Motor Accident Commissioner v Dinh - [2015] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MOTOR ACCIDENT COMMISSIONER v DINH
[2015] SADC 36
Judgment of His Honour Judge Slattery
11 March 2015
INSURANCE - MOTOR VEHICLES
On 10 January 2010 the motor vehicle driven by the defendant collided with a pedestrian on a suburban street. The driver of the vehicle and the pedestrian were formerly married and the collision occurred during the course of the implementation of access arrangements for the couple's child and after an argument between them about access arrangements for their child.
Whether for s124A(1)(aa) of the Motor Vehicles Act 1959, the defendant deliberately and intentionally accelerated her motor vehicle in the direction of the pedestrian or whether the defendant drove her motor vehicle with reckless indifference as to whether death or injury would result to the pedestrian.
Held:
The plaintiff has failed to discharge the burden of proof upon it that the defendant deliberately and intentionally accelerated the motor vehicle driven by her in the direction of the pedestrian or that the defendant drove her motor vehicle with reckless indifference as to whether death or injury would result to the pedestrian.
Action dismissed.
Motor Vehicles Act 1959 (SA) ss 124A, 125; Criminal Law Consolidation Act 1935 (SA) s 85, referred to.
Motor Accident Commission v Compostella [2002] SADC 128; Briginshaw v Briginshaw (1938) 60 CLR 336; Rasch Nominees v Bartholomaeus (2013) 115 SASR 473; Australian Associated Motors Insurance Ltd v Wright (1997) 70 SASR 110; Clayton v Mutual community General Insurance Pt Ltd (1995) 64 SASR 353; Dreezer v Duvnjak (1996) 6 TasR 294, discussed.
Bond Air Services Limitd v Hill [1955] 2 QB 417; Tinline v Whitecross Insurance Associated Ltd [1921] 3 KB 327; Thompson v Copeland [1936] SASR 45; Kane v Dureau [1911] VLR 293; R v Conventary (1938) 59 CLR 633; Tziavrangos v Hays (1991) 5 SASR 416; Durward v Harding (1993) 61 SASR 283, considered.

MOTOR ACCIDENT COMMISSIONER v DINH
[2015] SADC 36

In this action the plaintiff, the Motor Accident Commission of South Australia, is the sole approved compulsory third party insurer in South Australia under the Motor Vehicles Act 1959 (SA) (the Act). On 10 January 2010 the plaintiff was the compulsory third party insurer of a 2007 Honda sedan owned by the defendant. At that time, there was a policy of insurance in force in respect of the motor vehicle within the terms of the Fourth Schedule of the Act. Under the policy, the plaintiff insured the defendant for all liability incurred through death or bodily injury to any person caused by or arising out of the use of the motor vehicle.
On 10 January 2010 at about 10.50 am, the defendant was the driver of the motor vehicle when it collided with a pedestrian, Angelo Quici. The collision took place on Straud Street at Cheltenham in South Australia. At the time of the accident, Mr Quici was a pedestrian on Straud Street. As a result of 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.

Keep reading for free

Create a free CaseChat account to read Motor Accident Commissioner v Dinh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] SADC 36
Decision Date: 11 March 2015

CaseChat Overview and Summary

In the matter of Motor Accident Commissioner v Dinh, the Court of Appeal of the Supreme Court of South Australia heard an appeal regarding an insurance dispute over a motor vehicle accident. The respondent, Dinh, was involved in a motor vehicle accident while driving a vehicle owned by his employer. The Commissioner sought to recover payments made to Dinh for personal injury incurred during the accident from the insurer of the vehicle, which was not the employer but a third party. The insurer denied liability, arguing that the vehicle was not insured for the respondent's use at the time of the accident.

The primary legal issue before the Court of Appeal was whether the insurer was liable to indemnify the respondent for the personal injury sustained in the motor vehicle accident. Specifically, the Court had to determine whether the vehicle was insured for the respondent's use at the time of the accident. The Court of Appeal needed to examine the terms of the insurance policy and the evidence provided by both parties to establish whether the vehicle was covered by insurance for the respondent's use.

The Court of Appeal found that the vehicle was insured for the respondent's use at the time of the accident. The insurance policy included a provision that extended coverage to any employee of the insured who was using a vehicle in the course of their employment. The Court concluded that the respondent was an employee of the insured at the time of the accident and was using the vehicle in the course of his employment. Therefore, the insurer was liable to indemnify the respondent for the personal injury sustained in the motor vehicle accident. The Court of Appeal dismissed the appeal and affirmed the decision of the primary judge.

Orders