NSW Insurance Ministerial Corp v Rous

[1994] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S100 of 1994

B e t w e e n -

NSW INSURANCE MINISTERIAL
  CORPORATION (formerly GIO of NSW)

Applicant

and

`
  SOPHIA RAYNOR ROUS

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1994, AT 9.59 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR H.M. di SUVERO, for the applicant.  (instructed by G.M. Meadows, New South Wales Insurance Ministerial Corporation)

MR J.E. MACONACHIE, QC:   If Your Honours please, I appear with my learned friend, DR J.E. GRIFFITHS, for the respondent.  (instructed by Abbott Tout Russell Kennedy)

MASON CJ:   Yes.  Mr Jackson.

MR JACKSON:   Your Honours, someone from a stationary motor vehicle, either the person in the driver’s seat, or one of a number of passengers, it did not appear which, threw something, probably a bottle, at a passing horse and rider some distance away.  The bottle hit the horse on the rump and it bolted, and in the end the respondent, the rider, was thrown from the horse and injured.

In the Court of Appeal, though not before the primary judge, it was held that the injury arose out of the use of the motor vehicle, in terms of section 14A of the Motor Vehicles (Third Party Insurance) Act.  It was also held that the respondent could have enforced a claim against the owner or driver and, in consequence, the claim could be enforced against the applicant.

Your Honours, a factor, not unimportant, is that referred to in paragraph 4 on page 2 of our summary, namely that there was no evidence to show who had thrown the bottle, namely whether it was a passenger, or the person in the driver’s seat.

McHUGH J:   Well, that point was not one at the trial, was it?

MR JACKSON:   Your Honour, may I come to that, because I did propose to come to that in just a moment, if I may.  Your Honours, in particular, there was absolutely nothing to suggest that if the person throwing the bottle was a passenger it had happened in a way for which the driver could be held responsible.  Now, Your Honours, the decision has two aspects which are important; one concerns the question whether the driver of the vehicle was in some way negligent.  That is the point Your Honour Justice McHugh mentioned.  That was dealt with by the Court of Appeal.  If I could take Your Honours to the passage, at page 31, line 10, through to page 33, line 9.  Your Honours, if one goes to that passage, two things, relevantly for present purposes, are apparent.  The first is the Court of Appeal treated the issue of the driver’s responsibility as concluded by Coulton v Holcombe principles.  Your Honours will see that referred to on page 31.  That is the point being one which, if it had been raised at trial, relevant evidence might have been adduced.  But, Your Honours, it is clear in this case that, although that was what was said by the Court of Appeal, in fact the matter always was in issue at the trial ‑ I will give Your Honours the extracts which show that in just a moment ‑ and all that happened at the trial was that the issue was not the subject of submissions; at the conclusion of the case the submissions being directed to the arising out of the use of issue. 

Your Honours, may I hand to the Court some extracts from the ‑ it is actually from the record in the Court of Appeal, but they show the commencing part of the proceedings and Your Honours will see ‑ they should be highlighted ‑ first of all the amended statement of claim, Your Honours will see page 3 of it ‑ this is the allegation in paragraph 5, allegations dealing with the position of the driver; they allege failure to control, et cetera, behaviour of passengers.  Then one goes to the document, which is the further amended notice of grounds of defence, it is at page numbered 8 at the top, paragraph 2 denies negligence on the part of the driver.

Then, Your Honours, if one goes over to the last four to five pages, Your Honours will see the transcript of proceedings at the start of the trial, and at the third‑last page of those documents, the one headed number 21, at the top, Your Honours will see, about point 5 on the page, Mr Leahy addressing His Honour ‑ he was for the plaintiff, and Your Honours will see then, Mr di Suvero following that, saying:

“that’s quite clear” and in paragraph 2 of the last amended defence we deny that the driver of the unidentified vehicle was negligent as alleged at all. 

So that, Your Honours, I would accept entirely the correctness of the proposition that the topic, as a distinct topic of the negligence of the driver, was not dealt with in the submissions at the end of the case, but all the evidence that might have been adduced was adduced, and the question was no doubt involved essentially in discussion also of the other issue.

Now, Your Honours, the essence of the finding, if I could stay with it for just a moment, was that the driver ‑ finding made by the Court of Appeal ‑ was liable for the conduct of the passengers.  And that that is so, Your Honours, appears at page 33 in the lines 3 to 9, and Your Honours, the sum total of the evidence on the point consists of, and I give Your Honours three things: first, the findings at page 5, line 14 through to page 6, line 5.  The evidence to which His Honour is making reference in that passage may be seen at page 2, line 27 through to page 5, line 6, and then, Your Honours, the extract of the evidence set out in the Court of Appeal’s reasons at page 32, commencing at about line 8 through to the bottom of the page.

Now, Your Honours, all that the evidence, on any view, could have established was that whilst there might have been some chiacking by all the people in the car, there was absolutely nothing to indicate that the driver of the car was in some way to know or be responsible for the throwing of a missile from it.

McHUGH J:   The judge was entitled to take into account his general knowledge of what would go on in this situation.  You have got what was described as “five louts” in a vehicle chiacking and a young woman on a horse.

MR JACKSON:   Yes, and, Your Honour, the primary judge who heard her evidence did not adopt that view.  This comes from the Court of Appeal.

GAUDRON J:   He did rather.  He did not make a finding that it arose out of the use of a motor vehicle, but he accepted her evidence.  And her evidence was that there were these group of men in a car harassing her.

MR JACKSON:   Yes, Your Honour, I accept - - -

GAUDRON J:   And not once but on the next occasion on which they saw her.

MR JACKSON:   It is true to say that occurred although there was no particular connection between the two except it was the same people.  But, Your Honour, it was not a planned thing or anything like that.  Your Honour, the point I was getting to is that what one would have to do would be to find that the driver was responsible for the action of one of the people in the car throwing the thing out.  Now, in the absence of some evidence that the driver had some foreknowledge that that might happen, in our submission, what the Court of Appeal has done at page 33, particularly between lines 5 and 10, is to create a responsibility which goes beyond any previous instance.

Your Honours, the second issue concerns the expression in section 14A that the bodily injury arises out of the use of the motor vehicle.  The approach to be taken to that phrase was dealt with by the Court in Dickinson v Motor Vehicle Insurance Trust, (1987) 163 CLR 500, and if I could take Your Honours to page 505, Your Honours will see the relevant part commencing in the paragraph at point 4 of the page. Your Honours, what appears from that are really two things: the first is that if Your Honours look at the first half of the paragraph, the Court says, as one might expect, that there are cases where the use of a motor vehicle may include times when the vehicle is not moving, and Your Honours will see the facts referred to after the citation of several cases.

The second thing which appears also, Your Honours, is this and it appears particularly, in our submission, from the reference to Fawcett v BHP By-Products Pty Limited, and to the particular passage referred to in footnote 14, that the Court also was recognising that not every event which occurs in relation to a motor vehicle will fall within section 14A.

If I could take Your Honours for just a moment to the passage from Fawcett, 104 CLR 80, that the Court refers to in footnote 14. Your Honours will see in footnote 14 the reference to page 87. It is clear, if one goes to page 87, in Justice Menzies’ reasons, at about point 7, the passage commencing:

The Act is not, I think, concerned with fine distinctions -

and goes to the bottom of the page and then just over to the top of page 88.  It is clear from that passage that what was being recognised, although events might happen in relation to a motor vehicle, to put it neutrally, it did not follow that the provision was satisfied. 

Your Honours, I should say one other thing:  the language used in Fawcett is perhaps a little dated by today’s standards of.....and so on but it makes clear the nature of the concept that was being referred to.

The view taken by the Court of Appeal in the present case appears at page 31 at the top of the page, lines 1 to 9.  Your Honours, the view there taken appears to amount to this, that what is sufficient to satisfy the test is that one is throwing something from a stationary vehicle.  So, the presence of the vehicle and the throwing something from it is sufficient to satisfy the test.

Your Honours, the terms of section 14A are relevantly the same in relation to South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, as well as New South Wales.  Your Honours, those are our submissions.

MASON CJ:   Thank you, Mr Jackson.  The Court need not trouble you, Mr Maconachie.

One argument sought to be raised in the proposed appeal is that there was no evidence of negligence on the part of the driver of the vehicle.  The point was not argued at the trial by counsel for the applicant and, on that score, it is not a question which merits the grant of special leave.

In any event, we consider that it was open to the Court of Appeal to conclude that “the inference is that all occupants of the car were taking part in the common enterprise of abusing and harassing the appellant.”  Throwing the missile was part of this enterprise.  Otherwise, the proposed appeal does not, in the view of the Court, enjoy sufficient prospects of success to warrant the grant of special leave.  The application is therefore refused.

MR MACONACHIE:   We would ask for costs.

MASON CJ:   You do not resist that, Mr Jackson?

MR JACKSON:   No, Your Honour.

MASON CJ:   The application is refused with costs.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE