Martin v Hann - [2009] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARTIN v HANN & ORS
[2009] SADC 23
Judgment of His Honour Judge Muecke
12 March 2009
INSURANCE - GENERAL - POLICIES OF INSURANCE - CONSTRUCTION
INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES
Liability of third party insurers to indemnify third defendant where third defendant sued by plaintiff for injuries alleged to have occurred whilst the third defendant was unloading a trailer (not owned by him) which was attached to a prime mover owned by him - construction of insurance policy - meaning of "Motor Vehicle"; "Your Motor Vehicle"; "used in connection with Your occupation or business"; and "using" - third party insurers liable to indemnify third defendant.
Motor Vehicles Act 1959 s 99(3); Halsbury's Laws of England, Vol 25, 4th ed, 1994, referred to.
Heath v Corporation of City of Tea Tree Gully & Anor (1996) 66 SASR 548; Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437; Fawcett v BHP Bi Products Pty Ltd (1960) 104 CLR 80, considered.

MARTIN v HANN & ORS
[2009] SADC 23

On or about 11 December 2002 the plaintiff was assisting the third defendant to unload goods from a refrigerated semi-trailer in Kingston in the south-east of South Australia. The goods were consigned by the first and second defendants (“Hann’s Polar Transport”) who were carrying on a business at Albert Park in metropolitan Adelaide. The third defendant was engaged by Hann’s Polar Transport to deliver the consignment of goods from Adelaide on its behalf.
The semi-trailer comprised a Volvo prime mover registered no. WLB-670 and a refrigerated trailer registered no. TCZ-394. The prime mover was supplied by the third defendant and the refrigerated trailer was owned and supplied by Hann’s Polar Transport. Henceforth I shall refer to the prime mover as “the prime mover” and to the refrigerated trailer as “the trailer”. I am to decide the issue before me on the basis that at all relevant times the trailer was attached to the prime mover. Where I refer to “the semi-trailer” I am referring to the prime mover with the trailer attached.
The third defendant had driven the semi-trailer from Hann’s Polar Transport at Albert Park to Kingston. At Angas Street at Kingston the third defendant parked the semi-trailer. He opened the two full-length rear doors of the trailer in order to unload the goods contained within the trailer. The rear doors opened outwards on hinges at each side of the rear of the trailer. The third defendant climbed into the trailer to unload the goods. The plaintiff was standing on the roadway at the rear of the trailer receiving those goods from the third defendant. Whilst she was in that position, one of the rear doors of the trailer blew shut striking her forcefully on the back of her head. She suffered injuries as a result of being struck by the door of the trailer.
By summons issued on 2 December 2005 the plaintiff sued the first and second defendants who carried on business as Hann’s Polar Transport and in whose name the trailer was owned and supplied by Hann’s Polar Transport to the third defendant.
The plaintiff also sued the third defendant who had supplied the prime mover and who had driven the semi-trailer to Kingston from Adelaide for the purpose of delivering the goods that were in the trailer to Kingston. The plaintiff alleged that the accident that resulted in her being struck to the head and suffering injuries was caused by the negligence of Hann’s Polar Transport and the third defendant. She alleged that Hann’s Polar Transport was vicariously liable for the negligence of the third defendant in his use and operation of their trailer and in his delivery of the goods on their behalf. She sued the defendants by action in tort for damages for personal injuries.
Hann’s Polar Transport denied any vicarious liability for the negligence of the third defendant and alleged that the third defendant was an independent contractor. In addition, Hann’s Polar Transport alleged that the incident was caused solely as a result of the negligence of the third defendant and/or the plaintiff.
The third defendant denied that he was liable to the plaintiff for negligence and alleged that if the incident occurred it was caused solely as a result of the negligence of the plaintiff.
The third defendant filed a Third Party Statement of Claim on 16 October 2007. In that Statement of Claim he alleged that the third parties were at all material times insurers (“the third party insurers”) and had issued to him a policy of insurance numbered 08946100 (probably numbered 8946000) for the period from 17 May 2002 to 17 May 2003 (“the policy”). He alleged that the policy was in respect of his prime mover. He alleged that at the time of the incident involving the plaintiff the trailer was attached to his prime mover and that his actions in unloading the trailer amounted to the use of his prime mover within the meaning of the policy. He claimed that he was entitled to indemnity from the third party insurers pursuant to the policy in respect of any liability he might have to the plaintiff. He stated that the third party insurers had not accepted his claim pursuant to the policy.
The third party insurers filed a Defence to the Third Party Statement of Claim on 25 January 2008. They denied that the third defendant’s actions in unloading the trailer amounted to the use of the prime mover within the meaning of the policy. Whilst the third party insurers denied that the trailer was attached to the prime mover at the time of the incident I am to proceed, as indicated above, on the basis that it was.
The third party insurers further said that the trailer did not fall within the definition of “Your Motor Vehicle” “otherwise required by Section 2 of the Policy”. The third party insurers denied that the third defendant was entitled to be indemnified by them pursuant to the policy as alleged by the third defendant, or at all.
On 25 June 2008 a Master of this court ordered, in effect, that the liability of the third party to the third defendant be determined as a preliminary point.
I heard the preliminary point on 24 October 2008. Mr Swan, of counsel for the third party insurers, volunteered to be dux litis because he said that the preliminary point was “somewhat akin to a strike-out application”. He told me that there was an agreed book of documents but no agreed facts. He told me that I was to decide the issue before me on the basis of the allegations made by the plaintiff and on the documents in the agreed book of documents. That book was tendered by consent and became Exhibit TP1. That book was FDN 19 filed on 20 October 2008. Mr Swan told me that I should decide the matter on the basis that the prime mover was attached to the trailer at the time of the incident which the plaintiff alleged gave rise to injury and damage to her. He told me that I should decide the matter on the basis that it was agreed that pages 14 and 15 of Exhibit TP1 comprised the schedule to the policy, and in particular comprised the schedule referred to in the definition of “YOU, YOUR” at page 1 of the policy (page 3 of Exhibit TP1). Further, he told me that it was agreed that where “Endts 53” and “Endts 69” appear on page 15 they refer to endorsements to the policy that formed part of the policy. ENDT 69 appears on page 16 of Exhibit TP1. ENDT 53 was forwarded to me after I had reserved my decision. Both counsel made written submissions to me regarding endorsement 53. It is convenient here to refer to the document that both counsel forwarded to me after I had reserved my decision. The same document was forwarded to me by both counsel. It is headed “POLICY SCHEDULE” and is in a different form to pages 14 and 15 of Exhibit TP1. There are also some differences in content. The schedule sent to me by both counsel refers to a limit of liability under Section 2 of the policy. In lieu of the liability limit on the policy of $25m the limit on the “POLICY SCHEDULE” refers to a limit of $32.5m. Additional words appear with respect to endorsement 53 in the “POLICY SCHEDULE”. They are: “REFRIGERATED VEHICLE ENDORSEMENT (ARTICULATED)”. No such words appear in the schedule at pages 14 and 15 of Exhibit TP1.
The policy is a Commercial Motor Vehicle Policy. The policy, together with the schedule, endorsements …, sets out the agreement between the parties to it, and all of them form part of the insurance and are to be read together as if they are one (Introduction to the policy). One party to it is the Client (or any of them) named on the schedule. The third defendant is one of the persons named on the schedule as the Client. The Clients’ base of operation was Morphett Vale. The other party to the policy is the third party insurers. The agreement between the third defendant and the third party insurers is that the third party insurers “agree to provide indemnity in respect of any Motor Vehicle described in the Schedule against … liability as hereafter mentioned arising out of an Accident …”. There are four provisos. The fourth is that “Your Motor Vehicle is being used in connection with Your occupation or business …”.
The legal liability section is Section 2. It provides:
SECTION 2 – LEGAL LIABILITY
Where Your Motor Vehicle (other than a Motor Vehicle described in the Schedule as a Class 9a,9b,9d) is unregistered, then this entire Section 2 following does not apply.
(a)    We will pay any amount up to a liability limit of $25,000,000 in total for any number of claims arising out of one event, which You are held legally responsible to pay as a result of an accident, for damages in respect of:
(A)     Bodily injury (fatal or non-fatal) to Another Person
(B)    Damage to property of Another Person
If caused:
(1)    by You using Your Motor Vehicle; or
(2)    by and during loading or unloading merchandise onto or off Your Motor Vehicle direct to or from a fixed place of rest beside Your Motor Vehicle; or
(3)    by merchandise or equipment / components of Your Motor Vehicle, falling on / in or from Your Motor Vehicle
Section 2 contains other provisions. Included is the following:
(b)     We will not pay:
(1)    if the property damaged belong to You
(2)    if the property damaged is in Your physical or legal control. Provided however that We will pay up to $50,000 any one Accident where such property damage is to property leased or rented by You as Your business premises.
…
(4)    For any claim in respect of which insurance is required according to law.
The policy contains the following definition:
Motor Vehicle
Means- a mechanically-propelled vehicle designed for use on land only, but not a tramway or railway vehicle that is designed to run on rails, or a motorcycle.
-a trailer
-a non-motorised machine or implement
The question for determination by me is whether or not the third party insurers are obliged to indemnify the third defendant pursuant to the policy for any liability the third defendant may have to the plaintiff. That question is to be determined by me on the basis of the matters already set out.
I have concluded that the third defendant is entitled to indemnity from the third party insurers pursuant to the policy for the reasons that follow.
By the policy the third party insurers agreed to provide indemnity to the third defendant “in respect of any Motor Vehicle described in the Schedule against liability … arising out of an Accident”, provided that “Your Motor Vehicle is being used in connection with Your occupation or business” (my underlining). “Motor Vehicle” is defined as meaning a mechanically-propelled vehicle designed for use on land only. It is also defined as meaning a trailer. That means that both a prime mover and a trailer (separately) fall within the definition.
The schedule to the policy, which forms part of the policy refers, on the page headed ‘MOTOR SCHEDULE INQUIRY”, to:
1. 1995 VOLVO FH12 PRIME MOVER
2. TRAILER IN CONTROL
The schedule refers to these separately. They are two separate “Motor Vehicles” as defined by the policy. The agreement clause refers to indemnity being provided in respect of any of these two “Motor Vehicles” “described in the Schedule”.
The schedule indicates that the prime mover is insured for the sum of $90,000 and the trailer in control is insured for the sum of $50,000. It indicates that the prime mover had a registration no. WLB-670 and it is otherwise identified by a VIN number and an engine number. It was probably under finance from Westpac Banking Corporation. The premium for the prime mover is $2,785.76. There is an endorsement (53) in respect of the prime mover, and there is an excess of $900.
The schedule shows no registration number, no VIN number and no engine or serial number for the “Trailer in Control”. The premium to be payable in respect of the trailer in control is the sum of $2,273.93. There is an endorsement (69) in respect of the trailer in control, and there is an excess of $2,500.
The schedule also indicates, on the page headed “POLICY INQUIRY”, that the class (of vehicle) concerned is “MV MOTOR VEHICLE”, the number of items are “2” and the sum insured is “$140,000”. This is the sum of the sums insured in respect of separately the prime mover and the trailer in control. The schedule also indicates that the premium is $5,059.69. This is approximately the sum of the two premiums for the prime mover and trailer in control on that part of the schedule headed “MOTOR SCHEDULE INQUIRY”.
It appears therefore that the “MOTOR VEHICLE” on that part of the schedule headed “POLICY INQUIRY” consists of two items and the sum insured in respect of those items is $140,000. It appears that the other part of the schedule headed “MOTOR SCHEDULE INQUIRY” sets out the two items that comprise the motor vehicle in the other part of the schedule. Those two items are the prime mover, and a trailer in control. The third defendant paid a premium based on the total of the premiums attributed to each of the two items.
By the policy the third party insurers agree to provide indemnity in respect of any Motor Vehicle described in the Schedule against liability arising out of an accident provided “Your Motor Vehicle is being used in connection with your occupation or business”. The third party insurers agree to pay any amount, up to a liability of $25,000,000 in total, for any number of claims arising out of one event for which the third defendant is held legally responsible to pay as a result of an accident, for damages in respect of bodily injury to another person if caused by the third defendant using “Your Motor Vehicle”, or during loading or unloading merchandise onto or off “Your Motor Vehicle” direct to or from a fixed place of rest beside “Your Motor Vehicle”.
In both the agreement to provide indemnity and in the event giving rise to the third party insurers’ liability, reference is made in the policy to “Your Motor Vehicle”. That vehicle (and there is an issue about how “Your Motor Vehicle” should be construed) must be being “used” by the third defendant (Section 2(a)(A)(1)), and be being used in connection with the third defendant’s occupation or business (The Agreement clause, proviso 4). It is important, however, to note that in the agreement clause to provide indemnity the policy refers to doing so in respect of any by the “Motor Vehicles” described in the schedule. The schedule refers to two vehicles. The prime mover and a trailer in control are separately set out on the schedule headed “MOTOR SCHEDULE INQUIRY”, and that part of the schedule headed “POLICY INQUIRY” refers to a “motor vehicle” comprising two items. Those two items must be the prime mover with a particular registration number, and a trailer in control with no identifying feature. (The inference about the two items is reinforced by the “POLICY SCHEDULE” sent to me by both counsel.)
In the Defence to the Third Party Statement of Claim the third party insurers state that the trailer involved in the plaintiff’s incident does not fall within the definition of “Your Motor Vehicle” “otherwise required by Section 2 of the Policy”.
“Your Motor Vehicle” is not defined in the policy although the words “YOUR” and “Motor Vehicle” are. Mr Swan submitted that the policy should be construed by reading the term “Your Motor Vehicle” as a motor vehicle belonging to the third defendant. That is, that the “Your” in that phrase is a possessory “your”. He submitted that on a proper construction of the policy, where a trailer causes injury to some person but such trailer is not owned by the Client (being the third defendant) the insurer will properly not indemnify its insured Client. It was submitted that is the result even where the trailer is attached to the prime mover owned by the Client.
Mr Manetta, of counsel for the third defendant, submitted that the policy provides cover for the third defendant in respect of any motor vehicle described in the schedule to the policy. A trailer in control is a motor vehicle (because a trailer is included in the definition of a motor vehicle) and such a trailer is described in the schedule. He submitted that the word “Your”, when used in conjunction with “Motor Vehicle”, is not a possessory “your”, but merely identifies a motor vehicle which is included in the schedule, and in respect of which insurance cover is provided to the insured Client in the circumstances referred to in The Agreement clause and in Section 2(1)(B)(1) and (2).
The policy is a commercial motor vehicle policy. It defines “Motor Vehicle” as being a mechanically-propelled vehicle and a trailer. Many of its provisions are drawn on the basis that, and with an acknowledgment that, commerce is conducted using prime movers, to which are attached trailers, on which merchandise, goods and other items are transported on our roads. Part of such commercial operations include the loading and unloading of merchandise and other goods and items from trailers. Merchandise, goods and other items to be transported by road are not loaded into or carried in prime movers. The schedule to the policy reflects the above. Two items – and two motor vehicles – are identified in the two pages constituting the schedule to the policy, and the insured Client pays what is nearly an equal premium in respect to each of those items, or each of those motor vehicles.
Whilst the insurers agree to provide indemnity in respect to any motor vehicle described in the schedule against liability arising out of an accident (and a trailer in control is one motor vehicle described in the schedule) the proviso is that “Your Motor Vehicle” is being used in connection with your occupation or business. Even if the word “Your” is a possessory “Your”, that is it must relate to a motor vehicle owned by the third defendant, I consider that when the third defendant drove from Adelaide to Kingston in his prime mover to which was attached a trailer not owned by him, and when he parked that semi-trailer and started to unload the trailer which was not owned by him, he was using his prime mover in connection with his occupation and business. The trailer could not have been transported to Kingston by the third defendant otherwise than if he had used his prime mover. He uses his prime mover to transport merchandise on the trailer. He uses his prime mover to park it, with the attached trailer, and then to unload the goods that are on the trailer, from the trailer.
I consider that Section 2(a)(B)(1) of the policy must be similarly construed. If the third defendant is held legally liable to pay for the bodily injuries suffered by the plaintiff in the accident that is alleged to have occurred at Kingston on or about 11 December 2002, I consider that those injuries were caused by the third defendant using his motor vehicle, being his prime mover.

Section 99(3) of the South Australian Motor Vehicles Act 1959 provides as follows:
(3)     Subject to subsection (3a), for the purposes of this Part and Schedule 4, death or bodily injury will be regarded as being caused by or as arising out of the use of a motor vehicle only if it is a consequence of –
(a)    the driving of the vehicle; or
(b)    the vehicle running out of control; or
(c)    a person travelling on a road colliding with a vehicle when the vehicle is stationary, or action taken to avoid such a collision.
When this provision was enacted it was intended to reduce the scope of indemnity imported by the word “use” in compulsory third party vehicle insurance. As much as anything that intention was effected by providing that indemnity would only be provided when injury is “a consequence of the driving of the vehicle”. In Heath v Corporation of City of Tea Tree Gully & Anor (1996) 66 SASR 548 at 549 Cox J said, when considering the effect of s99(3) of the Motor Vehicles Act:
There has accumulated throughout Australia a large body of case law on the kind of “use” to which a vehicle must be put in order to bring that use in any given instance within the statutory provisions relating to compulsory motor vehicle insurance. The usual formula has been held to include activities with respect to a motor vehicle that would not ordinarily be regarded as acts of driving.
Cox J said that “obviously sub-s(3) was intended to limit significantly the expansive interpretation that had previously been given”. The case of Heath concerned a front-end loader which was designed to be used as a normal motor vehicle, in the sense of being driven from one point to another. When the accident in that case happened the front end loader was stationary at the kerb and the plaintiff was loading concrete slabs manually into the bucket. The majority in that case held that that activity was not sufficiently connected with an act of driving to fall within sub-s(3). Prior J, who comprised the minority, held that an injury may arise out of the use of a vehicle if injury is incurred whilst that vehicle is being loaded. He held that loading was part of the driving, and compulsory third-party insurance applies.
In the case before me words similar to those used in sub-s(3) are not used in the policy. The policy uses the words: “being used in connection with Your occupation or business” and “if caused … by You using Your Motor Vehicle”.
I consider that in those circumstances authorities which have been decided on sub-s(3) (or provisions elsewhere similar to that sub-section) have no application when construing the policy. I consider that the earlier authorities which held that activities with respect to a motor vehicle that would not ordinarily be regarded as acts of driving should guide the proper construction of the policy. The policy provides that the insurer will pay in respect of injuries caused by the insured using his motor vehicle. I have no doubt that the unloading of goods off a trailer attached to the third defendant’s prime mover is an event whereby the third defendant was using his motor vehicle (his prime mover) and that any injuries the plaintiff suffered thereby were caused by him so using his motor vehicle (his prime mover) (see Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, at 440-441; Fawcett v BHP Bi Products Pty Ltd (1960) 104 CLR 80, at 91-2).
Whether any bodily injuries that the plaintiff may have suffered were caused during unloading merchandise off “Your Motor Vehicle” direct to a fixed place of rest beside “Your Motor Vehicle” (Section2 (a)(B)(2)) is a more difficult question. That will depend on whether “Your Motor Vehicle” in the policy is to be construed as a motor vehicle belonging to the third defendant. I consider that it should not be so construed. As I have said before this is a commercial contract of insurance. The trucking and haulage industry operates with prime movers moving freight on trailers which are often not owned by the person who owns the prime mover. If the “trailer in control” in the schedule to the policy could only apply to a trailer owned by the third defendant one might have expected it to be better identified, or identified at least in some way in the schedule to the policy, in the same way as is the third defendant’s prime mover. It is difficult to imagine what the “trailer in control” identified in the schedule refers to, if it is not a trailer being hauled by the third defendant’s prime mover. That is why it cannot better be identified in advance, because it will likely be a different trailer from time to time. Looking at the policy as a whole, and in particular the fact that the schedule identifies two vehicles one of which is an unidentified trailer in control, I consider that, at the very least, this phrase is reasonably open to the two constructions contended for by counsel for the parties. I consider that the phrase is “truly ambiguous” (Halsbury’s Laws of England, Vol 25, 4^th ed, 1994, para 414).
I consider that the policy should be construed against the third party insurers, whom, I infer, drew the contract of insurance. I consider that this is a case where, for the issue I am now considering, the contra proferentem rule applies, and should be applied. Accordingly, I consider that the third defendant is entitled to indemnity against the third party insurers pursuant to Section 2(a)(A)(2) of the policy.
I do not consider that endorsement 69 in the policy assists in a proper construction of The Agreement clause or Section 2(a) of the policy.
Endorsement 69 (applicable to the “TRAILER IN CONTROL”) appears at page 16 of Exhibit TP1. It is as follows:
Notwithstanding anything to the contrary contained in Section 2(B)(2) of the Policy we will indemnify you for loss, or damage to any one trailer which is not owned, mortgaged, leased on hire by you, provided that you are proven to be negligent and responsible for the loss, or damage to the trailer, whilst such trailer is in the lawful custody or control of you and is being used by you in conjunction with the nominated tow vehicle insured under this policy, subject to the following:-
1. The basis of indemnity shall be the market value of the trailer or the limit of indemnity shown on the Policy against trailer/s in control whichever is the lesser.
2. We shall not be liable for:-
(A)Loss of use (by you, by the owner of the trailer, or by any other party) arising as a result of/from the loss destruction or damage of/to the trailer.
(B)Depreciation wear and tear mechanical or electrical breakdown failures or breakages.
(C)Damage to tyres by application of brakes or road cuts punctures or bursts.
(D)Loss by theft during or after the occurrence of a fire or accident unless and until reasonable steps have been taken to ensure the safety of the trailer and all other property forming part of the trailer.
(E)Loss or damage occasioned by lawful seizure or other operation of law.
Further, in addition to Section 3 of the Policy, we shall not pay any claim or judgement or defend any suit after our basis of indemnity has been exhausted by payment of judgements or settlements. Such amounts of costs and expenses thus incurred under Section 2 (except payments in settlement of claims and suits) are payable by us in addition to the basis of indemnity under this endorsement but in no event shall our liability in respect of these amounts exceed 50% of the basis of indemnity applicable under this endorsement, up to a maximum of $30,000 for such costs and expenses.
In all other respects the terms, exclusions and conditions of the Policy are to apply.
This endorsement refers to “Section 2(B)(2) of the Policy”. There is no Section 2(B)(2) in the policy. There is a Section 2(a)(B)(2) and there is a Section 2(b)(2). The first provision refers to an event in respect of which the insurer will pay. The second provision refers to an event in respect of which the insurer will not pay. Neither, however, relates to an event in respect of which Another Person (as defined in the policy) suffers bodily injury (fatal or non-fatal). I consider that it is more likely that endorsement 69, which is headed “TRAILER/S IN CONTROL OF TOW OPERATOR”, is intended to include cover, in certain circumstances, which would otherwise be excluded. In addition endorsement 69 refers to a trailer in “control” of the client, as does Section 2(b)(2) of the policy. I therefore consider that endorsement 69 is intended to relate to the exclusion in Section 2(b)(2), and that the “(B)” in endorsement 69 should have been “(b)”.
The plaintiff’s claim in this matter is for personal injuries. It is not a claim for damage to property. I therefore consider that endorsement 69 does not assist in this case.
I also consider that endorsement 53 is of little assistance here. I earlier referred to the fact that the “POLICY SCHEDULE” sent to me by both counsel referred to the prime mover being a refrigerated vehicle. The plaintiff’s pleadings (admitted by all defendants) refer to the trailer being “a refrigerated trailer”. Perhaps both the prime mover and the trailer are refrigerated, and perhaps both needed to be before the third defendant’s prime mover could transport the goods that were consigned by Hann’s Polar Transport from Adelaide to Kingston. If that is the case, that may add weight to the fact that the third defendant was using his motor vehicle (his prime mover) when he was unloading goods from the trailer that did not belong to him. As I do not know these matters as matters of fact, however, I do not rely on them.
I have read and considered the two authorities cited to me by Mr Swan in support of his submission that “at common law, there is a distinction between a vehicle and a conglomeration. A trailer is a separate vehicle”. There is no doubt that by the definition in the policy a prime mover and a trailer can be separate vehicles. On my view of the proper construction of the policy it is unnecessary for me to decide other than that a prime mover and a trailer can be separate vehicles. My construction of the policy would apply on the basis that they are separate vehicles. The policy itself, in The Agreement clause and in the schedule, refers to a prime mover and a vehicle as separate vehicles. It is unnecessary, therefore, for me to decide whether a semi-trailer, which is comprised of a prime mover and an attached trailer, falls within the definition of “Motor Vehicle” in the policy because it (a semi-trailer) is a mechanically-propelled vehicle designed for use on land only”. If it is, and if it is accepted that in commercial transport operations the person who owns the prime mover may often not own the trailer, the “Your” in the phrase “Your Motor Vehicle” is unlikely to be a possessory “your” because there would be many instances where the insured Client did not own the two parts that made up the semi-trailer, and therefore the commercial efficacy of Section 2(a) of the policy would be severely compromised and restricted. The “Your” would likely therefore identify the vehicles in the schedule. If a semi‑trailer is not included in the definition as “a mechanically-propelled vehicle” then the proper construction that I consider should be put on the policy will apply.
Mr Swan submitted, although the third party insurers did not plead, that the exclusion contained in Section 2(b)(4) of the policy precludes the third defendant from claiming under the policy. His submission was that his claim, insofar as it related to his prime mover, is a claim in respect of which insurance is required according to law. That law was the Motor Vehicles Act of South Australia, which requires compulsory third party insurance. I was told by Mr Manetta that the third defendant had made a claim on his compulsory third party insurance policy but it had been denied. It had been denied on the basis that any injuries the plaintiff suffered were not as a consequence of the driving of his prime mover, or any of the other circumstances referred to in sub-s(3) of s99 of the Motor Vehicles Act 1959. I have already set out the provisions of that sub-section.
In the circumstances just referred to I am unable to find that the third party insurers can properly claim that any claim made in this case is “in respect of which insurance is required according to law”.