Michael James Duminski v Territory Insurance Office - [2004] NTMC 80

[Back to Main List] [Back to NTMC 2004 List] CITATION: Michael James Duminski v Territory Insurance Office [2004] NTMC 080

PARTIES: MICHAEL JAMES DUMINSKI

TERRITORY INSURANCE OFFICE

TITLE OF COURT: Local Court

JURISDICTION: Civil

FILE NO(s): 20312183

DELIVERED ON: 19 October 2004

DELIVERED AT: Darwin

HEARING DATE(s): 22, 23, 26 March 2004, 14 April 2004, 10 May 2004

JUDGMENT OF: Jenny Blokland SM

CATCHWORDS:

ACTION ON INSURANCE CONTRACT – BURDON OF PROOF – DRIVE UNDER THE INFLUENCE – ADMISSIBILITY OF CERTIFICATE

Traffic Act NT
Evidence (Business Records) Interim Arrangements Act (NT)
Traffic Act Amendment Act 2003

Noonan v Elson; Ex parte Elson [1950] SQR 215
Gavin Yunupingu v The Queen, No CA 11 of 2002
Iskov v Matters [1997] VIC 220
The Queen v Turner [1975] SASR
The Queen v Little [1976] 14 SASR 556
Bunning v Cross [1978] 141 CLR 54
Novacik v Cooper (1973) ACTR 99
Smith v Brazendale (1980) TAS R 83 at 88
Wojtasik v Cockburn (1990) 12 MVR 527 (SA)
Houston v Harwood [1975] VR 695
Alan William Peter Thomson v Harry Ernest Andrews (1992) 84 NTR 20
Carlile v The Nominal Defendant [1978] QLDR 132
Nottle v Chaplin (1988) 8 MVR 268
Webb v Padman (1989) 9 MVR 55

Williams, Burdens and Standards in Civil Litigation Vol 25, 165 Sydney Law Review
Brown, Traffic Offences and Accidents, (Butterworths) 3rd Edition

REPRESENTATION:

Counsel:
Plaintiff: Ms Farmer and Mr Rowbottom
Defendant: Mr Currie

Solicitors:
Plaintiff: Withnall Maley
Defendant: Morgan Buckley

Judgment category classification: B
Judgment ID number: [2004] NTMC 080
Number of paragraphs: 36

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20312183

BETWEEN:

MICHAEL JAMES DUMINSKI
Plaintiff

AND:

TERRITORY INSURANCE OFFICE
Defendant

JUDGEMENT

(Delivered 19 October 2004)

JENNY BLOKLAND SM:
Introduction:
1. The plaintiff, Mr Michael Duminski claims $14,870 plus certain fees and costs that he alleges is due to him from the defendant insurer, Territory Insurance Office (TIO). The origin of the claim concerns damage to Mr Duminski’s motor vehicle being a Toyota Land Cruiser Utility (Reg. No 497-307), “the motor vehicle”. The defendant, the Territory Insurance Office, were the vehicle’s insurer pursuant to an Insurance Policy, “The Insurance Policy” that is before the court. In May 2002, the plaintiff was involved in an accident in the motor vehicle. The motor vehicle was damaged and he made a claim under the Insurance Policy. The defendant has refused to process or pay the cost of the loss or damage, relying on a term in the Insurance Policy (see Exhibit P3) that reads as follows:
12.2 we will not be liable if at the time of an accident Your Vehicle and any attached trailer is being -
12.2.8 driven by or is in the charge of any person –
(a) while under the influence of alcohol or drugs;
(c) whose recorded reading following a breath analysis or blood test exceeds the level of alcohol permitted by law, or who is convicted of the offence of refusing to take a breath…

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 Michael James Duminski v Territory Insurance Office

Details

AGLC: Michael James Duminski v Territory Insurance Office [2004] NTMC 80
Case: [2004] NTMC 80
Decision Date: 19 October 2004

CaseChat Overview and Summary

In the Local Court of the Northern Territory, Michael James Duminski sued Territory Insurance Office for damages to his vehicle under an insurance policy. The defendant insurer refused to pay the claim, citing a clause in the policy that excludes coverage if the insured was driving under the influence of alcohol or drugs. The court had to determine whether the insurer could rely on this exclusion clause and whether the plaintiff was driving under the influence at the time of the accident.

The court found that the burden of proof rested on the defendant to establish that the plaintiff was driving under the influence. The court considered the evidence presented by both parties, including the plaintiff's lack of memory of the events leading up to the accident, the observations of law enforcement officers and an ambulance officer who noted the plaintiff's intoxication, and a blood test result showing a high alcohol level. The court concluded that the probabilities firmly favoured the conclusion that the plaintiff was driving under the influence of alcohol.

The court also considered the admissibility of a certificate evidencing the blood test result. Although the certificate had some errors, the court found that these did not prejudice the defendant's rights and admitted the certificate as evidence. The court found that the plaintiff was in breach of the insurance policy and dismissed the claim. The court reserved costs for later determination.

Orders