Jolly's Transport Services Pty Ltd v Symons
[2012] VCC 1252
•6 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION | Revised Not Restricted Suitable for Publication |
GENERAL DIVISION
Case No. CI-09-04302
| JOLLY'S TRANSPORT SERVICES PTY LTD | Plaintiff |
| v | |
| DEAN ALLAN SYMONS | First Defendant |
| and | |
| DAVID G PARSONS PTY LTD (ACN 073 103 894) | Second Defendant |
| and | |
| NTI LIMITED (ACN 000 746 109) | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2012 | |
DATE OF JUDGMENT: | 6 September 2012 | |
CASE MAY BE CITED AS: | Jolly's Transport Services Pty Ltd v Symons & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1252 | |
REASONS FOR JUDGMENT
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SUBJECT: INSURANCE
CATCHWORDS: Contract of insurance – exclusion clause – whether the driver of a truck had a level of experience driving a truck requiring a special licence – interpretation of the exclusion clause
CASES: Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
JUDGEMENT: paragraphs 8, 8A, 8B and 8C of the third defendant's Defence filed 18 April 2012 are struck out
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richardson | DLA Piper Australia |
| For the First Defendant | No appearance | No appearance |
| For the Second Defendant | No appearance | No appearance |
| For the Third Defendant | Mr P Lithgow | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff commenced a proceeding by writ against a number of parties. However, the proceeding before me was limited to the plaintiff (“Jolly’s”) and the third defendant, NTI Limited (“NTI”), and the interpretation of clause FE033 of a contract of insurance.
2 Mr J Richardson of counsel appeared for Jolly's, and Mr P Lithgow of counsel appeared for NTI.
3 The following evidence was adduced at the trial:
· Dean Allan Symons gave evidence and was cross-examined.
· Leading Constable Graham Kenneth Blair gave evidence and was cross-examined.
· Robert Frank Stibbard gave evidence and was cross-examined.
· The plaintiff tendered the following evidence:
§ National Transport Insurance Fleet Motor Policy: Exhibit A
§ Heavy vehicle driver’s license of Dean Allan Symons: Exhibit B
§ Witness statement of Dean Allan Symons dated 4 May 2012 with Exhibits DAS 1-8: Exhibit C
§ Witness statement of the Dean Allan Symons dated 17 August 2012 with Exhibit DAS 1: Exhibit D.
· The third defendant tendered the following evidence:
§ Witness statement of Leading Senior Constable Graham Kenneth Blair dated 24 July 2012: Exhibit 1
§ Witness statement of Robert Frank Stibbard dated 4 June 2012 together with attached interview: Exhibit 2
Background Facts
4 At the conclusion of the evidence, Mr Richardson and Mr Lithgow informed me that the real issue which fell for determination was the interpretation of clause FE033 of the contract of insurance. However, in order to understand where and why that clause comes into play, it is relevant to set out some of the facts.
5 On 28 January 2009, Mr Symons commenced employment with David G Parsons Pty Ltd (the second defendant) as a truck driver.
6 On the afternoon of 25 February 2009, Mr Symons drove a semitrailer from Melbourne to Adelaide, arriving at about 4.00 am. He dropped off the trailer, then went to his home, which was about 30 minutes away from the point where he dropped off the trailer. He was not due to commence working again until about 8.00 pm on 26 February 2009. At about 12.00 pm, he received a telephone call from a fleet controller who told him to pick up a trailer from a freight company in Adelaide. He was told to drive it to Monarto, which is about one hour out of Adelaide, and to pick up a load at about 2.00 pm at a Big W distribution centre, and then to drive to Melbourne.
7 Mr Symons had very little sleep. He tried to get a couple of hours’ sleep before recommencing work. He arrived with the trailer at the freight company at about 4:30 pm. There were delays, which resulted in him arriving at the Big W distribution centre at about 6.00 pm. He commenced the journey to Melbourne somewhere between 7.00 pm and 8.00 pm on 26 February 2009.
8 At about 11.00 pm on 26 February 2009, Mr Symons was driving in an easterly direction on the Western Highway near Nhill. He fell asleep or blacked out. He woke to find himself on the wrong side of the road heading towards an oncoming truck. A collision occurred. Mr Symons admitted that the incident occurred as a result of his negligence.[1]
[1]Exhibit C
9 Mr Symons suffered multiple injuries, for which he required surgical treatment and extensive hospital and rehabilitation treatment. It is unnecessary to recount the nature and extent of his injuries beyond that general description.
10 Mr Lithgow cross-examined Mr Symons at some length for the purpose of establishing not that the he had the appropriate licence to drive the truck he was driving at the time the incident occurred, but to establish that his level of experience in driving such a truck with that licence was minimal.
11 Mr Lithgow submitted that I should accept that the plaintiff had a certain level of experience in driving such a truck. Mr Richardson was content to accept the submissions made by Mr Lithgow, that the evidence reflected a certain level of driving experience.[2]
[2]Transcript 82-83
Mr Symons’ Licence
12 There was no issue that at the time when the incident occurred, Mr Symons was the holder of a Heavy Vehicle Driver Licence No. BL1318.[3] I was referred to a document issued by VicRoads which set out licence categories. In particular, I was referred to a “Heavy Combination licence” (“HC licence”) which permitted the holder to drive a prime mover or single semitrailer exceeding nine tonnes, or a rigid vehicle plus trailer greater than nine tonnes.
[3]Exhibit B
13 There was also no issue that Mr Symons obtained an HC licence on 29 November 2005 in Western Australia,[4] and was continuously in possession of such a licence up to the date when the incident occurred.
[4]Exhibit C – DAS 2
14 Mr Symons referred to his use of the HC licence with various employers in his first and second witness statements.[5] In his second witness statement, he attempted to estimate the proportion of time with certain employers that he drove trucks which required the driver to have an HC licence. Mr Lithgow challenged Mr Symons’ estimates, and submitted that I should accept that he drove trucks requiring the driver to have an HC licence for lesser periods. Mr Richardson submitted that the plaintiff was prepared to accept that the first defendant drove a truck requiring an HC licence as follows:[6]
[5]Exhibit C and D
[6]Transcript 82-83, and consistent with the submissions made by Mr Lithgow regarding the evidence which I should accept
· From 11 May 2006 to 16 September 2006, he exclusively drove trucks requiring an HC licence with Toll Shipping Tasmania, a period of just over four months.
· From about 23 October 2006 to 22 December 2007, he was employed by Toll Tasmania, a period of about fourteen months. He drove trucks requiring an HC licence on two or three weekends.
· From 18 February 2008 to 30 September 2008, he was employed by Northern Kope Parcel Express, a period of about seven months. He drove trucks requiring an HC licence about half the time he was on the road.
· From 2 October 2008 to about 17 January 2009, he was employed by Bunkers Freight Line South Australia, a period of about two and half months. He drove trucks requiring an HC licence about half the time he was on the road.
· From 28 January 2009 until the occurrence of the incident on 26 February 2009, he was employed by David G Parsons Pty Ltd (the second defendant). He drove trucks requiring an HC licence about half the time he was on the road.
Clause FEO33
15 The relevant clause is in the following terms:
“FEO33 - RESTRICTED AGE EXPERIENCE (Over 10 tonne carrying capacity Motor Vehicle, or Bus or Coach)
All cover provided by this policy shall be void whilst any Motor Vehicle as described above, is being driven by and/or in the charge of any person who is;
…
(2) over 25 years of age having less than two (2) years driving experience for that licence qualification necessary for the class of Motor Vehicle the subject of the claim.”
16 There was no issue that Mr Symons was born on 8 May 1968. At the time when the incident occurred he was forty years of age. He obtained the HC licence on 29 November 2005. Therefore, he was over twenty-five years of age when the incident occurred and had been in possession of the HC licence for over two years.
17 Mr Lithgow submitted that Mr Symons did not have the requisite degree of experience required by the clause. He submitted:
“We would say that you've really got to get to two years. Not nearly two years, or not working for an employer and driving on three weekends over a period of 15 months, that doesn't count. That is 15 months of experience simply because you're working for an employer that has heavy vehicles and you might have occasionally driven heavy vehicles during that period of time. We say, however you add it up, you can't get to 24 months, which would be considered experience driving vehicles that required an HC licence … .”
18 In Darlington Futures Ltd v Delco Australia Pty Ltd,[7] the High Court gave the following guidance relevant to the interpretation of exclusion clauses:
[7](1986) 161 CLR 500
“Subsequently in Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd …, Windeyer J, though dissenting in result, stated … that the effect of an exclusion clause must be ‘resolved by construing the language that the parties used, read in its context and with any necessary implications based upon their presumed intention’. And later, in H & E Van Der Sterren v Cibernetics (Holdings) Pty Ltd …, Walsh J, with whom Barwick CJ and Kitto J agreed, said … :
‘The terms of exception clauses must sometimes be read down if they cannot be applied literally without creating an absurdity or defeating the main object of the contract … But such a modification by implication of the language which the parties have used in an exception clause is not to be made unless it is necessary to give effect to what the parties must be understood to have intended.’
(see also Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd … .).
These decisions clearly establish that the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. … .”[8]
[8]at 510. I have omitted the footnotes from the quote.
19 Mr Lithgow’s submissions necessitate implying that “driving experience” is to be interpreted as meaning actually driving a truck requiring an HC licence for two years or more, or substantially so.
20 I think to interpret the words “driving experience” in that way is to ignore the proven facts. Firstly, Mr Symons obtained an HC licence. He obtained it because he was able to satisfy the requirements for the grant of such a licence. That, of itself, speaks of experience in driving trucks requiring such a licence. Secondly, the experience he had, which enabled him to obtain the grant of such a licence, was exploited by him with several employers on the occasions when he was assigned the task of driving a truck which required him to have such a licence. Thirdly, on each occasion he drove a truck requiring such a licence, he did so because he had the level of experience just referred to, and no doubt on each occasion on which he drove, his experience increased.
21 Mr Richardson expended some effort in demonstrating why Mr Lithgow’s submission was untenable. He referred to the licensing requirements which must be completed in order for an applicant to obtain the grant of a pilot’s licence and a driver's licence. Each requires the applicant to undertake hours of flying/driving as a prelude to sitting a licence test in order to demonstrate experience. He submitted that Mr Lithgow was seeking to imply a similar regime as being necessary to demonstrate that Mr Symons had the requisite degree of “driving experience” at the time when the incident occurred.
22 It is of importance to note that Mr Lithgow did not attack Mr Symons’ skill or competence as a driver capable of driving trucks requiring an HC licence. There is nothing in the evidence to suggest that when Mr Symons was called upon to drive such a truck that he was in some manner unable to. The inference I draw is that he was experienced to the extent that he was competent on the occasions when he was called upon to drive such trucks.
23 In the end result, the words “driving experience” in their natural and ordinary meaning amount to no more than the holder of an HC licence having experience in driving trucks sufficient to obtain a licence in the first place, and sufficient exposure to trucks requiring such a licence to obtain an acceptable level of competence in driving such trucks. It is clear enough to me that after obtaining that licence and holding that licence for over three years, Mr Symons had an acceptable level of competence in driving such trucks, demonstrated by him when he drove such trucks on the occasions referred to in paragraph 14 above.
Conclusion
24 In the circumstances, I conclude that there is no merit in the Defence pleaded by the third defendant, and I propose to order that paragraphs 8, 8A, 8B and 8C of the third defendant's Defence filed 18 April 2012 be struck out.
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