QBE Insurance Ltd v Shoobridge
[2000] TASSC 172
•15 December 2000
[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.
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 [77]
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 which fell for determination at first instance, so far as may be required for the purposes of this appeal.
Subject to the limits and exceptions contained in it, the policy of insurance issued by the appellant required the appellant to pay Mr Shoobridge all amounts he became legally liable to pay as compensation, as a result of an accident anywhere in the world which caused death, bodily injury or illness to any person, or loss or damage to property. The policy's cover was extremely wide and general. Subject to a consideration of the provisions of exclusion cl 5, it is clear that the appellant was obliged to indemnify Mr Shoobridge in the facts and circumstances of this case, because the plaintiff suffered bodily injury as a result of an accident and Mr Shoobridge had become legally liable to pay compensation to her as a consequence.
Exclusion cl 5 excluded the appellant's liability to indemnify Mr Shoobridge under the policy if his liability was one "arising out of the … use of a mechanically propelled vehicle …". If Mr Shoobridge's liability to the plaintiff to pay her damages arose out of the use of the utility, which was plainly a mechanically propelled vehicle, then the appellant was not liable to indemnify him.
The learned trial judge identified a line of cases where liability had been said to have arisen out of the use of a vehicle, notwithstanding that the vehicle was not in motion nor being used in the performance of the primary function for which it was designed. Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552, May v Transport Accident Commission [1989] VR 981 and Transport Accident Commission v Road Construction Authority [1990] VR 989. The circumstances of the last mentioned case were similar to those of this case and the learned trial judge considered it in some detail. His Honour then concluded that the plaintiff's injury undoubtedly arose out of the use of the float, and likewise out of the use of the utility. It followed therefore, in his Honour's mind, that Mr Shoobridge's liability to pay compensation to the plaintiff arose out of the use of the utility as well as out of the use of the float.
The learned trial judge then reached the following conclusion:
"The third party is entitled to rely on the exclusion clause to avoid liability on the basis that the injury arose out of the use of the utility, but once it is established that the insured was also liable on the basis that the plaintiff's injury arose out of the use of the float, it cannot, in my view, rely on the exclusion clause to avoid its obligation to indemnify the insured and the Board is entitled to recover from it."
With respect there is a plain error in that passage, as there was in an earlier passage in which his Honour said:
"Had the float itself not been a motor vehicle for the purposes of the Act, a sound argument exists for saying that, it being still attached to the utility which had drawn it there and was intended to draw it back in due course, the injury caused to the plaintiff when unloading the horse from the float was one arising out of the use of the utility as a composite whole."
In my opinion the learned trial judge fell into error by concentrating on the basis upon which the Motor Accidents Insurance Board may have been liable to indemnify Mr Shoobridge in accordance with the Motor Accidents (Liabilities and Compensation) Act 1973, s14(1). Essentially it did not matter why the Board was liable or may have been held liable, to indemnify Mr Shoobridge. Instead, the question to be determined was whether Mr Shoobridge's liability to pay damages to the injured plaintiff was, in the terms of the appellant's policy, a "liability … arising out of the … use of a mechanically propelled vehicle", which is what the utility was. Once his Honour had determined that the answer to that question was in the affirmative, he ought to have concluded that the appellant was not liable to indemnify Mr Shoobridge under the policy.
It could no doubt be said that there were many causes of the plaintiff's injuries and the consequent liability of Mr Shoobridge to pay compensation to her. His liability could be said to have arisen out of the use of the utility, out of the use of the float, out of the use of the horse, out of the use of the lead-rope, out of the use of the halter and possibly out of the use of other things. But once it was determined, and I think correctly so, that the liability arose out of the use of the utility, it followed that the exclusion clause operated and there ought to have been judgment in favour of the appellant.
I respectfully agree with all that has been said by Evans J in his reasons concerning why it should be held that the plaintiff's injuries (and therefore Mr Shoobridge's liability to the plaintiff) arose out of the use the utility.
It follows that it is my opinion that the appeal should be upheld and that there should be orders setting aside the judgment in favour of the Motor Accidents Insurance Board and substituting judgment for the appellant.
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
EVANS J
15 December 2000
In the following passage from the decision in Schaap v Shoobridge & Ors [1999] TASSC 149 which is the subject of this appeal, the learned trial judge concisely sets out the issues for determination and other relevant material:
"1 The issue I have to determine is whether the Motor Accidents Insurance Board ('the Board') is entitled, by virtue of the Motor Accidents (Liabilities and Compensation) Act 1974 ('the Act'), s14(4A), as it stood on 23 March 1995, to recover from the third party, QBE Insurance Ltd, the sum of $76,500, which sum represents the judgment debt and costs payable to the plaintiff by the first named defendant and in fact paid to her by the Board by virtue of its statutory obligation to indemnify the first named defendant.
2 The facts are not in dispute and can be stated shortly. On 23 March 1995, the plaintiff'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. It had been necessary to take the horse to a veterinary surgeon and the horse had been transported in a float which was drawn by a utility driven by the first named defendant. Both utility and float were motor vehicles within the meaning of the Act and the Board is liable to indemnify the first named defendant under the Act for any liability incurred by him or his estate arising out of the use of a motor vehicle. On arrival at the veterinary clinic, the utility was stopped, the plaintiff entered the float and placed her hand on the lead rope. The first named defendant undid the back door of the float and undid the safety bar, whereupon the horse fell out of the float and in doing so caused the plaintiff's thumb to be caught in the rope and injured. It is agreed between the parties that the plaintiff's injury was caused by the negligence of the first named defendant, that $76,500 is the reasonable measure of the plaintiff's entitlement to damages and costs in respect of her injury, that the Board agreed to indemnify the first named defendant in respect of his liability to the plaintiff on the basis that the horse float was a motor vehicle as defined by the Act, s2(1), that the horse float was not (a) fitted with any motor or other means of self-propulsion and was dependent for movement on either manual handling or towage by a motor vehicle or other vehicle equipped with a towbar and towball, or (b) a mechanically propelled vehicle for the purposes of the exclusion clause relied upon by the third party. It was further agreed that policy of insurance HO-0004914-HOM referred to in the pleadings and maintained by the first named defendant with the third party was current and in full force and effect as at the date of the plaintiff's injury.
3 The policy of insurance issued by the third party relevantly provided:
'QBE will pay all amounts You become LEGALLY LIABLE to pay as compensation:
Item 1
as a result of an accident anywhere in the World causing death or bodily injury or illness to any person or loss of or damage to property. Liability under this item for any one accident or series of accidents arising from one source or original cause is limited to $5,000,000 including all law costs and expenses incurred by you with the consent of QBE or recoverable from you by any claimant.
…
EXCLUSIONS
Item 1 of this Section does not cover liability:
…
5arising out of the ownership or use of a mechanically propelled vehicle (other than a garden appliance or golf buggy), power driven water craft or watercraft exceeding 3 metres in length, aircraft or aerial device.'
4 The Act relevantly provided at the time of the injury:
'14—(1) By virtue of this Act, but subject to and in accordance with the provisions thereof, the Board is bound to indemnify a person owning or using a motor vehicle, or his legal personal representatives, in respect of any liability (not being a contractual liability) incurred by him in respect of the death of, or bodily injury to, any person caused by or arising out of the use of that motor vehicle in this State on or after the appointed day.
(4A) Where the Board is under this section bound to indemnify a person in respect of a liability, it has, to the exclusion of that person, the like rights of contribution or indemnity in respect of that liability as were vested in that person.'"
The learned trial judge found that the liability of the first defendant to the plaintiff was inter alia a liability incurred by the first defendant in respect of an injury arising out of the use of the float. The float was a trailer within the meaning of the Traffic Act 1925, which relevantly defines a "trailer" as:
" … a contrivance -
(a)without motive power that is drawn or propelled or is capable of being drawn or propelled by a motor vehicle from which it is detachable; and
(b)that is equipped with wheels or revolving runners upon which it moves or is moved - …".
The float was also a motor vehicle for the purposes of the Motor Accidents (Liabilities and Compensation) Act 1974 ("the Act") as it provides that "'motor vehicle' means a motor vehicle or a trailer within the meaning of the Traffic Act 1925." As a result, his Honour found that pursuant to the Act, s14(1), the Board was obliged to indemnify the first defendant against his liability to the plaintiff and that, pursuant to the Act, s14(4A), his right of indemnity in respect of that liability under his policy of insurance with QBE Insurance Ltd was vested in the Board.
One of the matters relied on by QBE Insurance Ltd in denying an obligation to indemnify the Board or the first named defendant was the exclusion clause in the policy held by the first defendant which provided that it "does not cover liability … arising out of the … use of a mechanically propelled vehicle …". In rejecting this basis for denying liability, the learned judge said:
"The third party [QBE Insurance Ltd] relies on the exclusion clause, saying that the first defendant's liability arose out of the use of a mechanically propelled vehicle, namely the utility. There is a line of cases where liability has been said to have arisen out of the use of a vehicle, notwithstanding that the vehicle was not in motion nor being used in the performance of the primary function for which it was designed (Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, SGIO v Stevens Brothers Pty Ltd (1984) 154 CLR 552, May v Transport Accident Commission [1989] VR 981). Had the float itself not been a motor vehicle for the purposes of the Act, a sound argument exists for saying that, it being still attached to the utility which had drawn it there and was intended to draw it back in due course, the injury caused to the plaintiff when unloading the horse from the float was one arising out of the use of the utility as a composite whole. Such an argument succeeded in Transport Accident Commission v Road Construction Authority [1990] VR 989 where a line-marking machine was conveyed from place to place on a uninsured trailer attached to a truck. After the machine was driven onto the trailer on a ramp which was then raised as a tailgate, a worker was injured while raising the tailgate. The Full Court of Victoria held that the injury arose out of the use of the truck and also out of the use of the machine, both of them being insured. At 992, the Court (Kaye, McGarvie and Ormiston JJ) said:
'In the present case the truck could not be used to transport the machine by trailer to the road-marking site unless the machine was first loaded on the trailer. Loading the machine on to the trailer was as much an incident of using the truck to transport the machine by trailer as, in another case, loading an item on to the tray of a truck would be an incident of using the truck to transport the item upon its tray.
At the time of his injury Mason was engaged in the operation of loading which could not be regarded as completed until the ramp which had been let down to enable the machine to be loaded had been replaced in its normal position.
The Act is not concerned with fine distinctions and its reference to the use of a motor car should be taken as including everything that falls fairly within the conception of the use of a motor car: cf Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, at p 87, per Menzies J. It would be a departure from that approach to hold that the loading of the machine on to the trailer was not incidental to the use of the truck to transport the machine to the site because the machine was placed on the trailer not the truck, or because the trailer could be regarded as, and is treated in the Act as, being itself a vehicle. See the definition of "Private trailer" in s 3(1).'
…
10 In this case, the plaintiff's injury undoubtedly arose out of the use of the float, but I think it could also be said, as it was in Transport Accident Commission v Road Construction Authority (supra), that it likewise arose out of the use of the utility. In other words, there were two bases for the Board's liability, although it chose to confine itself to acceptance of liability in respect of the float. The third party is entitled to rely on the exclusion clause to avoid liability on the basis that the injury arose out of the use of the utility, but once it is established that the insured was also liable on the basis that the plaintiff's injury arose out of the use of the float, it cannot, in my view, rely on the exclusion clause to avoid its obligation to indemnify the insured and the Board is entitled to recover from it."
The learned judge found that the Board was entitled to a full indemnity from QBE Insurance Ltd in respect of the first defendant's liability to the plaintiff and judgment was entered accordingly. One of the grounds upon which QBE Insurance Ltd has appealed against the judgment is that the learned judge erred in holding that the exclusion clause did not apply in that:
(a)he erred in determining that the Board's decision to indemnify the first defendant on the basis that the plaintiff's injury arose out of the use of a trailer was relevant to whether QBE Insurance Ltd could rely on the exclusion clause;
(b)he erred in holding that because the plaintiff's injuries arose out of the use of a trailer, as well as out of the use of a motor vehicle, the exclusion clause did not apply; and,
(c)he erred in not holding that because the plaintiff's injuries arose out of the use of a motor vehicle, the exclusion clause applied regardless of whether or not the injuries also arose out of the use of a trailer.
His Honour found that there were two bases for the Board's liability to indemnify the first defendant. One was that the plaintiff's injury arose out of the use of the float, and the other was that the injury arose out of the use of the utility. He held that QBE Insurance Ltd was only entitled to rely on the exclusion clause to avoid liability on the basis that the injury arose out of the use of the utility. As the injury could also be said to have arisen from the use of the float, his Honour held the exclusion clause did not apply.
The exclusion clause refers to the cause of the liability, that is, a liability arising out of the use of a mechanically propelled vehicle. If the liability arose out of the use of a mechanically propelled vehicle and this was a proximate cause of the liability, in my view, QBE Insurance Ltd was entitled to rely on the exclusion even if there was another proximate cause for which liability was not excluded. The authorities for this proposition were not referred to the learned judge. They establish that where there are two or more proximate causes for an insurer's liability, one of which is within an exception to the policy, the insurer is absolved from liability. A convenient starting point in relation to this proposition is Lord Sumner's dissenting speech in P Samuel and Company, Limited v Dumas [1924] AC 43, in which he said, at 467:
"Where a loss is caused by two perils operating simultaneously at the time of loss and one is wholly excluded because the policy is warranted free of it, the question is whether it can be denied that the loss was so caused, for if not the warranty operates."
This passage was cited with approval by Morris LJ in Atlantic Maritime Co Inc v Given [1954] 1 QB 88 at 138, by Cairns and Roskill LJJ in Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] 1 QB 57 at 69 and 74, and by Slade LJ in JJ Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The "Miss Jay Jay") [1987] 1 Lloyd's Rep 32 at 40. Clarke J in City Centre Cold Store Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739 at 744, said that the passage should be regarded as established law. Roskill LJ in Wayne Tank (supra), at 75, said:
"I think the law in this respect is the same both for marine and non-marine, namely, that if the loss is caused by two causes effectively operating at the same time and one is wholly expressly excluded from the policy, the policy does not pay."
Sheller JA (agreed with by Beazley and Stein JJA) said in HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc and Another (1998) 43 NSWLR 601, at 612:
"Therefore, where there are competing proximate causes and loss from one is insured against and none of the others is expressly excluded, the insured is entitled to recover."
As I have said, the above authorities were not referred to the learned judge and, no doubt for this reason, he did not consider whether the two bases for the first defendant's liability which he identified were proximate causes for the liability. Had he been satisfied that the use of the utility was a proximate cause of the liability, then consistent with the authorities I have referred to, his Honour should have found that the exclusion applied to avoid liability under the policy. For two reasons I am not satisfied that this is sufficient to dispose of the appeal. In my opinion, the bases for liability identified by his Honour are not proximate causes of the liability, and I consider that the applicability of the exclusion clause should be assessed from a different standpoint than that taken by his Honour.
His Honour's finding of two different bases for the first defendant's liability is consistent with a number of authorities dealing with the issue of whether liability for an injury arose out of the use of a motor vehicle in the context of statutory, compulsory motor vehicle insurance schemes operating throughout Australia. It is well established that in a provision such as the Act, s14(1), as it was at the relevant time, the words "arising out of" are used in contrast to the words "caused by" and envisage a less proximate relationship between the injury and the use of the motor vehicle than is required to satisfy the words "caused by", Government Insurance Office of New South Wales v R J Green & Lloyd Pty Limited (1965 - 1966) 114 CLR 437; State Government Insurance Commission v Stevens Brothers Pty Limited and Another (1983 - 1984) 154 CLR 552, and Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500. In contrast, a proximate cause of a liability under an insurance policy must be direct, real or common-sense, dominant, operative or efficient, National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86 at 97. In Dickinson v The Motor Vehicle Insurance Trust (supra) at 505, Mason CJ, Wilson, Brennan, Dawson and Toohey JJ in their joint judgment, at 505, said:
"The test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle …"
In my view, the proximate cause of the first defendant's liability to the plaintiff was the manner in which he unloaded the horse float. I am not persuaded that there is a sufficiently direct relationship between his use of the utility and the liability to categorise that use as a proximate cause of the liability.
As I have already said, I consider that the applicability of the exclusion clause should be assessed from a different standpoint than that taken by his Honour. The precursor to his Honour's conclusion that the exclusion did not apply was his finding that there were two bases for the Board's liability to indemnify the first defendant in relation to the plaintiff's claim. It can be misleading to pay heed to that finding when determining QBE Insurance Ltd's liability. The Board's liability is governed by the terms of the statute to which it is subject, whilst QBE Insurance Ltd's liability is governed by the terms of its policy. A relevant pre-condition to the Board's liability is that the claimant's liability was incurred in respect of bodily injury "caused by or arising out of the use of [a] motor vehicle", the Act, s14(1). There is no similar pre-condition to QBE Insurance Ltd's liability to indemnify the first defendant under the policy, although the policy's exclusion clause will apply if the accident which gave rise to the liability arose out of the use of a mechanically propelled vehicle.
Upon the first defendant establishing that his liability to the plaintiff was within the scope of the cover provided to him under QBE Insurance Ltd's policy, the onus passed to QBE Insurance Ltd to establish that the exclusion clause applied, Trickett v Queensland Insurance Company Limited [1936] AC 159, PC, and Haileybury College v Emanuelli [1983] 1 VR 323. The determination of that issue involves focusing on the facts which gave rise to the liability, to assess whether the first defendant's liability to the plaintiff arose out of the use of a mechanically propelled vehicle. The manner in which the plaintiff formulated her claim against the first defendant cannot be decisive of the rights and liabilities of the parties to the insurance policy; West Wake Price & Co v Ching (supra) at 55 and 57, Murphy & Allen v Swinbank; Swinbank v Clearly (supra) and Rouleston Clarke Pty Ltd (In Liquidation) v FAI General Insurance Company Limited [1999] TASSC 150, par13. In construing the exclusion clause, the Court must ascertain the objective intention of the parties from a consideration of its wording. Regard must be had to the fact that it is contained in an insurance policy. The policy must be read in its commercial setting in such a way as to fulfil and not restrain its commercial purposes, MGICA Limited v United City Merchants (Australia) Limited & Anor (1986) 4 ANZ Ins Cas 74,340 at 74,349 and 74,350, Rouleston Clarke Pty Ltd (In Liquidation) v FAI General Insurance Company Limited [2000] TASSC 63, par16 and McCann v Switzerland Insurance Australia Limited [2000] HCA 65, par74. In my view, the objective intention of the parties to QBE Insurance Ltd's policy in the commercial setting from which it arose was to exclude from cover the sort of liabilities that are covered by the Act's compulsory insurance scheme. The terms of the exclusion clause reflect the terms used in the Act, s14(1), which section was central to the compulsory insurance scheme which, at that time, had operated for many years in Tasmania in relation to injuries caused by motor vehicles. Similar statutory schemes had also been in operation elsewhere in Australia. In broad terms, the schemes required compulsory insurance cover for owners and users of motor vehicles against liability for injury by accident caused by or arising out of the use of a motor vehicle. There is no logical reason for the first defendant to insure against a liability for which he was independently compulsorily insured pursuant to the Act.
In these circumstances, it is fitting to have regard to the construction which has been given to the words "arising out of the use of a motor vehicle" in authorities dealing with those words as they appear in the various statutory schemes. They have been construed as having a wide scope and covering everything that falls fairly within the conception of the use of a motor vehicle, Fawcett v BHP By-products Pty Limited (1960 - 1961) 104 CLR 80, and Transport Accident Commission v Road Construction Authority [1990] VR 989.
The first named defendant's liability to the plaintiff arose from the manner in which he unloaded the horse float. Whilst the float was not a motor vehicle, at the time of the accident it was being used in tandem with the utility which was a motor vehicle. Both vehicles were designed for use to transport items, and when so used, their loading or unloading was ordinarily an incident of that use. In Vaux v Law Union and Rock Insurance Co Ltd (1961) 78 WN (NSW) 588, it was held that the opening of the doors of a horse float, which was a motor vehicle, to enable livestock to be unloaded was a use of that vehicle. As his Honour said, a sound argument exists for saying that as the float was still attached to the utility which had towed it to the veterinary surgery and which was intended to tow it away in due course, the injury caused to the plaintiff when unloading the horse from the float was one arising out of the use of the utility (and the float) as a composite whole. Consistent with authorities to which his Honour referred, he found that the first defendant's liability to the plaintiff for her injuries arose out of the use of the utility. I agree with that finding and conclude that, as the liability arose out of the use of a mechanically propelled vehicle, the exclusion clause applies so as to enable QBE Insurance Ltd to deny liability.
For these reasons I would allow the appeal, set aside the judgment in favour of the Board against QBE Insurance Ltd and substitute a judgment for QBE Insurance Ltd.
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
BLOW J
15 December 2000
I agree with the reasons for judgment of Crawford J and Evans J, which I have read in draft form, and the orders they propose. I have nothing to add.
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