Lawrence v National Transport Insurance Ltd

[1996] QCA 319

IN THE COURT OF APPEAL	[1996] QCA 319
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No. 278 of 1995
[Perriman v. Lawrence & Ors]
BETWEEN:

STANLEY LAWRENCE PERRIMAN

Plaintiff

AND:

TREVOR J. LAWRENCE AND JUDITH A. LAWRENCE

(Defendants) Respondents

AND:

NATIONAL TRANSPORT INSURANCE LTD

(Third Party) Appellant

Macrossan CJ
Derrington J

White J

Judgment delivered 30 August 1996

Judgment of the Court

APPEAL ALLOWED. ORDERS MADE BELOW SET ASIDE. DEFENDANT'S

CLAIM AGAINST THE THIRD PARTY DISMISSED WITH COSTS.

CATCHWORDS:	Insurance - Respondent liable in damages to Plaintiff for personal injury - Plaintiff struck by plywood falling inside Respondent's covered trailer - Respondent recovered below against Appellant insurer under commercial motor vehicle policy for indemnity against liability for damages - policy cover injury caused "by goods falling from the motor vehicle" - Whether plywood fell "from" the vehicle.
Counsel:	Mr S. Williams QC and Mr M. O'Sullivan for the Appellant Mr R. Myers for the Respondent
Solicitors:	Minter Ellison for the Appellant Clayton Utz as town agents for Lee Williams and Associates for the Respondent
Hearing date:	16 August 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 278 of 1995
Before:Macrossan CJ

Derrington J

White J

[Perriman v. Lawrence & Ors]

BETWEEN:

STANLEY LAWRENCE PERRIMAN

Plaintiff

AND:

TREVOR J. LAWRENCE AND JUDITH A. LAWRENCE

(Defendants) Respondents

AND:

NATIONAL TRANSPORT INSURANCE LTD

(Third Party) Appellant

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 30 August 1996

The above plaintiff successfully sued the defendants/respondents for damages for personal

injuries suffered when he was performing maintenance work inside the latters' covered trailer or

pantechnicon and was struck by a number of sheets of plywood that fell on him. They had been

leaning against the wall deepest within the trailer, that is, at its front end, where they were usually

kept when not in use as dividing partitions for the trailer's load. They were to be moved to another

place, still within the trailer, to permit the plaintiff access to the wall behind them. Consequently he

was completely within the trailer when they fell onto him and thence to the floor. Although in a sense

they fell away from the vehicle's wall against which they had been leaning, no part of them fell away

from the vehicle as a whole in any respect.

On the plaintiff's success in the action, the respondents, by third-party proceedings, successfully claimed against the appellant as their insurer under its Commercial Motor Vehicle Policy for indemnity against their liability for the plaintiff's damages. The appellant denies that the cover

extends to such a case, and appeals against the orders of the trial judge that it indemnify the

respondents and pay their costs.

The only feature of the cover that is relied on by the respondents is that referred to in the

policy as applying to liability for accidental bodily injury where it is caused "by goods falling from the

motor vehicle". It was also the only basis for the orders made by the learned trial judge.

The appellant tried to argue that in this context of insurance relating to a commercial

transport vehicle, "goods" must mean part of a commercial cargo carried by the vehicle. There is no

justification for this limitation on the general expression used by the appellant in its policy. Further,

even if there had been some such contextual influence, it could not have such a limiting result as to

exclude goods that were used as normal aids or equipment incidental to the commercial use of the

vehicle. The objects that injured the plaintiff were within that class.

The learned trial judge came to the conclusion that the expression, and particularly the word,

"from", required only that the point of departure for the fall of the goods should be some part of the

vehicle, which, he found, was the wall of the vehicle against which they were resting. He chose this

meaning in preference to the alternative that was advanced before him by the appellant, that is, that

an object could be said to fall from the vehicle only if its final resting place is away from the vehicle.

(T58/50) He felt, correctly with respect, that it would have applied in the present case if the plaintiff

had been standing outside the trailer and had been struck by a part of the falling plywood sheet,

even if it had then come to rest wholly or partly within the trailer. He saw no relevant distinction

between the two, and of course there was none, given the meaning attributed to "from" and his view

of what was referred to as the vehicle, as the object of that term.

However, with respect, the connotation of "from" in this context requires that there be some

separation or departure, and as the object of the preposition is the vehicle, not merely a part of it,

there must be some fall of the goods amounting to a departure or separation away from it. While

the Oxford English Dictionary does say that the word indicates a starting point, or a place or object that is left at a distance, this must be read in the sense of separation or departure, which is the

common concept running through the various meanings provided.

This is not in conflict with the reasoning of the learned trial judge. However, he held that

there could be a fall from the vehicle while the goods remained fully within it. With respect, this

does not identify accurately what it is from which the fall must originate. The object of that

expression as it is used in the policy is the vehicle. It follows that in order to conform with

formulation of the cover, there must be some departure or separation from the vehicle as a whole,

not merely a fall from one part of it to another. There is no departure or separation from it if the

article remains in it at all stages.

Giving the expression an appropriately liberal construction, it would be sufficient if part of the

goods were to fall away from the vehicle, even if the rest of it were to remain attached to or inside it,

for the injury would still have been caused by the thing so far as it fell from it. However, it is still

necessary that in some way the injury be caused by some separation of the item from the vehicle as

a whole.

Part of the problem has arisen because of the erroneous regard given to the final resting

place of the fallen object, rather than to its position at the time when the injury is done, which is

plainly the relevant time.

A suitable analogy may be drawn. If a person were to be injured by a shelf that falls from a

wall in an internal room of a house, in the ordinary meaning of the words it could not be said that

the injury was caused by the falling of the shelf from the house. While the wall would certainly be

part of the house, the expression connotes departure from the whole house.

Learned counsel for the respondents correctly argued that the words of the policy should be

given a liberal construction in favour of the insured. This does not assist his case for the rule does

not permit of a construction that the expression cannot bear. A correct example of the application

of a liberal construction has been made above. The liberal meaning must be one that the words may

properly bear.

He also argued that the cover should have fully complemented the insureds' motor vehicle

cover as they said in evidence they expected. However their unilateral expectations, uninspired by

any conduct or representation of the insurer, cannot affect the construction of the contract nor

provide any ground for rectification. The nature of the policy was not such as to suggest that it was

a catch-all for liability omitted from the compulsory motor vehicle insurance cover, for the cover was

expressly confined to four defined sets of circumstances leaving many other areas of potential

liability clearly outside the cover. Moreover, the omitted areas could have been covered by a

suitable general public risk policy.

In the result the appeal is upheld. It is ordered that the orders made below be set aside and

that the Defendants' claim against the Third Party be dismissed with costs.