Ravenscroft v. Warltier & The Nominal Defendant

DISTRICT COURT OF QUEENSLAND

CITATION:

Ravenscroft v Warltier & The Nominal Defendant [2007] QDC 176

PARTIES:

 Terrence Anthony Ravenscroft
(Plaintiff)

and

Troy Jason Warltier
(First Defendant)

and

The Nominal Defendant
(Second Defendant)

FILE NO/S:

D73 of 2004

DIVISION:

District Court Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 May 2007

DELIVERED AT:

Townsville

HEARING DATE:

14 December 2006

JUDGE:

Durward SC DCJ

ORDERS:

1. Judgment for the Plaintiff.
2. The Second Defendant pay to the Plaintiff by way of damages the sum of $75,000.00 inclusive of all statutory refunds and interest.

CATCHWORDS:

Whether or not the second defendant is liable and obliged to indemnify the first defendant - Motor Vehicle Insurance Act 1994 - Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 - Transport Operations (Road Use Management) Act 1995 – whether the second defendant is the insurer of the first defendant under the Motor Accident Insurance Act – collision “in a public place” – requirement for vehicle to be registered in order for indemnity to attach – statutory construction – whether words “in a public place” in section 5(2) Motor Accident Insurance Act have meaning and effect.

CITED CASES

Mosely v Atherton and Ors (2005) QDC 008; Gideona v Nominal Defendant (2006) 1 QR 31; Gideona v Suncorp Metway Insurance Limited (2005) QSC 275; Allianz Australia Insurance v GSF Australia Pty Ltd (2005) 79 ALR 1079; Mills v Meeking (1990) 169 CLR 214; Macalister v R (1990) 169 CLR 324; Luke v Inland Revenue Commissioners (1963) AC 557; R v PLV (2001) NSWCCA 282; Lewis v Hillhouse (2004) QSC 311.

COUNSEL:

R J Lynch for the plaintiff
K  Holyoak for the second defendant

SOLICITORS:

Gouldson Legal for the plaintiff
DLA Phillips Fox for the second defendant

1. The plaintiff, a pedestrian, suffered bodily injury when a motor cycle collided with him on a pathway in the Browns Plain locality near Brisbane on 19 June 2001.  He subsequently commenced an action for damages for personal injury and loss. 

1. The trial of the action commenced on 14 December 2006 in Brisbane.  By agreement, the proceeding was significantly shortened.  The facts relating to the incident in which the bodily harm was suffered were agreed between the parties.  The First Defendant’s negligence, subject to my determination of the liability issue, was admitted.  The quantum of damages was also agreed. 

AGREED STATEMENT OF FACTS

1. The agreed statement of facts between the Plaintiff and the Second Defendant are as follows:

“1.       On 19 June 2001, at or about 6.30pm:

(a)        The Plaintiff was a pedestrian walking on a concrete pathway in Grosvenor Park, Browns Plains, Queensland (“the pathway”);

(b)        The First Defendant was the driver and/or controller of a 1998 KLR Kawasaki 250cc motorcycle (“the motorcycle”);

(c)        The motorcycle was an off-road trail bike;

(d)        There was no CTP insurance subsisting in respect of the motorcycle for the purposes of the Motor Accidents Insurance Act 1994 (“MAIA”);

(e)        At the point on the pathway just…