QBE Insurance Ltd v Shoobridge - [2000] TASSC 172

[2000] TASSC 172

CITATION: QBE Insurance Ltd v Shoobridge & Ors [2000] TASSC 172

PARTIES:  QBE INSURANCE LTD
  v
  SHOOBRIDGE, Peter
  by his personal representative
  SHOOBRIDGE, Wendy Anne
  MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 2/2000
DELIVERED ON:  15 December 2000
DELIVERED AT:  Hobart
HEARING DATE/S:  31 August 2000
JUDGMENT OF:  Crawford, Evans and Blow JJ

CATCHWORDS:

Insurance - Third-party liability insurance - Motor vehicles - Compulsory insurance legislation - Other cases - Tasmania - Right of Motor Accidents Insurance Board to exercise insured's right of indemnity under public liability policy - Exclusion of liability arising out of use of mechanically propelled vehicle - Injury by accident when unloading horse float which had just been towed by mechanically propelled vehicle.
Motor Accidents (Liabilities and Compensation) Act 1974 (Tas), s14(4A).

Government Insurance Office of New South Wales v R J Green & Lloyd Pty Ltd (1965 - 1966) 114 CLR 437; State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80; Transport Accident Commission v Road Construction Authority [1990] VR 989, referred to.
Aust Dig Insurance [72]

Insurance - Third-party liability insurance - Other third-party liability insurance - Public liability policy - Exclusion of liability arising out of use of mechanically propelled vehicle - Injury by accident when unloading horse float which had just been towed by mechanically propelled vehicle - Whether risk excluded.

REPRESENTATION:

Counsel:
             Appellant:  R C MacKay
             Second Respondent:  A J Denehey
Solicitors:
             Appellant:  Dobson Mitchell & Allport
             Second Respondent:  Murdoch Clarke

Judgment ID Number: [2000] TASSC 172
Number of paragraphs: 23

Serial No 172/2000
File No FCA 2/2000

QBE INSURANCE LTD v PETER SHOOBRIDGE BY HIS PERSONAL
REPRESENTATIVE WENDY ANNE SHOOBRIDGE and the
MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
EVANS J
BLOW J
15 December 2000

Orders of the Court:

Appeal allowed.

Order setting aside judgment for the Motor Accidents Insurance Board against QBE Insurance Ltd.

Order that there be judgment for QBE Insurance Ltd against the Motor Accidents Insurance Board.
Serial No 172/2000
File No FCA 2/2000

QBE INSURANCE LTD v PETER SHOOBRIDGE BY HIS PERSONAL REPRESENTATIVE WENDY ANNE SHOOBRIDGE and the
MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  15 December 2000

I have had the advantage of reading in draft the reasons for judgment of Evans J, which conveniently contain the facts and issues…

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: [2000] TASSC 172
Decision Date: 15 December 2000

CaseChat Overview and Summary

QBE Insurance Ltd brought this appeal against a decision of the Supreme Court of Tasmania, which found that QBE Insurance Ltd was liable to indemnify the Motor Accidents Insurance Board (the Board) for damages paid by the Board to a woman injured by Peter Shoobridge. The woman's thumb was amputated when it was caught up in a lead rope attaching the halter of a horse to an anchor in a float. The horse had been transported in the float, which was drawn by a utility driven by Mr Shoobridge. The Full Court of the Supreme Court allowed the appeal and held that QBE Insurance Ltd was not liable to indemnify Mr Shoobridge for his liability to the woman. The court held that the exclusion clause in the insurance policy excluded liability arising out of the use of a mechanically propelled vehicle. The injury was caused by the manner in which Mr Shoobridge unloaded the horse float, which was not a mechanically propelled vehicle. However, at the time of the accident, the float was being used in tandem with the utility, which was a mechanically propelled vehicle. The injury arose out of the use of the utility, and therefore, the exclusion clause applied to exclude QBE Insurance Ltd's liability to indemnify Mr Shoobridge.

Orders