Motor Accident Commission v Dinh - [2015] SASCFC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOTOR ACCIDENT COMMISSION v DINH
[2015] SASCFC 184
Judgment of The Full Court
(The Honourable Acting Chief Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)
9 December 2015
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - GENERALLY - SOUTH AUSTRALIA
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - RECOVERY OR RECOURSE BY INSURER WHERE UNAUTHORISED USE, INEFFECTIVE CONTROL, DEFECTIVE VEHICLE, ETC
Appeal against a decision of a District Court Judge dismissing an action for recovery of monies paid out pursuant to a statutory insurance policy. The appellant is the sole approved compulsory third party insurer in South Australia under the Motor Vehicles Act 1959 (SA). The appellant was the insurer of the vehicle owned by respondent. The respondent was involved in a collision with a pedestrian while driving the vehicle. At trial, it was the appellant’s case that the respondent breached the statutory policy of insurance by driving the vehicle with the intention of or, in the alternative, with reckless indifference as to, causing death, bodily injury or property damage. Pursuant to section 124A of the Motor Vehicles Act, and consequent to the alleged breach of policy, the appellant claimed from the respondent the monies paid and costs incurred in respect of the claim of the pedestrian.
Whether the trial Judge erred in his formulation of the test of reckless indifference.
Held per Gray ACJ (Sulan and Lovell JJ agreeing):
1. Reckless indifference, as appearing in the statutory policy of insurance, should be interpreted in accordance with the approach of Diplock LJ in Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898.
2. The Judge erred in importing objective considerations into the test of reckless indifference.
3. In the ordinary course, it would be necessary to remit the matter for further hearing and determination. However, having regard to the clarification of the issue of law and, as the appellant no longer seeks any recovery from the respondent, it is appropriate to dismiss the appeal.
Motor Vehicles Act 1959 (SA) s 124A; Sch 4, referred to.
Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898, applied.
Legal and General Insurance v Eather (1986) 6 NSWLR 390 (1986) 6 NSWLR 390; State Government Insurance Commission v Lane (1997) 68 SASR 257; Mead v Allianz Australia Insurance Ltd [2006] NSWSC 366; Clayton v Mutual Community General Insurance Pty Ltd (1995) 64 SASR 353; Motor Accident Commission v Compostella (2002) SADC 128, considered.

MOTOR ACCIDENT COMMISSION v DINH
[2015] SASCFC 184
Full Court: Gray ACJ, Sulan and Lovell JJ
GRAY ACJ.

This is an appeal against a decision of a District Court Judge dismissing an action for recovery of monies paid out pursuant to an insurance policy.
The plaintiff and appellant, the Motor Accident Commission, is the sole approved compulsory third party insurer in South Australia under the Motor Vehicles Act 1959 (SA). The…

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.

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Details

Case: [2015] SASCFC 184
Decision Date: 9 December 2015

CaseChat Overview and Summary

The Motor Accident Commission (the plaintiff) sought to recover moneys paid to Mr Quici for injuries he sustained in a motor vehicle collision from the defendant, who was the insured driver. The plaintiff's claim was based on section 124A of the Motor Vehicles Act, which allows an insurer to recover payments made in respect of a liability if the insured person contravened a term of the policy, specifically by driving with the intention of causing injury or with reckless indifference to causing injury. The dispute before the Full Court of the Supreme Court of South Australia concerned whether the defendant had driven her vehicle with reckless indifference to causing injury to Mr Quici.

The legal issue before the Full Court was whether the trial judge had correctly applied the test for "reckless indifference" as it pertains to the statutory policy of insurance under section 124A of the Motor Vehicles Act. The plaintiff contended that the defendant drove her vehicle with the intention of causing bodily injury to Mr Quici, or alternatively, with reckless indifference to whether such injury would result. The trial judge had rejected the claim of intentional driving, and the appeal focused on the finding that the defendant had not driven with reckless indifference.

The Full Court, in allowing the appeal, clarified that the test for reckless indifference should be interpreted in accordance with the approach of Diplock LJ, as applied in Australian cases such as *Legal and General Insurance v Eather* and *State Government Insurance Commission v Lane*. This test requires the insured person to have had an actual recognition that a danger existed and to have not cared whether or not that danger was averted. The Court found that the trial judge had erred by articulating a different test and by importing objective considerations into the assessment of reckless indifference. Consequently, the Court determined that the appeal should be dismissed, as the plaintiff did not ultimately seek any recovery from the defendant.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff paid an amount of $310,809.67 to Mr Quici in respect of injuries suffered as a result of the collision. Pursuant to section 124A of the Motor Vehicles Act, and consequent to the alleged breach of policy, the plaintiff claimed the monies paid and costs incurred in respect of the claim by Mr Quici from the defendant. Background Mr Quici is the former husband of the defendant. The Judge described the relationship between the defendant and Mr Quici as acrimonious. They had been married for six years between 1999 and 2005. They shared a daughter, AQ, who was nine years of age at the date of the incident. The defendant and Mr Quici shared custody of AQ on a 50:50 basis. There was a Domestic Violence Restraining order in place that prohibited Mr Quici from contacting the defendant or AQ other than in relation to prior arranged access visits. The Judge found that the collision occurred in the course of an arranged access visit. At about 9.30 am on 10 January 2010, Mr Quici drove his vehicle from his home to Straud Street, Cheltenham. Mr Quici parked on the eastern side of the street, which runs in a north south direction. The defendant arrived sometime after 10.00 am. The Judge found she parked her vehicle at least 2 to 3 metres, but perhaps as much as 12 metres, behind Mr Quici’s vehicle. Mr Quici got out of his vehicle and walked to the rear of his vehicle. The defendant and AQ also got out of the defendant’s vehicle. AQ greeted Mr Quici and got into his vehicle. The Judge found that the defendant and Mr Quici then argued about access arrangements and that Mr Quici was the promulgator of the issue. The defendant told Mr Quici that she would not discuss the access arrangement and got back into her vehicle. Mr Quici hit the window of the driver’s door of the defendant’s vehicle with his hand in a forceful way. The defendant was frightened and said that she wanted to leave. She loudly revved the engine of the vehicle. Mr Quici moved away toward the back of his vehicle and stood by the rear wheel on the driver’s side. The defendant drove her vehicle out of the carriageway to travel in a general southerly direction. In doing so, the front left wheel of the vehicle went over the right foot of Mr Quici and the left side of the car struck Mr Quici’s right leg. Mr Quici sustained several injuries as a result. The plaintiff’s claim was for monies paid to Mr Quici as a consequence of injuries sustained by Mr Quici. The plaintiff relied on its statutory right of recovery as provided by section 124A of the Motor Vehicles Act, which relevantly provides: (1) Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance—(aa) by driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results; or...the insurer may, by action in a court of competent jurisdiction, recover from the insured person any money paid or costs incurred by the insurer in respect of that liability. As noted above, the plaintiff claimed that the defendant drove the motor vehicle with the intention of or, in the alternative, reckless indifference as to, causing bodily injury. The Judge rejected the claim of intentional driving. There is no appeal against that rejection. The Judge also dismissed the contention that the defendant had driven with reckless indifference. The appeal is against that finding. The Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY ACJ

Further, in so far as the Judge relied on the decisions of Kitchen DCJ in Motor Accident Commission v Compostella,[15] it is my view that those decisions, to the extent that they are inconsistent with the observations of Diplock LJ as applied in Australia, do not represent a correct statement of the law. [15] Motor Accident Commission v Compostella [2002] SADC 128. Conclusion Reckless indifference, as appearing in the statutory policy of insurance, should be interpreted in accordance with the approach of Diplock LJ, as applied in this country in the cases of Legal and General Insurance v Eather and State Government Insurance Commission v Lane. In the present case, the issue is whether the defendant drove her motor vehicle with the actual recognition herself that a danger existed and not caring whether or not the danger was averted. The Judge erred in articulating a different test than that referred to above, and, in particular, by importing objective considerations into the test of reckless indifference. As a consequence, the Judge erred in his approach such that, in the ordinary course, it would be necessary to remit the matter for further hearing and determination. Having regard to the clarification of the issue of law and as the plaintiff does not ultimately seek any recovery from the defendant, I consider that it is appropriate to dismiss the appeal. SULAN J: I agree with the reasons of Gray ACJ. I would dismiss the appeal. LOVELL J: I agree with the reasons of Gray ACJ. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY ACJ

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