Insurance Australia Limited Trading as NRMA Insurance v Tu'ulenana IULI and BENSAH Afiabo
[2013] ACTSC 209
•11 OCTOBER 2013
INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE v TU’ULENANA IULI and BENSAH AFIABO
[2013] ACTSC 209 (11 OCTOBER 2013)
INSURANCE – Motor vehicles – Third party insurance – cyclist injured by debris forty minutes after motor-vehicle collision occurred – whether injury must happen at the time of the accident – requirement that there be a causal link between personal injury and actions of motor vehicle – Road Transport (Third-Party) Insurance Act 2008 (ACT), s 7.
Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 7, 8, 18, 19, 20, 22, 69, 70, 72, 78, 97, 118, 122, 135
Road Transport (General) Act 1999 (ACT) s 163
Legislation Act 2001 (ACT) s 142
Motor Accidents Compensation Amendment Act 2010 (NSW)
Motor Accidents Compensation Act 1999 (NSW) s 3
Motor Vehicles Insurance Act 1936 (Qld)
Motor Vehicles Insurance Act Amendment Act 1988 (Qld)
Motor Accident Insurance Act 1994 (Qld) s 5(1)
Motor Vehicles Amendment Act 1988 (SA)
Motor Vehicles Act Amendment Act 1986 (SA)
Explanatory Statement, Road Transport (Third-Party Insurance) Bill 2007 (ACT)
Presentation Speech, Road Transport (Third-Party Insurance) Bill 2007 (ACT)
Accident Compensation Commission v CE Heath (1994) 68 ALJR 525; 121 ALR 417
Allianz Australia v GSF Australia (2005) 221 CLR 568
Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374
Commercial Building Centre Pty Ltd v NRMA Insurance Ltd (2004) 40 MVR 370
Commissioner for ACT Revenue v Dataflex Pty Ltd (2011) 5 ACTLR 271
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500
Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89
Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80
Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437
Ilsley v Wattyl (1997) 144 ALR 510
Insurance Commission (WA) v Container Handlers (2004) 218 CLR 89
State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552
Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Australia Ltd [2000] 2 Qd R 682
Zotti v Australian Associated Motor Insurers Ltd (2009) 54 MVR 111
No. SC 235 of 2013
Judge: Master Mossop
Supreme Court of the ACT
Date: 11 October 2013
IN THE SUPREME COURT OF THE )
) No. SC 235 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:INSURANCE AUSTRALIA LIMITED T/AS NRMA INSURANCE
Plaintiff
AND:TU’ULENANA IULI
First Defendant
AND:BENSAH AFIABO
Second Defendant
ORDER
Judge: Master Mossop
Date: 11 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The originating application filed 26 June 2013 is dismissed with costs.
On 29 May 2011 the second defendant was driving his Volkswagen Golf motor vehicle in Eggleston Crescent, Chifley. At about 3.00 am he was involved in a single vehicle collision when his motor vehicle left the roadway and crashed down an embankment near a bicycle and pedestrian path which passed under the road. As a result of the accident, debris from the road above came to rest on the path that ran under the road.
At about 3.40 am the first defendant was riding his bicycle to work at The Canberra Hospital. He rode on the path that ran beneath Eggleston Crescent at the underpass. As he rode through that area he struck the debris which was across the path as a consequence of the accident involving the second defendant. The first defendant did not notice the debris until it was too late to stop. Although the evidence is not particularly clear, he appears to have run into a piece of the guard rail from the road above which had been dislodged in the course of the motor vehicle accident and was overhanging the underpass. This caused him to fall from his bicycle and he sustained injuries from the impact and the fall. Police, who were already in attendance, came to see what happened. The first defendant was bleeding from several parts of his body. One of the police officers gave him water to clean himself. The first defendant then continued his journey to The Canberra Hospital and was treated at the Emergency Department at the hospital. The injuries that he suffered were a fractured nose and injuries to his right shoulder, right arm, right shin and neck. He also suffered from shock.
In summary, there was a single vehicle accident involving a car running out of control, colliding with and dislodging various items next to the road. The first defendant collided with debris that had been created by the accident 40 minutes after the accident had occurred. At that stage, the second defendant’s vehicle was still in position but, obviously, all movement of that vehicle had ceased. Police were in attendance but the driver of the vehicle was not at the scene.
In these proceedings the plaintiff, Insurance Australia Limited, seeks a declaration that the accident involving the first defendant was not a motor accident within the meaning of s 7 of the Road Transport (Third-Party Insurance) Act 2008.
The reason that the plaintiff seeks that declaration is that if the incident is not a “motor accident” for the purposes of the legislation then it is not obliged to indemnify the second defendant in relation to any claim brought against him by the first defendant. Such a claim has been foreshadowed as part of the pre-litigation procedures required under the Road Transport (Third-Party Insurance) Act 2008. If the plaintiff is not obliged to indemnify the second defendant not only is the second defendant not insured by the CTP policy provided for under the Act but also the first defendant does not have the benefit of recourse to the second defendant’s CTP insurance if he succeeds in his claim.
The Road Transport (Third-Party Insurance) Act 2008 set up a scheme for compulsory third-party insurance for motor vehicles in the Territory. The relevant provisions of the Act are as follows:
7Meaning of motor accident and injured person
In this Act:
motor accident means an incident that—
(a)involves the use or operation of a motor vehicle; and
(b)causes personal injury to an individual (the injured person); and
(c)happens when—
(i) someone is driving the motor vehicle; or
(ii)someone or something collides with the motor vehicle; or
(iii)someone takes action to avoid colliding with the motor vehicle; or
(iv)the motor vehicle runs out of control.
8When does someone use a motor vehicle?
(1)For this Act:
use, a motor vehicle, includes—
(a)drive, park or stop the vehicle on a road or road related area; and
(b)maintain the vehicle; and
(c)if the vehicle is towing a trailer—use the trailer while attached to the vehicle; and
(d)if the vehicle is a tow truck towing or carrying an uninsured motor vehicle—use or operate the uninsured vehicle being towed or carried; and
(e)anything else prescribed by regulation.
(2)Also, if a trailer being towed by a motor vehicle becomes detached from the vehicle and runs out of control, the use of the vehicle is taken to include the trailer while it is running out of control.
...
18What is a CTP policy?
In this Act:
compulsory third-party policy (or CTP policy) means an insurance policy—
(a)the subject of which is something mentioned in section 19; and
(b)insures someone mentioned in section 20; and
(c)insures against the risk mentioned in section 21; and
(d)does not insure against a risk mentioned in section 22.
19What is insured under a CTP policy?
A CTP policy has the following subjects:
(a)a registered motor vehicle;
(b)a motor vehicle with a valid trader’s plate attached;
(c)a trailer or anything else that—
(i)is attached to a vehicle mentioned in paragraph (a) or (b); or
(ii)becomes detached from a vehicle mentioned in paragraph (a) or (b) and runs out of control;
(d)anything else prescribed by regulation.
20Who is insured under a CTP policy?
A CTP policy insures—
(a)a person who uses an insured motor vehicle; and
(b)anyone else who is vicariously liable for the person’s use of the insured motor vehicle; and
(c)anyone else prescribed by regulation; and
(d)if a person mentioned in paragraph (a), (b) or (c) is dead—the person’s estate.
21What risks are covered by a CTP policy?
A CTP policy insures against the risk of liability for personal injury caused by a motor accident.
22What risks are not covered by a CTP policy?
(1)A CTP policy does not insure against the risk of 1 or more of the following:
(a)liability to pay compensation under the Workers Compensation Act 1951 (or a corresponding law of a State or another Territory);
(b)liability that may be incurred under an agreement unless the liability would have arisen without the agreement;
(c)liability that is attributable to an act that, having regard to the nature of the act and the context in which the act was done, it is reasonable to characterise as an act of terrorism;
NoteSee s (3) in relation to when it is reasonable to characterise an act as an act of terrorism.
(d)liability for personal injury, damage or loss—
(i)that arises independently of a wrongful act or omission; or
(ii)to the extent that the personal injury, loss or damage is attributable to the injured person’s own wrongful act or omission;
(e)liability to pay exemplary, punitive or aggravated damages;
(f)liability to pay damages for a personal injury that arises gradually from a series of incidents;
(g)any other liability prescribed by regulation.
...
The issue is therefore whether, in the circumstances set out above, any liability imposed on the second defendant would be for “personal injury caused by a motor accident”. That, in turn, depends upon the definition of motor accident in s 7.
The plaintiff relies upon the decision of the New South Wales Court of Appeal in Zotti v Australian Associated Motor Insurers Ltd (2009) 54 MVR 111. The plaintiff submits that there was no “motor accident” because the personal injury which was caused did not happen whilst someone was driving the relevant motor vehicle or when the first defendant or his bicycle collided with the motor vehicle or when the first defendant took action to avoid colliding with the motor vehicle or, indeed, when the motor vehicle ran out of control. The plaintiff submits that no meaningful distinction can be drawn between the words considered in Zotti (“is caused during”) and those relevant to the present case (“happens when”). It submits that this Court is bound to follow the “seriously considered dicta” of the High Court which was influential in the Court of Appeal’s decision in Zotti and that, having regard to the relatively unconstrained common law entitlement to damages in the Territory it is not surprising that the Act limits the class of persons who can benefit from CTP insurance.
The argument in favour of the interpretation contended for by the plaintiff is that the word “when” in paragraph (c) of s 7 should qualify paragraph (b) so that there must be a temporal link with one or other of the items in paragraph (c)(i)-(iv). That would mean that the personal injury referred to in paragraph (b) must happen at the time of the activities in (c)(i)-(iv).
This argument is reinforced by the use of the present tense in (c). It is also consistent with the reference to “personal injury” in the definition. Because s 21 requires a causal link to a personal injury, the incorporation of paragraph (b) in s 7, which repeats the requirement that the incident cause personal injury, suggests that the injury occurs at the same time as the items in (a) and (c). Otherwise (b) would be unnecessary as personal injury is already a condition for the operation of the policy of insurance because it is referred to in s 21.
The first defendant submitted that the temporal element involved in the definition has been satisfied in this case because the personal injury to the first defendant was caused during a continuation of the original event. That is because the incident will include the aftermath of the collision ((c)(iii)) or alternatively be sufficiently connected with a motor vehicle running out of control ((c)(iv)). He relies in particular on the judgment of Spigelman CJ in Zotti. Alternatively, the first defendant submits that paragraphs (a) and (c) can be read together and once that occurs there will be an incident and, if the incident causes personal injury to the individual, there has been a motor accident for the purposes of the Act. The reference to personal injury in paragraph (b) is not temporally confined by the word “when”.
The second defendant was joined as a party to the proceedings after the initial hearing on 23 August 2013. Having only become involved in the proceedings relatively late, the second defendant did not wish any factual finding to be made that would preclude a contention on his part that the debris which the first defendant collided with had been moved by police or some other person after the initial incident involving his vehicle. Having regard to the manner in which the matter was argued by the plaintiff and first defendant, it is not, in my view, essential that I make a finding on this issue and nothing that I say in these reasons should be taken as doing so.
What to make of Zotti?
The decision in Zotti featured prominently in the written and oral submissions made by the parties. Zotti involved a similar question to that which arises in the present case. A cyclist alleged that he had slipped on a patch of oil that remained on the road at the scene of a motor vehicle collision. That collision had occurred some two hours before. The vehicles involved in the collision had been towed away. The legislation in question contained the following definitions:
motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.
injury:
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle, and(b) includes:
(i) pre-natal injury, and
(ii) psychological or psychiatric injury, and
(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses,and injured person means a person who suffers such an injury.
The issue was whether the facts alleged by the plaintiff could fall within the definition of “injury” particularly having regard to the words in paragraph (a) of the definition “the injury is a result of and caused during”.
A complicating fact, so far as the Court of Appeal was concerned, was that in the decision of the High Court in Allianz Australia v GSF Australia (2005) 221 CLR 568 there were, in the judgment of Gummow, Hayne and Heydon JJ at [93]-[94], dicta which appeared to their Honours to be inconsistent with the propositions for which the plaintiff in Zotti was contending. These were characterised by the members of the Court of Appeal as “seriously considered dicta” as were referred to in the judgment of the High Court in Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134], [158]. Having regard to the degree of criticism of the New South Wales Court of Appeal made by the High Court in Farah, it is perhaps not surprising that Court of Appeal in a decision shortly after Farah felt bound to follow the dicta in Allianz. I would, however, note that Campbell JA at [112] had some doubts about the proper reading of Farah. Those are doubts which I too share but, as I will explain below, they were not doubts which were able to be resolved in Zotti.
Spigelman CJ, Allsop P and McColl JA held that the effect of the dicta of the High Court in Allianz was that the injury must be sustained, relevantly, “during” a collision. For those judges the issue was then how long did “a collision” continue. Whilst Spigelman CJ (with whom Allsop P and McColl JA agreed), considered that a collision “may well” continue while the vehicles which collided remained in their post-collision positions, it did not extend until all effects of the collision had been removed. Therefore the plaintiff could not succeed because the alleged slip on oil occurred after the colliding vehicles had been removed. Hodgson JA also considered that a collision extended to the time when the colliding vehicles came to a stop. His Honour did not consider that the reference to a collision could be interpreted as extending to when vehicles and debris were removed. That might only be achieved by interpreting “collision” as “collision incident” which in his Honour’s opinion was not justified by the statutory language. His Honour expressed dissatisfaction with the result compelled by the dicta of the High Court saying (at [63]): “This seems to be unsatisfactory and deserving of consideration by the legislature, unless the High Court were to take a different view.”
Campbell JA would have construed the phrase “is a result of and is caused during” as a hendiadys (“a single idea expressed in two words with conjunction “and””: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, 2011 at [4.42]) emphasising the need for a causal connection rather than imposing two cumulative requirements. However the dicta in Allianz precluded such an interpretation. He agreed with the other judges that the plaintiff’s accident was not “during” the collision.
On 12 March 2010 the High Court granted special leave to appeal from the decision in Zotti: see [2010] HCA Trans 62. However the appeal was never heard because it was discontinued by the parties in July or August 2010: see [2010] HCAB 7.
Although the reasons for discontinuance are not disclosed, it would not be hard to imagine why an institutional player such as the respondent to the appeal, which was the beneficiary of a 5-0 decision of the New South Wales Court of Appeal might be able to reach some accommodation with an appellant who had just been granted special leave but who had no broader interest than the pecuniary outcome of his case.
However, that was not all that happened after the decision of the Court of Appeal. The New South Wales legislature appeared to agree with the expression of dissatisfaction reflected in the decision of Hodgson JA. The Motor Accidents Compensation Amendment Act 2010 amended the Motor Accidents Compensation Act 1999 by adding to the definition of “motor accident” an additional paragraph:
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
In other words, it was an amendment targeted at just the sort of situation illustrated by the facts in Zotti.
The Second Reading Speech identifies that this provision was introduced specifically to deal with the decision in Zotti. The Minister said:
The decision in the Zotti case results in two unsatisfactory outcomes. Firstly, the injured cyclist was not entitled to recover compensation from the compulsory third party scheme for his injuries. Secondly, the motor vehicle driver was not covered by his Green Slip insurance policy and could face the possibility of being personally liable to pay compensation.
Indeed the Court of Appeal also thought that this was an unsatisfactory situation deserving of consideration by the legislature.
The Government has heeded the Court’s call and proposes to amend the definition of “motor accident” in the Motor Accident Compensation Act to extend the cover provided by the compulsory third party policy to explicitly include coverage of incidents and accidents that occur as a result of a dangerous situation caused by the driving of a motor vehicle, a collision, action taken to avoid a collision or any vehicle running out of control.
Common sense would dictate that any situation caused by a road accident that then results in an injury to another road user must be a dangerous situation and should be included in the definition of a motor accident for the purpose of the motor accidents scheme.
Interestingly, the transitional provision allowed the newly amended provision to apply to accidents that occurred before the amendment. It provided that the amended definition extended to an incident or accident that occurred on or after 1 October 2006 but not so as to affect any compromise or settlement of a claim or any decision made by a court before the date of assent to the amending Act. Notwithstanding the transitional provision, the new provision would not have covered the actual situation in Zotti because the accident in question occurred on 19 December 2005.
In terms of deciding the present case, the use which can be made of the decision in Zotti is limited. That is because the decision is based on the subtleties of the very specific statutory wording of a different legislature which had been subject to the “seriously considered dicta” of the High Court. As Brennan J said in Accident Compensation Commission v CE Heath (1994) 68 ALJR 525 at 526; 121 ALR 417 at 420: “There is, of course, no substitute for the statutory text.” While it may well be that the ACT Road Transport (Third-Party Insurance) Act 2008 embodies a generally similar test to that contained in the New South Wales legislation, it would be unwise, without more, to make any assumption that there is a single test intended by the legislatures or that results achieved by one statutory test should be achieved by a different statutory test in a different jurisdiction: Ilsley v Wattyl (1997) 144 ALR 510 at 513-514; Commissioner for ACT Revenue v Dataflex Pty Ltd (2011) ACTLR 271 at [31]. This Court is not required to follow the dicta of the High Court in Allianz because those dicta related to the very particular wording of the NSW legislation which is different from that here in question. In the present case, Zotti is a decision which is useful to illustrate some of the factual problems that arise depending upon how the scope of the definition is interpreted and, as I will explain below, provides some background to the enactment of the ACT provision, but cannot be more influential than that in interpreting the provision in question here.
Background to the Road Transport (Third-PartyInsurance) Act 2008
Prior to the Road Transport (Third-Party Insurance) Act 2008 the provisions for third-party insurance were contained within the Road Transport (General) Act 1999. Under that Act, a third-party insurance policy insured the owner of a motor vehicle “against liability in relation to the death of, or bodily injury to, a person caused by, or arising out of the use of, the vehicle anywhere in Australia (whether or not on a road or road related area)”. The important expression in determining the breadth of this liability was “caused by, or arising out of the use of the vehicle”. What constitutes a liability “arising out of the use of” a motor vehicle had, prior to the enactment of the Road Transport (Third-Party Insurance) Act 2008 a significant jurisprudential history: see Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80; Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437; Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374; State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500; Commercial Building Centre Pty Ltd v NRMA Insurance Ltd (2004) 40 MVR 370. The phrase was construed in a manner that did not require the use of the vehicle to involve any actual locomotion.
In South Australia, the legislative concern at the “very expansive interpretation” given to the phrase “arising out of the use of a motor vehicle” led to the amendment of the Motor Vehicles Act 1959 (SA) in 1986. The amendment inserted a provision that provided that an injury would “not be regarded as being caused by or arising out of the use of a motor vehicle if it is not a consequence of ... the driving of the vehicle, ... the parking of the vehicle; or ... the vehicle running out of control”: see Motor Vehicles Act Amendment Act (No4) 1986 (SA) which inserted s 99(3) into that Act; Parliamentary Debates (SA), Legislative Council, 27 November 1986, at 2411. The provision was subsequently amended to expand cover under the policy to ensure that the cover applied in circumstances where a cyclist ran into the open door of a stationary vehicle: Motor Vehicles Act Amendment Act 1988 (SA); Parliamentary Debates (SA), Legislative Council, 3 March 1988, at 3285. The terms of the Act as at 1995 are set out in Zotti at [99].
Although the expansive interpretation given to the phrase “arising out of the use of” had been earlier recognised by the Parliament of South Australia, it was clearly illustrated by the decision of the High Court in Dickinson in 1987. That was a decision on appeal from the Supreme Court of Western Australia. It was sufficiently broad to provoke a legislative response in Western Australia. In that case a father drove to the shops with his two young children in the back of the car. He left the car temporarily while shopping. The elder of the two children played with a box of matches that he found in the car. A floor mat caught alight and the fire spread, severely burning the younger child. The High Court unanimously held that the injuries arose out of the use of the vehicle. The occupation of the motor car by passengers whilst the car was stationary and the driver was absent was a use of the motor vehicle within the meaning of the relevant Act.
The decision of the Court received a swift response in the Western Australian Parliament. Amending legislation was introduced on 12 November 1987 so as to avoid the full consequences of the decision in Dickinson. Those amendments deleted references to liability arising out of the use of a motor vehicle and inserted a provision which provided that death or bodily injury was not to be taken to have been caused by a vehicle if it was not a consequence of the driving of the vehicle or of the vehicle running out of control. The inserted provision adopted the same structure as had earlier been adopted in South Australia. The effect of those legislative changes was considered by the High Court in Insurance Commission (WA) v Container Handlers (2004) 218 CLR 89.
There were also legislative changes made in Queensland and New South Wales. In those two States, like the ACT, third-party insurance is privately underwritten: see Hansard, 22 November 2007 at 3691.
The Motor Vehicles Insurance Act 1936 (Qld) had provided coverage where the accident occurred “by, through or in connection with” a motor vehicle. In 1988 this was amended so as to limit the definition of accidental bodily injury so that it was required to be “a consequence of –
(a) the driving of a motor vehicle;
(b) a collision, or action to avoid a collision, with a motor vehicle when stationary;
(c) a motor vehicle running out of control; or
(d) a defect in a motor vehicle.”
It was also amended so as to exclude liability where there was an entitlement to compensation under the relevant workers compensation legislation. It is notable that, the Queensland provision built on the model provided by the Western Australian provision which identified particular aspects of the use of the motor vehicle which might give rise to liability (driving of the vehicle or the vehicle running out of control), adding to the circumstances identified in the Western Australian provision, collisions and defects in the motor vehicle.
Those limitations were then picked up when the 1936 Act was replaced by the Motor Accident Insurance Act1994 (Qld). The provisions of the latter Act were considered in Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Australia Ltd [2000] 2 Qd R 682 which also discussed (at [8]) the legislative intention behind the 1988 amending Act.
The history of legislative change in New South Wales is described in the judgment of Campbell JA in Zotti. Amendments were made in 1995 which were intended to amend the definition of injury to adopt “an approach similar to that taken in Queensland, South Australia and Western Australia, where “injury” is qualified in terms of its cause.” The definition included was in the same terms as that now found in the Motor Accidents Compensation Act1999 (NSW) considered in Zotti.
Pausing here, what can be seen is that legislatures in Australia have taken steps to limit the coverage of CTP insurance so as to require a more direct connection between what is generally understood to be a motor vehicle accident and the injury than would be required by a general connecting phrase such as “caused by, or arising out of” or “by, through or in connection with” a motor vehicle. While the South Australian, Western Australian, Queensland and New South Wales legislation has listed the qualifying activities which must be involved so as to be within the schemes, the precise wording of the provisions varies from State to State.
When the Road Transport (Third-Party Insurance) Bill 2007 was introduced in the Legislative Assembly the Explanatory Statement said:
The current CTP scheme in place in the ACT has not changed significantly since 1948. The new legislation is expected to bring about cost savings flowing through to CTP premiums, without diminishing the compensation available for negligently injured persons. The legislation will also remove barriers to competition and give insurance companies clear guidelines for providing CTP insurance in the ACT, which should now give consumers a choice of provider.
In relation to the definition of motor accident the relevant part of the Statement said:
Clauses 6 to 8 define personal injury, motor accident, injured person and the use of a motor vehicle. The aim of these definitions is to link more closely to the principle that compensation under this statutory scheme should only arise if the personal injury derives directly from an accident that reflects the insured risk.
In the Minister’s Presentation Speech on 22 November 2007, reference is made to the provisions of Chapter 2 of the Bill. Chapter 2 contained clause 21 (now s 21) which defined the scope of the insurance provided by a CTP policy by reference to the defined term “motor accident”. The Minister said (at 3691-3692):
This bill does three fundamental things, and in doing so draws upon the most modern statutory provisions available:
·Chapter 2 of the bill, derived from the equivalent New South Wales and Queensland provisions, establishes a new basic structure for the CTP scheme, including provisions regulating CTP insurance premiums that are very familiar to the seven insurers selling CTP in New South Wales, six of whom also offer CTP insurance in Queensland.
…
The references both to the specific intention of clauses 6, 7 and 8 as well as the provisions of chapter 2 being “derived from” the New South Wales and Queensland provisions are matters which may be taken into account in working out the meaning of s 7 of the Act: Legislation Act2001 s 142. Having regard to the amendments made in New South Wales and Queensland and the pre-existing state of the law in the Australian Capital Territory, it can be seen that the change which was occurring in the Territory was one from a very broad connecting phrase (“caused by, or arising out of the use of”) to a definition which tied liability to more specific aspects of the use or operation of a motor vehicle.
Consideration and conclusion
Reading the statutory provisions by themselves would indicate that the issue is a finely balanced one. However, when one has regard to the whole of the Act, the pre-existing state of the law and the extrinsic material which I have referred to above, it is clear that the appropriate interpretation is one that does not require that the injury referred to in paragraph (b) occur at the same time as one or more of the activities in (c).
The relationship between paragraph (b) and paragraph (c) is that paragraph (c) is a requirement for the existence of an incident. The incident “happens when” one or more of the things in paragraph (c) occurs. The activities in paragraph (c) must form part of the incident. The injury referred to in paragraph (b), on the other hand, is not expressly required to form part of the incident. The link between the incident and the injury is that the incident must “cause” the personal injury. That is different from saying that the incident must “involve” the personal injury, a connection which would necessarily suggest that the injury must be part of the incident. Similarly, it is different from the New South Wales provision which requires that the injury is “caused during”, once again requiring the time of the injury to coincide with the time of the event in paragraph (c).
In one sense, the reference to incident causing the injury repeats what is in s 21, which defines the scope of the coverage under the policy. However, paragraph (b) is included in s 7 in order to provide a definition of “injured person”. The term “injured person” is an important concept in the Act and is picked up later in the Act: see s 22, 69, 70, 72, 78, 97, 118, 122 and 135. Thus, the inclusion of paragraph (b) can be explained by reasons other than a desire to temporally limit the injuries to those which occur during the events in paragraph (c).
It would go beyond the legislative purpose as expressed in explanatory material and as may be gleaned by the pre-existing state of the law to interpret the word “when” in paragraph (c) of the definition of “motor accident” as qualifying paragraph (b) so that only personal injury suffered during the actual occurrence of the matters referred to in (c)(i)-(iv). When seen in light of the state of the pre-existing law, the requirements in paragraph (c) in combination with the requirements of s 8 can be seen as simply requiring a more direct connection than phrase that existed under the Road Transport (General) Act 1999.
The situations where the interpretation propounded by the plaintiff would “bite” are where the injured person is not another driver, is not collided with and does not take action to avoid colliding with the motor vehicle. Cyclists and bystanders who are injured after the events listed in paragraph (c) are the most obvious examples. Where the injured person is the driver of another vehicle it is likely that the cause of the injury to the innocent party will itself be a motor accident and hence liability may be able to attributed to the negligent driver even though the injury does not arise in the same motor accident as involved the insured negligent driver. In that respect the different wording between the New South Wales and ACT provisions is significant because the ACT provisions do not make it clear that the references to the vehicle in paragraph (c) are references to the insured driver’s vehicle as opposed to the innocent party’s vehicle.
However in relation to the situation of cyclists or bystanders whose injuries are caused by an incident involving the activities referred to in paragraph (c) but not during the continuation of those activities, the interpretation contended for by the plaintiff would have the effect of significantly narrowing the scope of the protection given by CTP insurance not only to persons injured as a consequence of a motor accident but also to the drivers who are at fault. To adopt the example given by Campbell JA in Zotti, if a vehicle ran out of control due to the fault of the driver and collided with someone’s house, so weakening it that a few minutes later part of the house collapsed and injured the occupant, that injury would not be sustained “when” something collided with a motor vehicle or when the motor vehicle ran out of control and hence, because of the temporal separation and notwithstanding a clear causal link, the CTP policy would not cover the negligent driver or be available to the injured party in the house. If that was the result of the legislation then I would adopt, as applicable to the ACT legislation, the comments of Campbell JA in Zotti (at [111]):
It is very hard to see what desirable policy objectives Parliament could have been seeking to achieve by denying cover in such situations, with the possible outcome that the injuries go uncompensated from any source. While one can readily accept that the CTP scheme is not intended to be a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle… providing compensation for injuries sustained as a consequence of the negligent driving of a motor vehicle where the injuries are sustained by someone other than the negligent driver seems to be at the core of its purpose.
In my view, s 7 requires that there be a causal link between the personal injury and the actions of the motor vehicle referred to in paragraph (c) but does not require that the injury is caused during the continuation of one or other of those actions. Therefore, in the present case, subject to the possibility that the debris that the first defendant collided with had been moved by police or someone else after the incident involving the second defendant’s vehicle, because there was a causal link between the personal injury suffered by the first defendant and the incident involving the second defendant’s vehicle which involved one or more of the activities in paragraph (c), the second defendant’s CTP insurance policy would respond to the first defendant’s claim even though the injury occurred some 40 minutes after the accident.
As a consequence, in my view it is not appropriate to make the declaration sought by the plaintiff and the appropriate order of the Court is that the application is dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 11 October 2013
Counsel for the plaintiff: J Pappas
Solicitors for the plaintiff: Moray & Agnew
Counsel for the first defendant: WL Sharwood
Solicitors for the first defendant: Maurice Blackburn
Counsel for the second defendant: R Markham
Solicitors for the second defendant: Minter Ellison
Date of hearing: 23 August 2013, 11 October 2013
Date of judgment: 11 October 2013
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