QBE Insurance (Australia) Ltd v Smith - [2005] NSWCA 130

CITATION:
QBE Insurance (Australia) Ltd. v. Smith by his next friend Avard & Anor. [2005] NSWCA 130

HEARING DATE(S):
6 April 2005

JUDGMENT DATE:

26 April 2005

JUDGMENT OF:
Hodgson JA at 1; Young CJ in Eq at 44; Campbell AJA at 56

DECISION:
1. Appeal dismissed. 2. Appellant to pay the respondents' costs of the application for leave and the appeal.

CATCHWORDS:
TORT - Negligence - Motor accident - Meaning of injury - Whether injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle - Whether the injury a result of the driving of the vehicle - Whether the injury caused during the driving of the vehicle - Meaning of driving.

CASES CITED:
Allianz Australia Insurance Ltd. v. GSF Australia Pty. Ltd. (2003) 57 NSWLR 321
Chapman v. Taylor (No.3) [2005] NSWCA 95
GLG Australia Pty. Ltd. v. The Nominal Defendant [2004] NSWCA 116
Gunter v State Transit Authority of NSW [2004] NSWCA 330
Insurance Commission of Western Australia v. Container Handlers Pty. Ltd. [2004] HCA 24, 78 ALJR 821
Prospect County Council v. Foster (2001) 33 MVR 228

PARTIES:
QBE Insurance (Australia) Limited - appellant
Nathaniel Maxwell Smith by his next friend Sue Avard - 1st respondent
Simon James Smith - 2nd respondent

FILE NUMBER(S):
CA 40612/04

COUNSEL:
Mr. P. Webb QC with Mr. B.G. Smith for appellant
Mr. P. Hennessy SC with Mr. M. Gilbert for 1st respondent
Mr. H. Marshall SC with Mr. T. Dixon for 2nd respondent

SOLICITORS:
Moray & Agnew, Sydney for appellant
Stacks, Port Macquarie for 1st respondent
Beilby Poulden Costello, Sydney for 2nd respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 10097/01

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

CA 40612/04
DC 10097/01

HODGSON JA
YOUNG CJ in Eq.
M.W CAMPBELL AJA
Tuesday 26 April 2005

QBE INSURANCE (AUSTRALIA) LIMITED V. Nathaniel Maxwell SMITH by his next friend SUE AVARD & ANOR.

HEADNOTE

FACTS

On 21 January 2000, the first respondent’s father, Mr Smith, was driving a truck towing a trailer that contained a boat towards certain premises. The first respondent (N), who was nine years old at the time, was sitting alongside his father as a passenger.

Mr Smith pulled the truck to a stop on the side of the road across from the gate of the premises, and, leaving the engine running, asked N to cross the road to open the gate of the premises to which the boat was to be taken. When N ran in front of the truck on to the road he was hit by a vehicle heading in the same direction as the truck, driven by Mr Jennings.

N, by a tutor sued both Mr Jennings and Mr Smith for damages for injuries sustained by the accident. Mr Jennings cross-claimed against Mr Smith for indemnity and/or contribution, and Mr Smith cross-claimed against QBE Insurance (Australia) Limited (QBE) seeking indemnity under an insurance policy.

The proceedings between N and Mr Jennings…

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: [2005] NSWCA 130
Decision Date: 26 April 2005

CaseChat Overview and Summary

QBE Insurance (Australia) Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim for damages arising from a motor vehicle accident. The dispute centred on whether the respondent's injury was caused by the fault of the owner or driver of a motor vehicle in its use or operation, and whether the injury was a result of or occurred during the driving of the vehicle.

The Court of Appeal was required to determine the meaning of "driving" in the context of the relevant legislation, specifically whether an injury sustained by a passenger when a vehicle was stationary but with its engine running, and the driver was attempting to adjust the vehicle's position, constituted an injury caused by the driving of the vehicle. The court also considered whether the injury was a result of the use or operation of the vehicle.

The Court of Appeal dismissed the appeal, upholding the primary judge's finding. The court reasoned that the term "driving" encompassed not only the physical act of steering and propelling a vehicle but also the broader activities associated with operating a vehicle in a particular situation. In this instance, the driver's actions, including attempting to reposition the stationary vehicle with the engine running, were considered part of the driving process. Consequently, the injury sustained by the respondent was found to have arisen from the driving of the vehicle. The appellant was ordered to pay the respondents' costs.

Orders

Orders of the court

1. Appeal dismissed. 2. Appellant to pay the respondents' costs of the application for leave and the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	QBE Insurance (Australia) Ltd. v. Smith by his next friend Avard & Anor. [2005] NSWCA 130
HEARING DATE(S):	6 April 2005
JUDGMENT DATE:	26 April 2005
JUDGMENT OF:	Hodgson JA at 1; Young CJ in Eq at 44; Campbell AJA at 56
DECISION:	1. Appeal dismissed. 2. Appellant to pay the respondents' costs of the application for leave and the appeal.

CATCHWORDS:	TORT - Negligence - Motor accident - Meaning of injury - Whether injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle - Whether the injury a result of the driving of the vehicle - Whether the injury caused during the driving of the vehicle - Meaning of driving.
CASES CITED:	Allianz Australia Insurance Ltd. v. GSF Australia Pty. Ltd. (2003) 57 NSWLR 321 Chapman v. Taylor (No.3) [2005] NSWCA 95 GLG Australia Pty. Ltd. v. The Nominal Defendant [2004] NSWCA 116 Gunter v State Transit Authority of NSW [2004] NSWCA 330 Insurance Commission of Western Australia v. Container Handlers Pty. Ltd. [2004] HCA 24, 78 ALJR 821 Prospect County Council v. Foster (2001) 33 MVR 228
PARTIES:	QBE Insurance (Australia) Limited - appellant Nathaniel Maxwell Smith by his next friend Sue Avard - 1st respondent Simon James Smith - 2nd respondent
FILE NUMBER(S):	CA 40612/04
COUNSEL:	Mr. P. Webb QC with Mr. B.G. Smith for appellant Mr. P. Hennessy SC with Mr. M. Gilbert for 1st respondent Mr. H. Marshall SC with Mr. T. Dixon for 2nd respondent
SOLICITORS:	Moray & Agnew, Sydney for appellant Stacks, Port Macquarie for 1st respondent Beilby Poulden Costello, Sydney for 2nd respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10097/01
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ