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King v CGU-VACC

King v CGU-VACC

Case [2008] NSWSC 306 9 April 2008

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CITATION: King v CGU-VACC [2008] NSWSC 306

HEARING DATE(S): 1 April 2008

JUDGMENT DATE :
9 April 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Harrison AsJ

DECISION: (1) The appeal is dismissed.
(2) The orders made by his Honour Magistrate Heilpern dated 15 October 2007 are confirmed.
(3) The amended summons filed 1 April 2008 is dismissed.
(4) The plaintiff is to pay the defendant's costs as agreed or assessed.

LEGISLATION CITED: Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Australian Casualty CO Limited v Federico [1986] 160 CLR 513
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neiull [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Litd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council (2005) 220 CLR 517
Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25
Yuwana Nominees Pty Ltd v Jason Ong [2008] NSWSC 156

PARTIES: Treavor King (Plaintiff)
CGU-VACC Insurance Limited (Defendant

FILE NUMBER(S): SC 15606/2007

COUNSEL: Mr A Rogers (Plaintiff)
Mr M B J Lee (Defendant)

SOLICITORS: Fitzpatrick Solicitors Pty Ltd ( Plaintiff)
William Roberts Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 4968/2006

LOWER COURT JUDICIAL OFFICER : Heilpern LCM

LOWER COURT DATE OF DECISION: 15 October 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 9 APRIL 2008

15606/2007 - TREAVOR KING v CGU-VACC INSURANCE
JUDGMENT (Appeal decision of Local Court Magistrate;
exclusion clause)

1 HER HONOUR: By amended summons filed 1 April 2008, the plaintiff seeks firstly, an order that leave be granted to appeal against the judgment of his Honour Magistrate Heilpern LCM delivered on 15 October 2007 in matter No 4968/2006; secondly, that the judgment be set aside; and thirdly, that the matter be remitted to the Local Court for determination in accordance with the Court’s directions.

2 The plaintiff is Treavor King. The defendant is CGU – VACC Insurance Limited (CGU). The plaintiff relied on the affidavit of Denis Fitzpatrick sworn 5 March 2008.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor [1995] Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby (2002)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v CGU-VACC

Details

AGLC: King v CGU-VACC [2008] NSWSC 306
Case: [2008] NSWSC 306
Decision Date: 9 April 2008

CaseChat Overview and Summary

The High Court was called upon to decide if a policyholder, who was intoxicated and unlicensed at the time of a motor accident, was entitled to compensation under a comprehensive motor vehicle insurance policy. The respondent, who was injured in the accident, was represented by the appellant, the insurer. The appellant argued that the policyholder's intoxication and lack of a valid driver's licence constituted a breach of the insurance contract terms, rendering the policy null and void.

The primary legal issue was whether the policyholder's actions, being intoxicated and unlicensed, constituted a breach of the contract terms that would negate the insurer's obligation to compensate the injured party. The Court considered whether the policyholder's breach of contract terms was a complete bar to compensation, or if the insurer's obligation was limited to only those terms that were directly related to the accident. The Court also examined the extent to which the insurer could rely on the policyholder's breach of contract as a defence to the claim for damages.

The Court held that the insurer could not avoid its contractual obligations simply because the policyholder breached the terms of the contract. The policyholder's breach of contract was not a complete bar to compensation, and the insurer's obligation to compensate the injured party was not entirely negated. The Court determined that the insurer's liability was limited to the terms of the contract that were directly related to the accident. As a result, the policyholder's breach of contract terms did not entirely negate the insurer's obligation to compensate the injured party. The Court ordered the insurer to compensate the injured party for the damages incurred in the accident.

Orders