Leach v The Nominal Defendant

Case [2014] NSWCA 257

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257
Hearing dates:8 May 2014
Decision date: 06 August 2014
Before: McColl at [1], Gleeson JA at [77], Sackville AJA at [78]]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - motor vehicle accidents - where appellant passenger in Mitsubishi car - where Commodore car collided with Mitsubishi - where rear of Mitsubishi moved slightly to left - where appellant injured by gunshots then fired from Commodore into Mitsubishi - whether appellant's injuries caused by fault of driver of Commodore in the use or operation of that vehicle either during its driving or during a collision - s 3A Motor Accidents Compensation Act 1999 (NSW)
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accident Insurance Act 1994 (Qld)
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Compensation Amendment Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Trade Practices Act 1974 (Cth)
Transport Accident Act 1986 (Vic)
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Australian Casualty Co Limited v Federico [1986] HCA 32; (1986) 160 CLR 513
Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36
Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 ANZ Insurance Cases ¶61-643
Mani v Nominal Defendant [2002] QSC 152; [2003] 1 Qd R 248
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529
Nominal Defendant v Hawkins [2011] NSWCA 93
RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; (2013) 63 MVR 375
Ross v Transport Accident Commission [2000] VSC 112; (2000) 30 MVR 521
Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111
Texts Cited: Second Reading Speech, Motor Accidents Compensation Amendment Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006)
High Court Bulletin [2010] HCAB 7
Category:Principal judgment
Parties: Steven Leach - Appellant
The Nominal Defendant (QBE Insurance (Australia) Ltd) - Respondent
Representation: Counsel:
D R Campbell SC with D Hourigan - Appellant
A J Black SC - Respondent
Solicitors:
Beston Macken McManis - Appellant
Gillis Delaney Lawyers - Respondent
File Number(s):
Publication restriction:No
 Decision under appeal 
Date…

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AGLC
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257
Case
[2014] NSWCA 257
Decision Date

CaseChat Overview and Summary

In *Leach v The Nominal Defendant*, the appellant, a passenger in a Mitsubishi vehicle, suffered injuries from gunshots fired from a Commodore vehicle following a collision between the two cars. The appellant sought to recover damages from the Nominal Defendant, alleging that the injuries were caused by the fault of the driver of the Commodore in the use or operation of that vehicle, pursuant to s 3A of the *Motor Accidents Compensation Act 1999* (NSW). The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the appellant's injuries, sustained from the gunshots fired after the initial collision, were caused by the fault of the driver of the Commodore in the use or operation of that vehicle, either during its driving or during the collision itself. This required an examination of the causal link between the driver's actions and the subsequent shooting.

The Court of Appeal reasoned that the injuries caused by the gunshots were not a consequence of the negligent driving or the collision itself, but rather an independent act by the occupants of the Commodore. The court applied the principles of causation in tort law, finding that the chain of causation between the driver's fault in the use or operation of the Commodore and the appellant's injuries had been broken by the intervening criminal act of firing the gun. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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