Insurers Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) v NSW Insurance Ministerial Corporation (formerly GIO of NSW)

[1993] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 1992

B e t w e e n -

INSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LIMITED (In Liquidation)

Applicant

and

GOVERNMENT INSURANCE OFFICE OF

NEW SOUTH WALES

Respondent

Application for special leave

to appeal

DEANE J

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TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 10.22 AM

Copyright in the High Court of Australia

MR P.J. DEAKIN, QC: If the Court pleases, I appear for the

applicant with my learned friend, MS L.P. McPHEE.

(instructed by Hunt & Hunt)

MR M.J. NEIL, QC:  May it please the Court, I appear with my

learned friend, MR H.J. MATER, for the respondent.

(instructed by G.M. Meadows, Solicitor for the NSW

Insurance Ministerial Corporation (formerly GIO of

New South Wales))

DEANE J:  Mr Deakin.

MR DEAKIN:  Your Honour, just one housekeeping matter. I do

not think it will arise for Your Honours'

consideration but, for the record, the notice of

appeal before the Court of Appeal, which is

reproduced at pages 24 and 25 of the application

book is not, in fact, the notice of appeal which
the court determined. Could we hand to

Your Honours appropriate copies of the amended

notice of appeal which was the document which was

the subject of the Court of Appeal's decision.

Your Honours, the only issue that has ever

been litigated in these proceedings is an issue of

whether or not the injuries sustained by Mr Stevens

on 6 October 1984 were caused by or arose out of

the use of the vehicle which he had been provided

by his employer.

GAUDRON J:  And that is a question of fact.

MR DEAKIN: Yes, it is, indeed, Your Honour. That is very

much a question of fact which would not ordinarily
attract the attention of this Court on a special

leave application. But, Your Honours, the very

simple point that we wish to advance that takes it

out of the strict area of a question of fact and into the area of a matter of general importance,

and the principle which it involved in the case,

can be expressed in one of two ways: firstly,

whether a finding that the use of a motor vehicle

has ceased at the time when injuries are sustained

precludes a finding that such injuries were caused

by or, perhaps more relevantly, arose out of the

use of such a vehicle or, putting it the other way,

whether, in order to satisfy those words, in

particular, that the injuries arose out of the use
of the vehicle, it is necessary that the use be
still continuing at the time when the injuries are
sustained.

Now, Your Honours, we submit that the test as formulated by this Court in many authorities, last,

as we understand it, in the decision of the Full Court in Dickinson v The Motor Vehicle

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Insurance Trust, 163 CLR, is one which is expressed

in terms as to whether there is any causal or

consequential relationship between the use of the

vehicle and the injuries in question. That appears

in the joint judgment at page 505. That was not

the test that was applied in this case, and it was

not the method by which the issues in this case

were determined.

If the only issue had been whether or not the cleaning of the motor vehicle in this question was

a use of the vehicle, that would, we would concede,

be a question of fact that this Court would not be

troubled by on an application of this kind. But as

we will demonstrate, when we take Your Honours to

the judgment, what happened was that the issue

which was sought to be raised on behalf of the

present applicant, namely, that as a consequence of
prior use of the vehicle, the injuries did in fact

occur - - -

GAUDRON J:  But if you put your case exactly in that way,

then the finding that the use had ceased becomes a

very relevant question, does it not?

MR DEAKIN: It is a relevant question, yes, Your Honour.

But the manner in which the case was decided was that you cannot have a finding that the

consequences of the use of the vehicle continued in

a relevant sense to be said to have arisen out of

such a use that the injuries occurred when that use

ceases, and it was the finding that the use had

ceased which, on His Honour the trial judge's view,

adopted by the Court of Appeal, which precluded a

finding that the consequences continue. I have not

put that as precisely as I should. It was the

finding by the trial judge that the use had ceased

which the trial judge used to dispose of the

argument that had been advanced, namely, that it

was still a consequence of that prior use that the

injuries arose.

Now, it is the method by which that argument

was disposed of which we say is of general

importance because it means that a qualification to

the words used in the section has now been

introduced in New South Wales which has been

expressly rejected by a stream of authorities in

Victoria, and that qualification being that there

is now a temporal requirement needed to be proven

in all cases involving the use of a motor vehicle,

namely, that at the time that the injury is

sustained the use of the vehicle is still

continuing.

GAUDRON J: That is drawing something of a long bow from the

judgment to say that there is a temporal

Insurers 3 30/4/93

requirement in every case. Does it not all depend

on the particular facts of each particular case?

MR DEAKIN:  It is always a question of fact and the broad

and practical approach that this Court has, of

course, enunciated on numerous occasions means that

one is not entitled to take strict principles and

apply them without hesitation in all cases. They

are very much questions of fact.

DEANE J: But it does not follow, for example, that if in

this case the engine had exploded as a consequence

of it having been used, that your client would

necessarily have failed.

MR DEAKIN: Well, it does not follow, I accept that, yes,

Your Honour.

DEANE J:  Or that the result would necessarily have been the

same.

MR DEAKIN:  I accept that, but if this decision is to stand,

it stands for the proposition that a cessation of

use does, in ordinary circumstances, preclude a

finding that injuries arose out of such a use and

we submit that that is an incorrect view, a view

not supported by authority - - -

DEANE J: But when use is not a causal factor in the

injuries?

MR DEAKIN:  We accept, of course, Your Honour, that there

are two alternatives: "caused by" is a far more

limited concept and this case could not fit within the more direct requirements needed to satisfy the

words "caused by". That is the basis that we

submit the case has been dealt with but we say

erroneously. What this case has not properly

determined is the application of the alternative

words, namely, "injuries arising out of the use of

the vehicle." If the words were limited to "caused

by", then what Your Honour has put to me is correct

and this matter could not be raised before

Your Honours.

But could we just take Your Honour to the

argument which was put on behalf of the present

applicant before the trial judge? It appears at

page 13 in the book, and we say that it is

consistent with the approach of this Court in all

of the decisions that have been decided but, in

particular, the decision of the Full Court in

Dickinson's case. At line 9, Mr Kenny, who appeared on behalf of the cross claimant, the

present applicant, submitted this:

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That the requirement that the injury be

"caused by or arising out of the use of a

motor vehicle" was to be widely construed.

There can be no contest about that.

That it included an accident happening during cleaning in consequence of its use. That this was an ordinary question of fact. That in the instant case the plaintiff's activity of cleaning the truck resulting in his injury was

in consequence of its use resulting in the

impaction of insects and road grime and

accordingly the injury would be found to have

arisen out of the use of the truck.

Now, that was the way it was put, we submit,

correctly. The present respondent put a different

proposition, namely, one limited to - and this

appears on the very next page at line 15:

the only issue is whether the cleaning of the

semi-trailer was a use of the same within the

Act.

Now, His Honour decided and expressly upheld

that submission, namely, that - at the bottom of

page 21 and going over on to page 22 of the book:

Whilst the plaintiff's injury clearly

arose out of the cleaning of the truck, I am
not satisfied that cleaning the truck was
'using' it for the purposes of the Motor

Vehicle (Third Party Insurance) Act.

That incorporates an acceptance of the argument put

by the present respondent. But what His Honour

went on to say, which is the subject of our

complaint, is that:

In my view the plaintiff's 'relevant use'

of the motor vehicle had concluded when he

parked and locked it on the Friday afternoon.

I do not accept that it was continuing when he

arrived to clean the vehicle on the following

day because he was cleaning road grime and

insects which were adhering to the vehicle due

to its use during the proceeding week.

Now, Your Honours, there are two findings that

are made, one being that the injuries clearly arose
out of cleaning; the second being that the
requirement for the cleaning, namely, the build-up

of grime and insects, arose out of the use of the

vehicle because it had been used on interstate

trips where the build-up of insects was such that

it required them to be removed because otherwise

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the engine's performance was interfered with and

even it would stop if they were not removed.

Now, Your Honours, the only determination by His Honour of the issue raised by counsel,

Mr Kenny, at first instance, namely, that the

injuries were a consequence of the use, was

His Honour's determination that the use had

concluded and that it was not continuing at the

time of the accident. As Your Honours know, from

the appeal book, that approach was approved and

adopted by Mr Justice Cripps and the two other

members of the Court of Appeal in the words, "I

agree with the reasons of the learned trial judge",

and that was his ultimate conclusion.

With the exception of the passage on page 32,

that I will come to in a moment, that was the

decision of the Court of Appeal. So, Your Honours,

we submit it involves the acceptance of an argument

that the use of a vehicle having concluded, there

is no basis for any assertion or conclusion that

injuries arise out of such a use.

GAUDRON J:  But does that really say any more than that the

connection between the cleaning and the earlier use

is, in the circumstances, too tenuous to be seen as

arising out of?

MR DEAKIN: His Honour does not say that, Your Honour, with

respect. The argument was squarely put and the

only method by which it was dealt with was by

saying the use had ceased. If His Honour had said

anything such as what Your Honour has put to me,

namely, that there was some causal - or the

question had been posed in a way that suggested

whether there was any causal or consequential

relationship between the ultimate injuries and the

use, then, of course, we could have no objection to

it. But the argument was dealt with simply by

means of referring to a cessation of the use and,

we submit, that is contrary to all authority of

this Court and other courts; it is unwarranted by

any reasonable construction of the section and, as

we would seek to take Your Honours briefly to,

Victorian decisions which have expressly confirmed

the correct principle, namely, that it is a

question of fact and that the mere fact that use of

a vehicle has ceased, does not preclude a finding

that injuries, nevertheless, arise out of the use

of such a vehicle.

Could we hand to Your Honours some copies of Victorian decisions. On the very top of it

Your Honours will see the Dickinson case.

Insurers 6 30/4/93

GAUDRON J:  Do you rely on these for their correctness,

rather than for there being a conflict between

authorities, do you?

MR DEAKIN:  I am sorry, Your Honour, no, we very much rely

on the fact that the New South Wales Court of

Appeal, under this decision, adopting

Mr Justice Finlay's decision, stands for the

proposition we have put to Your Honour, and the

contrary proposition is well established in

Victoria and we say, therefore, this Court's

decision is required to resolve the conflict

between those two States.

GAUDRON J: Yes, because the Act on which the Victorian

decisions are based has been superseded, has it

not?

MR DEAKIN:  Yes, it has, Your Honour.

GAUDRON J: It has been repealed, in effect.

MR DEAKIN:	It has been repealed but there are still - we do have some of the legislative provisions here.
Your Honour, there is no doubt that the enactment, which is the subject of these decisions, is no
longer law in Victoria but, Your Honour, the question is whether that line of authority,
established in the principle that we have outlined,
should be allowed to stand without any interference from this Court when the New South Wales court has
come to the opposite view, as we submit to
Your Honour.

The first decision is Lamont v The Motor

Accident Board, (1983) VR 88, which includes two

other cases. The relevant decision, Your Honours,

which form part of the overall judgment of

Mr Justice Tadgell was in the matter of Jorgensen

because, in the other two cases there was someone

sitting in the parked motor vehicle; in the

Jorgensen case there was no one seated in the

vehicle and there was no evidence even as to how

long the vehicle had been parked at the side of the

road and the question was whether, for the purpose

of the Motor Accidents Act, which, of course, has

identical wording to the New South Wales

legislation, when there is a parked motor vehicle

on the side of the road and injuries arise as a

result of a collision with it, whether it can be said that it arose out of the use of that parked

motor vehicle.

The conclusion that His Honour arrived at is set out at page 95 at line 39. He refers to the

other decisions which were easier for him to arrive

at because they involved persons located within the

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vehicle but in the Jorgensen case there was no such

facts. His Honour said, line 39:

My conclusion expressed above was that his

collision with a motor car did not occur at a

time when the motor car was in use. That

might not be fatal to his claim, however, if

there were some prior use of the motor car out

of which his injuries could be said to have

arisen. It does not seem to me that injuries

must arise during the course of use of a motor
car in order to arise out of such use,

although that is of course what happened in

the cases of Lamont and Hodkinson.

He refers to the evidence that the vehicle had been

in use at the time it was parked, and he goes on to

say:

it had fairly obviously been purposely driven

there. It comes down, then, to a question

whether the fact that Jorgensen's accident and

injuries were respectively suffered and

sustained after, but not during, the use of a

motor car is sufficient to distinguish his

case from the cases of Lamont and Hodkinson.

In my opinion it is not sufficient. If it is

right to say that injuries need not occur

during the course of use of a motor car in
order to arise out of the use, there is really

very little material distinction between the

three cases.

And His Honour goes on to say that in those

circumstances he is satisfied that it does, for
relevant purposes, arise out of the use

notwithstanding the fact that the use was a prior

one.

That decision was expressly adopted and

applied by the Full Court in the next decision that

we have given to Your Honours, that being a	decision of Transport Accident Commission v
Hoffman, (1989) VR 197, and the relevant passage we would seek to take Your Honours to appears at
page 201 of the joint judgment of two members of the Court where Your Honours see the decision of Mr Justice Tadgell is set out. The passages I have
read to Your Honours appears from the foot of
page 201, over to page 202, and Their Honours
describe the decision as:

We also agree with Tadgell J's decision. We

see no reason why a past user of a motor car

should not be a user out of which injuries may

arise.

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I have given Your Honours the other cases. I do

not need to take Your Honours to State Insurance Office v Jura. It is a different provision, but

using the same words and adopting the same

approach. But could I take Your Honours briefly to

the last decision in the bundle, Transport Accident

Commission v.Road Construction Authority, (1990)

VR 989. It was a complicated case in that there

were three vehicles involved:  a truck, a trailer

and a machine loaded on to the trailer, and the

plaintiff was in fact injured lifting the tailgate

ramp attached to the trailer and there were a

number of questions as to whether it arose out of

use of the truck; out of the use of the trailer;

out of the use of the machine itself that had been

loaded on to the trailer. So, the facts,

obviously, are not going to be of any great

relevance to Your Honours. But it is the statement

which appears at page 993 of the judgment of the

Full Court, the last paragraph on.that page that we

would wish to refer Your Honours to:

Further, the injury may be regarded as

arising out of the past use which had been

made of the machine when it was driven up the

ramp.	It was because of that past use that
the ramp had to be lifted.	The injury was a

consequence of that past use or, in other words, there was a non-coincidental nexus

between that use and the injury: Transport

Accident Commission v Hoffman (1989) VR 197,

at pp.200-2.

The injury arose out of the use of the

machine.

So, Your Honours, we submit that there is that

clear line of authority in Victoria supporting the

proposition that we say is the correct proposition

that conflicts with the decision of

Mr Justice Finlay, adopted and approved of by the

Court of Appeal in this State, and we submit that	is a conflict which this Court should, in our
respectful submission, resolve. For those reasons,
we would submit that it is a matter in respect of
which special leave should be granted.

DEANE J: Thank you, Mr Deakin. The Court need not trouble

you, Mr Neil.

The Court considers that in all the

circumstances of this case, the actual decision of

the New South Wales Court of Appeal is not attended

by sufficient doubt to warrant a grant of special

leave to appeal. Accordingly, the application for

special leave is refused.

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MR NEIL:	I would ask for costs, Your Honour.
MR DEAKIN:	I have nothing to put, Your Honour.
DEANE J:	The application is refused with costs.

AT 10.42 AM THE MATTER WAS ADJOURNED SINE DIE

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