Kerr v Jensen

[1992] QCA 345

IN THE COURT OF APPEAL	[1992] QCA 345
SUPREME COURT OF QUEENSLAND	Appeal No. 96 of 1992
BETWEEN:

PAULA LOUISE KERR (by her next

friend DEBORAH LEIGH KERR)

(First Plaintiff)

AND:

DEBORAH LEIGH KERR

(Second Plaintiff)

AND:

RONALD ROBERT JENSEN

(First Defendant) Respondent

AND:

KATHLEEN DAWN JENSEN

(Second Defendant) Respondent

AND:

B.T. KERR

(First Third Party)

AND:

FIRE AND ALL RISKS INSURANCE COMPANY LIMITED

(Second Third Party) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 12th day of October 1992

On 9 August 1975 the first plaintiff, who was then only 14 months old, was severely burnt when an electric frypan containing hot fat or oil overturned on top of her. The accident occurred in the annexe of a caravan owned by the defendants (respondents), Mr and Mrs Jensen. The second third party, Fire and All Risks Insurance Company Limited, which is the appellant in this appeal, was the licensed insurer of the caravan under the Motor Vehicles Insurance Act 1936-1979. It appeals against a judgment against it for the sum of $198,274.80 on the basis that it was liable to indemnify the defendants against their liability to the plaintiffs (the second plaintiff being the first plaintiff's mother) for damages for negligence. The questions which arise on this appeal are the construction of s. 3(1) of the Act and its application to the facts of this case.

So far as it is relevant for present purposes, that sub- section provides:

"Subject to this Act, the owner of any motor vehicle shall at all times during the registration, or as the case may be, any renewal of the registration of such motor vehicle indemnify and keep indemnified the owner and every authorised agent of the owner by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer against all sums for which the owner or his estate or any such authorised agent or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such person, the owner himself) in any State or Territory of the Commonwealth of Australia where such injury is caused by, through, or in connection with such motor vehicle.

..."

The relevant facts may be shortly stated. The caravan was parked in a Main Roads camp at Kalarka about 90 miles south of Mackay. Beside it was a concrete apron over which there was a canvas awning attached by metal cleats or fasteners to the side of the caravan. This area was described in the evidence as an annexe and we will continue to use that term in these reasons. In the annexe was an old car seat used as a casual settee, a bed and a table. The table was approximately four feet long, three feet wide and two feet six inches high.

On the afternoon in question the Jensens were using an electric frypan on the table in the annexe to cook a roast dinner. The source of electric power for the frypan was a power point situated near the stove inside the caravan. An extension cord from that power point ran through the window of the caravan to the cord of the frypan. The caravan in turn obtained its electricity from a permanent supply source connected to the caravan on the side opposite to that on which the annexe was situated.

Whilst the meat was roasting in the frypan the first defendant was sitting in the annexe, either drinking or reading, and generally keeping an eye on the frypan. At that time his son, Roderick, who was approximately 18 months old, was playing outside the annexe with the first plaintiff's older sister, Kylie. The first plaintiff was nowhere in sight although the caravan in which her family was staying was nearby and it was common for the first plaintiff to be in or in the vicinity of the annexe.

After the meat was cooked Mrs Jensen took it out of the frypan and into the caravan and, although the electricity was switched off, the frypan remained on the table with the hot fat or oil still in it. Mrs Jensen intended to cook some vegetables in the frypan. She then called Mr Jensen into the caravan to help prepare the vegetables. After checking to see where Roderick and Kylie were playing, he entered the caravan. Shortly after this, and whilst both the defendants were in the caravan, the first plaintiff entered the annexe. No-one saw the accident occur. Mrs Jensen first noticed her one or two feet from the table with the frypan on her head. It seems likely however that she pulled or pushed the cord thereby causing the frypan to come off the table and overturn on top of her. The learned trial judge found that when she entered the annexe the extension cord, though still plugged into the power point in the caravan, was hanging down over the table in a position where she could reach it.

His Honour gave judgment for the plaintiff against the defendants for damages for negligence and for the defendants against the appellant third party pursuant to s. 3(1). No question arises on this appeal as to the correctness of the first of those judgments. Nor was there any dispute that the caravan was a motor vehicle for the purpose of s. 3(1).

As to the second, the questions are whether the defendants' liability was in respect of the motor vehicle and whether the plaintiff's injury was caused by, through or in connection with that motor vehicle.

As the joint judgment of Brennan, Deane and Gaudron JJ. in

Technical Products Pty Ltd v. State Government Insurance

Office (Q) (1989) 167 C.L.R. 45 at 47 points out, the first of these focuses upon the relationship between the relevant liability in damages and the vehicle whilst the second looks only to the relationship between the injury itself and the vehicle.

In order to identify what, if any, relationship there was between the motor vehicle, the caravan, and the act or omission which gave rise to the legal liability it is necessary first to identify that act or omission. The negligence which his Honour found caused the injury was the omission of leaving the frypan, containing as it did hot fat or oil, unguarded. For the appellant to be liable there must be some discernible and rational link between that omission and the caravan: Technical Products Pty Ltd at 47, 48.

It was argued for the appellant that there must be some discernible link between that omission and the caravan used or intended to be used as a motor vehicle or as a motor vehicle within the category "caravan trailer". The submission is said to be derived from s. 3(1), item 11(e) of the First Schedule to the regulations, regulations 3 and 4, and the Third, Fourth and Fifth Schedules. Section 3(1) refers to a "motor vehicle" and the regulations and First Schedule deal with various categories of motor vehicles, the caravan falling into the category of a "caravan trailer".

The submission is that, because the caravan was both immobile and unregistered at the time of the accident, it was not being used or intended to be used as a motor vehicle, namely a caravan trailer. The same argument was advanced with respect to the application of the phrase "by, through or in connection with that motor vehicle".

We reject that argument. There is no basis for implying into s. 3(1) any such limitation. If the caravan is a motor vehicle it is sufficient for the application of that section that the liability be in respect of the caravan and that the injury be caused by, thorough or in connection with the caravan. Furthermore, the course of authority is contrary to this submission. See for example Tonga v. John Holland (Construction) Pty Ltd [1988] 2 Qd.R. 587.

The discernible and rational link between the caravan and the omission was, according to the respondent, to be found in the following:

1.    The fact that the cooking being done in the frypan was part of the use of the caravan for one of its purposes as a motor vehicle, that is as a mobile home, and that that use contributed to the accident.

2.    The fact that features of and the configuration of the caravan contributed to the accident; those features and configuration were that the fat or oil in the frypan was heated by electricity supplied through the caravan and that the frypan was placed in the annexe, rather than in the caravan, because of the way in which the wind was blowing the curtains in the caravan.

3.   That the caravan and the frypan functioned as an integrated or composite unit; again the features of this were the physical connection between the two by means of the cord and the fact that the electricity for heating the fat or oil was supplied by means of this connection.

Each of these contentions involves some artificiality explicable, to some extent, by an attempt to fit the facts within phraseology used in some of the decided cases to explain the necessary connection. As to the first, it is not, we think, correct to say that cooking by means of a frypan connected by an extension cord passing through the window of the caravan to a power point in the caravan is part of the normal use of that caravan as a mobile home. It might have been otherwise if the cooking had taken place in the caravan.

As to the second, though features of the caravan may explain why the cooking took place where it did, it could not be said that either of the features mentioned contributed to the negligent omission which was leaving the frypan, containing as it did hot fat or oil, unguarded. They did not connect the caravan with that omission.

As to the third, it would be wrong, we think, to describe the caravan and the frypan as, in any sense, a composite or integrated unit. The connection by means of the extension cord was solely in order that the caravan might be the intermediate source of supply of electricity for the frypan; intermediate in the sense that the caravan was in turn connected to an exterior permanent supply source. But that connection in no sense integrated them or made them a composite unit.

Having rejected each of these contentions, we conclude that the defendants' liability was not in respect of the motor vehicle. It is unnecessary to determine whether their acceptance would have required a contrary conclusion. We should add that, in our opinion, the presence of the hazard constituted by the frypan containing hot fat or oil on the table could not be said to be in respect of the motor vehicle, nor do we think that the negligent omission constituted by the failure to supervise the hot frypan could be said to be in respect of the motor vehicle.

It is unnecessary therefore to consider whether the plaintiff's injury was caused by, through or in connection with the motor vehicle.

We would allow the appeal and substitute judgment for the second third party against the first and second defendants with costs of the action and of the appeal.

The respondent applied for an indemnity certificate pursuant to s. 15(1) Appeal Costs Fund Act 1973. However, this appeal did not involve a question of law. The applicable law was common ground between the parties and, in any event, well established. The appeal involved a determination of whether the facts which we have stated established the required discernible and rational link. That is a factual question.

The application must be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 96 of 1992
Mr Justice Pincus Mr Justice McPherson Mr Justice Davies
BETWEEN:

PAULA LOUISE KERR (by her next

friend DEBORAH LEIGH KERR)

(First Plaintiff)

AND:

DEBORAH LEIGH KERR

(Second Plaintiff)

AND:

RONALD ROBERT JENSEN

(First Defendant) Respondent

AND:

KATHLEEN DAWN JENSEN

(Second Defendant) Respondent

AND:

B.T. KERR

(First Third Party)

AND:

FIRE AND ALL RISKS INSURANCE COMPANY LIMITED

(Second Third Party) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 12th day of October 1992

MINUTES OF ORDER: Appeal allowed.

Judgment below for $198,274.80 for the first and second defendants against the second third party is set aside and in lieu there is judgment in the action for the second third party against the first and second defendants with costs of the action and the appeal.
Application for indemnity certificate
pursuant to s. 15(1) Appeal Costs Fund
Act refused.

CATCHWORDS:	INSURANCE - MOTOR VEHICLES - RISKS INSURED - Appellant held liable to indemnify respondents when child injured in annexe to respondents' caravan by hot oil in frypan - whether injury caused by, through or in connection with motor vehicle - whether link between leaving oil unguarded and caravan - whether caravan used as motor vehicle - MOTOR VEHICLES INSURANCE ACT 1936-1976 S. 3(1)
MOTOR VEHICLES - COMPULSORY INSURANCE - Appellant held liable to indemnify respondents when child injured in annexe to respondents' caravan - whether caravan not used as trailer a 'motor vehicle' - whether injury caused by, through or in connection with motor vehicle - whether rational link between cause of injury and caravan
Solicitors:	Clayton Utz for the Appellant Seymour Nulty t/a for Kingston & Stanton for the Respondents
Counsel:	Hanson Q.C. for the Appellant Hanger Q.C. with him Wensley for the Respondents

Date(s) of Hearing:16 September 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 96 of 1992
BETWEEN:

PAULA LOUISE KERR (by her next

friend DEBORAH LEIGH KERR)

(First Plaintiff)

AND:

DEBORAH LEIGH KERR

(Second Plaintiff)

AND:

RONALD ROBERT JENSEN

(First Defendant) Respondent

AND:

KATHLEEN DAWN JENSEN

(Second Defendant) Respondent

AND:

B.T. KERR

(First Third Party)

AND:

FIRE AND ALL RISKS INSURANCE COMPANY LIMITED

(Second Third Party) Appellant

__________________________________________________

__

PINCUS JA
MCPHERSON JA
DAVIES JA
__________________________________________________

__

Reasons for Judgment of the Court delivered the
12th day of October 1992
__________________________________________________

__

'APPEAL ALLOWED.
JUDGMENT BELOW FOR $198,274.80 FOR THE FIRST AND
SECOND DEFENDANTS AGAINST THE SECOND THIRD PARTY
IS SET ASIDE AND IN LIEU THERE IS JUDGMENT IN THE
ACTION FOR THE SECOND THIRD PARTY AGAINST THE
FIRST AND SECOND DEFENDANTS WITH COSTS OF THE
ACTION AND THE APPEAL.
APPLICATION FOR INDEMNITY CERTIFICATE PURSUANT TO
S. 15(1) APPEAL COSTS FUND ACT REFUSED.'