QBE Insurance (Australia) Ltd v Smith

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.