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Shepperbottom v TIO [2005] NTSC 81

PARTIES: SHEPPERBOTTOM, Lee Dennis

TERRITORY INSURANCE OFFICE

TITLE OF TRIBUNAL: MOTOR ACCIDENTS COMPENSATION TRIBUNAL

JURISDICTION: CIVIL

FILE NO: M2 of 2004 (20409939)

DELIVERED: 19 December 2005

HEARING DATES: 28 and 29 November 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MOTOR ACCIDENTS COMPENSATION – PERSONAL INJURIES

Reference to Motor Accidents (Compensation) Tribunal – liability of Territory Insurance Office - caused by or arising out of the use of a motor vehicle – whether the applicant used the motor vehicle in a manner creating a substantial risk of injury to the applicant – applicant riding in the back of a utility – hit by a falling branch – decision of the board set aside – applicant entitled to benefits

Anderson v Territory Insurance Office (1999) 126 NTR 16;
Darwin City Council v McDonnell and Ors (1998) 8 NTLR 106;
Fawcett v BHP By-products Pty Ltd (1960) 104 CLR 80;
Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437;
McMillan v Territory Insurance Office (1998) 57 NTR 24;
March v E & M Stramare (1991) 171 CLR 506;
Pollard v Territory Insurance Office (1997) 6 NTLR 142;
Shannon v Territory Insurance Office (1993) 3 NTLR 144, applied.

Motor Accidents (Compensation) Act s 4 and s 9(1)(e)

REPRESENTATION:

Counsel:
Applicant: G Clift
Respondent: I Nosworthy

Solicitors:
Applicant: De Silva Hebron
Respondent: Cridlands

Judgment category classification: B
Judgment ID Number: Sou0516
Number of pages: 27

IN THE MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
AT DARWIN

Shepperbottom v TIO [2005] NTSC 81
No. M2 of 2004 (20409939)

IN A MATTER under the
Motor Accidents Compensation Act

BETWEEN:

SHEPPERBOTTOM, Lee Dennis
Applicant

AND:

TERRITORY INSURANCE OFFICE
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 19 December 2005)

Background

[1] The applicant resides at Moulden in the Northern Territory. He works as a sales assistant in a fishing tackle shop. The applicant has a brother, Wayne Steven Shepperbottom. In August of 2003 both the applicant and his brother worked for Metroll. At 2.00 pm on Friday 15 August 2003, the applicant and his brother travelled from Darwin to Mr Eddie Page’s home at Kurlak Outstation which is located in the Daly River Region of the Northern Territory. They arrived at Mr Page’s home at about 6.30 pm. The applicant and his brother travelled to Mr Page’s home in his brother’s new dual cab, two wheel drive Hilux utility. The purpose of travelling to Mr Page’s home was so that they could go hunting and fishing the following day with Mr Page and his partner, Rachel.

[2] At 5.00 am on 16 August 2003 the applicant, his brother and Mr and Mrs Page travelled to a place called Chilluk near Wagon Wheel Swamp to go hunting magpie geese. They went hunting in an old single cab four wheel drive Hilux utility (the utility) that was also owned by the applicant’s brother. When they left Kurlak…

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: [2005] NTSC 81
Decision Date: 19 December 2005

CaseChat Overview and Summary

The case of Shepperbottom v TIO [2005] NTSC 81 involves a dispute between Lee Dennis Shepperbottom and the Territory Insurance Office (TIO) under the Motor Accidents Compensation Act. The applicant, Shepperbottom, sought compensation for injuries sustained during a hunting trip when he fell out of the back of a utility vehicle. The TIO denied his claim, arguing that Shepperbottom's use of the vehicle created a substantial risk of injury, and he disregarded that risk. The Motor Accidents Compensation Tribunal was tasked with determining whether the accident was caused by or arose out of the use of the motor vehicle and if Shepperbottom's actions excluded him from receiving benefits.

The court found that the accident was indeed caused by or arose out of the use of the utility vehicle. The forward motion of the vehicle contributed to the impact with the falling log and the force of that impact. Furthermore, the court concluded that Shepperbottom's use of the vehicle did not create a substantial risk of injury. He was seated in a manner that minimized risk, and there was no evidence that he was consciously aware of the risk or recklessly indifferent to it. The court set aside the decision of the Board of TIO and ordered that Shepperbottom was entitled to compensation for his injuries.

In its judgment, the Tribunal highlighted the importance of the broad and practical interpretation of the terms "caused by or arising out of the use of a motor vehicle" and emphasized the policy of the Act to ensure compensation for personal injuries in motor vehicle accidents. The court also underscored the need to differentiate between deliberate reckless behavior and mere contributory negligence, aligning with the purpose of the statutory provision excluding benefits.

Orders