who was the “driver” of a motor vehicle for the purposes of the legislation relating to compulsory third party insurance. The Master found that the plaintiff suffered injuries when the car, which she was driving, veered off the road on Barry Drive near Black Mountain in the Australian Capital Territory after the defendant, who had been sitting in the car as a front seat passenger, applied the handbrake to the vehicle. There was evidence that the plaintiff and the defendant, who were in a relationship, had been arguing during the course of the drive from the city towards Belconnen.
The real question before the Master, and the substantial issue on this appeal, is not whether the plaintiff should have been awarded a judgment against the defendant, rather it is whether the insurer should be required to indemnify the defendant pursuant to the compulsory third party motor vehicle insurance regime on the basis that, by applying the handbrake, the defendant also became a “driver”. The issue of the extent of the finding of contributory negligence was also in issue.
Compulsory Third Party Insurance
In the Australian Capital Territory, as in other parts of Australia, the legislature has long provided that every motor vehicle must, as part of the annual registration process, be covered by some form of insurance in respect of personal injury. There are substantial penalties for operating a motor vehicle without such insurance, and in this jurisdiction, as in other parts of Australia, there is created a Nominal Defendant so that persons injured by motor vehicles not covered by insurance are not left without a remedy. The clear legislative intent, maintained over many years, is to spread the inevitable risk of personal injury arising from motor vehicle use across the whole motoring community.
At the time of this accident the relevant legislation was the Motor Traffic Act 1936 (the Act). This has subsequently been repealed and replaced by the Road Transport (General) Act 1999 (the Road Transport (General) Act) which, subject only to a statutory definition to be referred to later, contains a substantially similar regime of compulsory insurance.
The Act required owners of motor vehicles to hold an approved policy of third party insurance to be in accordance with a prescribed form. Section 54 of the Act provided that:
(1) In order to comply with the requirements of this Part, a third party policy-
(a) shall be issued by an authorised insurer;
(b) shall, where the policy is issued in relation to the use of a particular motor vehicle, insure the owner of the motor vehicle mentioned in the policy and any other person who at any time drives the motor vehicle whether with or without the authority of the owner, jointly and each of them severally, against all liability incurred by that owner and that person jointly, or by either of them severally, in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth.
It is common ground that the plaintiff was at all material times both the owner of the motor vehicle and the person sitting in the driver’s seat, with her hands on the steering wheel and otherwise operating the controls of the motor vehicle. The defendant was sitting in the front passenger seat. The Master found (and his finding is not challenged on this appeal) that from that position the defendant applied the handbrake to the motor vehicle while it was in motion, and it was this application of the handbrake that caused the vehicle to run off the road. The question is whether, pursuant to the terms of the policy prescribed by s 54 of the Act, the defendant, in so acting, falls within the terms of the prescribed policy as a person “who at any times drives the motor vehicle”.
Was the defendant the driver of the motor vehicle?
In determining whether or not a person who applies a handbrake to a moving motor vehicle in a manner that affects the control of the motor vehicle can be said to “drive” the motor vehicle for the purposes of compulsory third party insurance, the Master had regard to many decisions of Australian courts where a similar question has arisen. As each decision will fall both on its own facts and on the terms of the particular state or territory legislation requiring motor vehicle third party insurance, the Master was not directly bound by authority on this question. He clearly was assisted by the reasoning of the Full Court of the South Australian Supreme Court in State Government Insurance Commission v Sweeny (1989) 52 SASR 139. In his judgment the Master said (at [92]):
Where there is no authority binding upon me it is preferable that I follow the Full Court of an Australian Supreme Court where there is a decision which relates to the construction of the word “drives” in third party insurance legislation, as opposed to penal legislation. For that reason I propose to follow SGIC v Sweeny.
His Honour was criticised in this appeal for falling into an error of considering himself bound by this decision. We do not consider that this is what his Honour has done at all. Rather, he has acknowledged the guidance to be obtained from this decision. Although strictly the doctrine of precedent as understood within Australia does not bind a single judge in one jurisdiction to follow an appellate decision in another jurisdiction, we are mindful that in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, the High Court (Mason CJ, Brennan, Dawson Toohey and Gaudron JJ) said (at 492) in the context of national uniform legislation that:
an intermediate appellate court- and all the more so a single judge- should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.
Although that statement was made in the context of uniform state and territory legislation, the structure of motor vehicle law throughout Australia is sufficiently similar for courts to gain significant guidance from decisions in other jurisdictions, and this is all that the Master has done in this case.
It is clearly the law that, in the context of insurance, a motor vehicle may have more than one driver. This has probably been good law even before motor vehicles came into existence (Wheatley v Patrick (1837) 150 ER 917) and has been restated in cases such as Riley v Insurance Commissioner of the State of Victoria [1972] VR 265 and Ricketts v Laws (1988) 14 NSWLR 311, a decision of the Court of Appeal that held that a driving instructor, seated next to a learner driver who was at the wheel in a vehicle without dual controls, could nevertheless be said to be driving the vehicle for insurance indemnity purposes.
We were urged by Mr Deakin SC, counsel for the appellant, to formulate a clear definition of driving for the purposes of third party insurance issues. It seems to us that this is not appropriate or necessary for the disposition of this appeal. We make the observation that the Act contained no definition of drive or driving. This legislation has now been repealed, and the Road Transport (General) Act which replaces it does provide a definition within the dictionary that to drive a vehicle includes:
Being in control of the steering, movement or propulsion of the vehicle.
We are mindful of the observations of McHugh J in Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, a case concerning whether the third party insurer should indemnify a passenger who was assisting to repair a stationary vehicle and was injured when the jack slipped. His Honour observed that the relevant Western Australian legislation did not contain a definition of drive, and referred to many of the cases that have considered the question. He said (at [52]):
Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of “driving” show that it is not always easy to draw a line between an activity that can be described as “driving” and one that cannot be so described.
This cautious approach to seeking to provide a comprehensive definition of “drive” is consistent with the approach Barwick CJ adopted when urged to definitively resolve another longstanding (and still litigated, see: Commercial Building Centre Pty Ltd v NRMA Insurance Limited [2004] ACTCA 3) question of insurance law, that of whether an accident “arises out of the use” of a motor vehicle. In Government Insurance Office of New South Wales v RJ Green & Lloyd PtyLimited (1966) 114 CLR 437 his Honour said (at 443-444):
I see no need in order to decide this case to attempt an exposition universally applicable of what constitutes a use for the purposes of the Act and of a policy such as the present, or to express a general view as to the precise ambit of the expression “arising out of”. Indeed, it seems to me unprofitable to attempt to interpolate in the words of the Act or the words of the indemnity in the policy some adjective or adjectival expression in an endeavour to limit the generality of the expression “the use of the motor vehicle” so as to confine it within what is considered to be the evident purpose of the legislation. ...
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 BHP By-Products Pty Ltd (1960) 104 CLR 80 at 87 that in this field one should not be seeking subtleties but rather applying broad and practical conceptions.
Given the absence of a statutory definition of driving, and the lack of clear and binding authority, it is not surprising that his Honour found guidance from the decision of the South Australian Full Court in Sweeny. That case involved a passenger who was seated in the front passenger seat, and who reached over and grabbed and manipulated the steering wheel. In his reasons Legoe J did not attempt to provide a comprehensive definition of driving - the course urged upon us by Mr Deakin SC, and viewed with some scepticism by McHugh J in InsuranceCommission of Western Australia v Container Handlers Pty Ltd. Rather, following a comprehensive review of the authorities, he set out a number of criteria that, it seems to us, provide assistance in the task of determining whether a person was driving a motor vehicle at any given time.
Legoe J said:
A number of authorities were referred to and discussed in the submissions of both counsel. It seems to me the following propositions are established by those authorities:
1.It is a matter of fact whether a motor vehicle is being “driven” by a particular person or not: see W P Smith Pty Ltd v State Government Insurance Commission (1983) 33 SASR 20 at 23 per Millhouse J.
2.The Road Traffic Act and the Motor Vehicles Act are so linked that the word “drive” in the Motor Vehicles Act, as amended, must have the same meaning as in the Road Traffic Act: see Bassell v McGuinness [(1981) 29 SASR 508] at 512 per King CJ, confirmed in Williams v Urie (1984) 36 SASR 173 at 174 per King CJ, a decision of the Full Court (Zelling and White JJ agreeing).
3.The clear purpose and intention of the Motor Vehicles Act (Third Party Insurance –Part IV) warrants a liberal interpretation to be given to the liability provisions in the Act and the words of the policy in the Fourth Schedule: see Mercorella v Page [(1975) 12 SASR 431] at 433 per Walters J, and Ricketts v Laws [(1988) 14 NSWLR 311] per Kirby P at 314G to 315B and 319G.
4.The simple meaning of the word “drives” or “driving” is the starting point for considering any factual situation: see R v McDonagh [[1974] QB 448] per Lord Widgery at 451.
5.A vehicle may have more than one “driver” at the same time: see the cases on driving instructors including Langman v Valentine (1952) 2 All ER 803 at 805 and Ricketts v Laws.
6.Many of the authorities are concerned with the meaning of the word “drive” or “drives” in the context of legislation which imposes criminal responsibility on those who fall within the relevant provisions. Here the Court is not concerned with interpretation of provisions that impose penal sanctions, but, on the contrary, civil liability sounding in money by way of indemnity. In my judgment, when interpreting legislation which provides for civil liability (as in this case under the Motor Vehicles Act) the court would not (unless the provisions expressly stated otherwise) interpret such provisions more strictly than the related provisions in that Act or a related Act imposing penal sanctions. In the Motor Vehicles legislation itself, there are a number of provisions which impose penal sanctions; see and contrast ss 9 and 102, sections imposing penal sanctions for driving a motor vehicle on a road which is unregistered or uninsured;…. Further, the authorities clearly establish that the linking of the provisions of the Road Traffic Act and the Motor Vehicles Act is such that a similar meaning is to be attributed to the meaning of the words “to drive” (Fourth Schedule of the Motor Vehicles Act) and “driver” (Road Traffic Act): see R v McDonagh, Bassell v McGuinness, and the Canadian decision which was fully discussed in augment in this case, of Belanger v The Queen (1970) 2 CCC 206. Compare these cases with the decision in W P Smith Pty Ltd v SGIC (supra) in relation to the liability pursuant to the statutory policy in the Fourth Schedule of the Motor Vehicles Act.
7.Jacobs P said in Shortland County Council v Government Insurance Office (NSW) [1973] 2 NSWLR 257 at 260 and applied by my brother, Milhouse J, in W P Smith Pty Ltd v SGIC at 22, the mere sitting in the driver’s seat cannot be the test, nor can the mere intention of driving the vehicle be a conclusive test as to whether, in fact, a person is the driver or not. It is the control of the vehicle to the relevant degree which has universally been adopted as the criterion for determining whether, in fact, a person was a driver.
Applying these criteria to the facts in this case lead us to the same conclusion as that reached by the Master, that is, that in applying the handbrake to a vehicle moving on a public road at speed can amount to “driving” that vehicle when the consequence of the application of the handbrake is such as to impact on the direction and control of the vehicle. The Master found that the vehicle was travelling somewhat in excess of the posted 80 kph speed limit at the time the brake was applied. It seems to us that the Master’s finding that, in the circumstances of this case, the defendant was the driver of the vehicle at the time such that the indemnity provisions of the third party motor vehicle insurance policy were enlivened, is correct.
The Master, quite properly, found considerable assistance from these remarks, as do we. We would only add that, to the extent that there may be tension between the second proposition set out by Legoe J, that the word “drive” should have the same meaning throughout an Act, and the sixth proposition, that in working out the meaning of a word in a provision governing insurance liability, care should be taken in considering decisions where the same word is used to impose a criminal penalty, we would give emphasis to the latter. The proposition that a penal statute should be strictly construed, is well settled (Scott v Cawsey (1908) 5 CLR 132 at 154) and it is entirely appropriate that the word “drive” would be given a stricter construction in that context. The facts of this case well illustrate the point, in that the Master held that, at the point at which the passenger applied the hand brake, he also became the “driver” for the purposes of insurance indemnity. The evidence is that, at this point, the car was exceeding the speed limit, but it is hard to see how a conviction for driving over the speed limit could be sustained against the passenger.
Contributory Negligence
The question of contributory negligence is clearly a discretionary judgment and so the principles of House v The Queen (1936) 55 CLR 499 apply, in that an appellate court should only intervene if error is demonstrated. In Podreberserk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 a finding of apportionment has been said to be:
“a question, not of principle or of positive findings of fact or law, but of proportion, of balance and of relative emphasis and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. Such a finding, if made by a judge, is not lightly reviewed.”
(Per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ, citing Lord Wright in British Fame (Owners) v MacGregor (Owners) [1993] AC 197 at 201).
The Master found that by driving beyond the speed limit, the plaintiff was herself negligent, but he found that, in circumstances where the defendant suddenly applied the handbrake, this amounted to contributory negligence only to the extent of ten percent. In the absence of any expert engineering evidence that it would have made a significant difference to the behaviour of the car when the handbrake was suddenly applied at 85 or 90 kph as opposed to 80 kph, which was the posted speed limit for the area, this decision seems to us to be well within the bounds of the discretion available to his Honour. Although the defendant himself gave evidence that, having previously worked as a driving instructor, he thought that it would be safe to apply the handbrake to slow the car, this does not amount to expert engineering evidence, and indeed cuts both ways, as, if a former driving instructor thought that it was safe to apply a handbrake at the speed the car was travelling, it must indicate that the degree of contributory negligence on the part of the plaintiff was limited.
It was argued that the Master erred in disregarding the argument that the plaintiff was negligent in failing to stop to allow the defendant to alight from the car. His Honour clearly considered, but rejected this argument. We do not think that he fell into appellable error in so doing. There was evidence that the defendant had been arguing with the plaintiff and demanding to be let out of the car. We were taken to passages in the transcript that suggested that he had put his hand over the handbrake as though threatening to apply it to stop the car. There was also evidence that a similar pattern of behaviour had occurred earlier in the evening when the plaintiff had driven him into Civic. On that occasion, despite threats and demands, he had not in fact taken any action to try to stop the car. Applying the handbrake as a passenger to try to stop or slow a moving vehicle is clearly negligent and dangerous behaviour and, it seems to us, the Master did not fall into appellable error by concluding that it was not contributory negligence for the plaintiff not to stop the car when her argumentative partner demanded that she do so.
The appeal should be dismissed, with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 18 June 2007
Counsel for the Appellant: Mr PJ Deakin QC with Mr MA McDonogh
Solicitor for the Appellant: DLA Phillips Fox
Counsel for the First Respondent: Mr R Crowe SC with Mr C Ryan
Solicitor for the First Respondent: Lander & Co
Counsel for the Second Respondent: Mr M Cranitch SC with Mr J Saintly
Solicitor for the Second Respondent: Blumers, Personal Injury Lawyers
Date of hearing: 11 May 2007
Date of judgment: 18 June 2007
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