Schaap v Shoobridge - [1999] TASSC 149

[1999] TASSC 149

CITATION: Schaap v Shoobridge & Ors [1999] TASSC 149

PARTIES: SCHAAP, Cynthia Diane

v
SHOOBRIDGE, Peter by his personal representative
SHOOBRIDGE, Wendy Ann
MOTOR ACCIDENTS INSURANCE BOARD
QBE INSURANCE LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  750/1995
DELIVERED ON:  20 December 1999
DELIVERED AT:  Hobart
HEARING DATE:  13 October 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Traffic Law - Statutory compensation in respect of motor vehicle accidents - Tasmania - Bodily injury arising out of use of horse float - Whether statutory insurer can recover from insurer with exclusion clause in respect of vehicle drawing horse float.

Motor Accidents (Liabilities and Compensation) Act 1974 (Tas), ss2(1) and 14(4A).
Albion Insurance Company Limited v Government Insurance Office of New South Wales (1969) 121 CLR 342, referred to.
Aust Dig Traffic Law [171]

REPRESENTATION:

Counsel:
             1st & 2nd Defendants:  A J Denehey
             3rd Party:  S J D Knight
Solicitors:
             1st & 2nd Defendants:  Murdoch Clarke
             3rd Party:  Dobson Mitchell & Allport

Judgment Number: [1999] TASSC 149
Number of paragraphs: 12

Serial No 149/1999
File No 750/1995

CYNTHIA DIANE SCHAAP v PETER SHOOBRIDGE
BY HIS PERSONAL REPRESENTATIVE WENDY ANN SHOOBRIDGE and
MOTOR ACCIDENTS INSURANCE BOARD and QBE INSURANCE LTD

REASONS FOR JUDGMENT COX CJ
20 December 1999

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.

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…

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: [1999] TASSC 149
Decision Date: 20 December 1999

CaseChat Overview and Summary

In the case of Schaap v Shoobridge, the Supreme Court of Tasmania was called upon to determine whether the Motor Accidents Insurance Board (the "Board") could recover from QBE Insurance Ltd the sum of $76,500, which represented the judgment debt and costs payable to the plaintiff by the first defendant and paid by the Board. The plaintiff's thumb was amputated when it was caught in a lead rope attaching a horse to an anchor in a float, which was drawn by a utility driven by the first defendant. Both the utility and the float were motor vehicles under the Motor Accidents (Liabilities and Compensation) Act 1974 ("the Act"). The Board was liable to indemnify the first defendant for any liability incurred by him or his estate arising out of the use of a motor vehicle. The third party's policy of insurance included an exclusion clause that did not cover liability arising out of the ownership or use of a mechanically propelled vehicle.

The court considered whether the Board could recover the full amount from the third party, despite the exclusion clause in the third party's policy. The court found that the Board, by virtue of the Act, had the same rights of contribution or indemnity as were vested in the first defendant. The court rejected the argument that the Board could not recover more than the first defendant's entitlement under the policy, holding that the Board acquired the first defendant's rights against the third party before any payment was made. The court also found that the exclusion clause could not be relied upon to avoid the third party's obligation to indemnify the insured and the Board was entitled to recover from it. The court held that the Board was entitled to the full extent of the indemnity given by the third party's policy, overriding the common law right to contribution as between insurers of the same risk.

The court ultimately ruled in favour of the Board, awarding judgment against the third party in the sum of $76,500.

Orders