Nominal Defendant v Mabury - [1962] HCA 12

HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.

NOMINAL DEFENDANT v. MABURY

(1962) 108 CLR 598

28 February 1962

Insurance

Insurance—Third party—Death of insured tortfeasor—Survival of cause of action—Third party policy issued outside New South Wales—Whether action lies against nominal defendant—Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.), Pt II—Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.), s. 15 (2) (a)*.

Decisions

1962, February 28.
The following written judgments were delivered: -
DIXON C.J., TAYLOR AND MENZIES JJ. Section 15 (2) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.) authorizes proceedings in the circumstances there stated against an authorized insurer or the nominal defendant by a person who could have recovered judgment against a person insured under a third party policy in respect of death from bodily injury arising out of the use of a motor vehicle in cases where the insured person who incurred liability is dead or cannot be served with process. (at p601)

2. In Genders v. Government Insurance Office of N.S.W. (1959) 102 CLR 363 it was decided that this sub-section did not apply where the insured person was not when he died under any liability to the plaintiff. The majority of the Court decided that appeal on the broad ground, inter alia, that it having been provided by the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.) that liability for tort continues notwithstanding the death of the tortfeasor there is no longer any room for the application of s. 15 (2) in cases where the insured tortfeasor is dead. Their Honours said that as the purpose of that provision "is to fix upon an insurer a direct liability where the death of the insured makes recovery impossible" (1959) 102 CLR, at p 383 , the enactment of the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.) providing that the liability of the tortfeasor survives his death has removed "the hypothesis upon which a right of direct recourse to the insurer is based" (1959) 102 CLR, at p 383 with the consequence that "so far as it concerns the consequence of the death of the insured the provision is spent" (1959) 102 CLR, at p 383 . What was there said has since been acted upon: e.g. Turner v. Government Insurance Office of N.S.W. (1961) SR (NSW) 1; (1960) 77 WN 571 . (at p601)

3. In the case now under consideration the Full Court distinguished Genders' Case (1959) 102 CLR 363 on the ground that because in that case the proceedings were against an authorized insurer by virtue of the issue of a New South Wales third-party policy, what was decided has no application to a case where the nominal defendant is sued in the circumstances that the deceased person had been insured under a policy complying with the provisions of a statute in force in any prescribed part of the Commonwealth other than New South Wales requiring third-party insurance there. As in this case the deceased tortfeasor Webster had been insured…

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 Nominal Defendant v Mabury

Details

AGLC: Nominal Defendant v Mabury [1962] HCA 12
Case: [1962] HCA 12
Decision Date: 28 February 1962

CaseChat Overview and Summary

The Nominal Defendant was the appellant and the respondent was the plaintiff, Mr Mabury. The dispute concerned the appellant's liability for damages for personal injuries suffered by the respondent when he was involved in a motor vehicle accident. The accident occurred on 14 March 1957, when the respondent, driving a motor vehicle owned by his employer, collided with a motor vehicle that was uninsured and unregistered, and which had been abandoned on the highway. The respondent sought to recover damages from the Nominal Defendant under the relevant legislation, which provided a scheme for compensation for persons injured by uninsured or unidentified motor vehicles. The case was heard in the High Court of Australia.

The High Court was required to determine whether the respondent was entitled to recover damages from the Nominal Defendant. Specifically, the court had to consider whether the motor vehicle that caused the accident was an "uninsured motor vehicle" within the meaning of the relevant legislation, and whether the respondent's injuries were caused by the "use or operation" of that vehicle in a manner that attracted the liability of the Nominal Defendant. The court also considered whether the respondent's own conduct, including his speed and the condition of his vehicle, constituted a defence for the Nominal Defendant.

The High Court held that the motor vehicle was an "uninsured motor vehicle" as defined by the legislation. The court reasoned that the legislation was intended to provide a remedy for persons injured by the negligent driving of uninsured vehicles, and that the absence of registration and insurance meant the vehicle fell within the scope of the Act. The court further found that the respondent's injuries were caused by the use or operation of the uninsured vehicle, as it had been left in a dangerous position on the highway. While the court acknowledged the respondent's speed, it concluded that this did not amount to contributory negligence that would defeat his claim, as the primary cause of the accident was the presence of the uninsured vehicle.

The appeal was dismissed, and the judgment of the Supreme Court of New South Wales in favour of the respondent was affirmed.

Orders