SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MURRAY'S TRANSPORT NSW PTY LTD v CGU INSURANCE LIMITED
[2013] SASCFC 100
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
9 October 2013
INSURANCE - CLAIMS GENERALLY - CLAIM BY THIRD PARTY WHERE INSURED ABSENT OR DEAD
INSURANCE - THE POLICY - CONDITIONS, WARRANTIES AND EXCEPTIONS - EXCLUSION CLAUSES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - EVIDENCE - ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
The appellant, Murray's Transport NSW Pty Ltd, appeals against the dismissal of its action against the respondent, CGU Insurance Limited, the insurer of the driver of a Jaguar motor vehicle which collided with, and caused damage to, one of Murray's Transport's B-Double trucks. The driver of the Jaguar, Mr McFarlane, died in the collision and his estate is bankrupt. Murray's Transport brought this action directly against the insurer, pursuant to s 51 of the Insurance Contracts Act 1984 (Cth).
The Judge dismissed Murrray's Transport's claim because he held that the damage was caused by an event which was excluded from the scope of CGU's insurance policy. That event was that Mr McFarlane had intentionally caused the damage in that he deliberately collided with the B-Double truck in order to take his own life. Murray's Transport appeals against that finding.
Held (allowing the appeal):
(1) With the evidence having established that Mr McFarlane was liable to Murray's Transport because he either intentionally or negligently caused the accident, it fell on CGU to prove that the damage was intentionally caused and for that reason within the terms of the provision of the policy excluding from CGU's indemnity liability which had been intentionally incurred (at [10] (Kourakis CJ).
(2) The Judge erred in drawing the inference that Mr McFarlane deliberately brought about the collision (at [36] (Kourakis CJ), [94] (Gray J) and [114] (Nicholson J)).
(3) CGU has not discharged its onus to prove that Mr McFarlane deliberately caused the accident and therefore the damage to Murray's Transport's B-Double truck (at [39] (Kourakis CJ), [94] (Gray J) and [109] and [115] (Nicholson J)).
(4) Murray's Transport has discharged its onus to prove that the accident came about as a result of Mr McFarlane's negligence (at [86]-[87] (Gray J) and [129] (Nicholson J)).
(5) The parties consented to the Court determining the issue of contributory negligence in the event CGU was found liable. On the issue of contributory negligence, Murray's Transport's responsibility for the damage is fixed at a 15 per cent reduction in the award of damages (at [40]-[44] (Kourakis CJ), [95] and [106] (Gray J) and [131] (Nicholson J)).
(6) Appeal allowed; the order of dismissal in the District Court is set…
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- Case
- [2013] SASCFC 100
- Decision Date
CaseChat Overview and Summary
The central legal issues before the appellate court were whether the trial judge erred in inferring that Mr McFarlane deliberately caused the collision, and consequently, whether CGU Insurance had discharged its onus to prove that the damage was intentionally caused and thus excluded from indemnity. The court was also required to determine whether Mr McFarlane’s actions constituted negligence, and if so, to consider the issue of contributory negligence, to which the parties had consented to the appellate court determining in the event CGU Insurance was found liable.
The Full Court of the Supreme Court of South Australia held that the trial judge had erred in inferring that Mr McFarlane deliberately brought about the collision. The court reasoned that while the evidence established Mr McFarlane was liable to Murray’s Transport, either through intentional conduct or negligence, the onus rested on CGU Insurance to prove the damage was intentionally caused to bring it within the exclusion clause. The court found that CGU Insurance had not discharged this onus. Conversely, the court determined that Murray’s Transport had discharged its onus to prove the accident was caused by Mr McFarlane’s negligence.
The appeal was allowed, the District Court’s order of dismissal was set aside, and CGU Insurance was ordered to pay Murray’s Transport 85% of the damage to its B-double truck. This reduction reflected a 15% apportionment of contributory negligence against Murray’s Transport, a finding to which the parties had consented.
Orders
Orders of the court
Held (allowing the appeal):
(1) With the evidence having established that Mr McFarlane was liable to Murray's Transport because he either intentionally or negligently caused the accident, it fell on CGU to prove that the damage was intentionally caused and for that reason within the terms of the provision of the policy excluding from CGU's indemnity liability which had been intentionally incurred (at [10] (Kourakis CJ).
(2) The Judge erred in drawing the inference that Mr McFarlane deliberately brought about the collision (at [36] (Kourakis CJ), [94] (Gray J) and [114] (Nicholson J)).
(3) CGU has not discharged its onus to prove that Mr McFarlane deliberately caused the accident and therefore the damage to Murray's Transport's B-Double truck (at [39] (Kourakis CJ), [94] (Gray J) and [109] and [115] (Nicholson J)).
(4) Murray's Transport has discharged its onus to prove that the accident came about as a result of Mr McFarlane's negligence (at [86]-[87] (Gray J) and [129] (Nicholson J)).
(5) The parties consented to the Court determining the issue of contributory negligence in the event CGU was found liable. On the issue of contributory negligence, Murray's Transport's responsibility for the damage is fixed at a 15 per cent reduction in the award of damages (at [40]-[44] (Kourakis CJ), [95] and [106] (Gray J) and [131] (Nicholson J)).
(6) Appeal allowed; the order of dismissal in the District Court is set aside; and, CGU is to pay Murray's Transport 85% of the damage to Murray's Transport B-Double truck (at [45] (Kourakis CJ), [107] (Gray J) and [131] (Nicholson J)).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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