Steven Leach v The Nominal Defendant (QBE Insurance Australia) Limited

[2015] HCASL 55

STEVEN LEACH

v

THE NOMINAL DEFENDANT (QBE INSURANCE AUSTRALIA) LIMITED

[2015] HCASL 55
S233/2014

1. The applicant was injured by gunshots fired from an uninsured car that collided with a vehicle in which the applicant was a passenger. 

2. On 6 June 2013, the District Court of New South Wales (Kearns DCJ) held that the respondent was not liable for damages in respect of the applicant's injuries. Kearns DCJ found that the applicant's injuries were not caused by the fault of the driver of the uninsured car in the use or operation of the car, nor as a result of the driving of the car, and therefore did not fall within s 3A of the Motor Accidents Compensation Act 1999 (NSW).

3. On 6 August 2014, the Court of Appeal of the Supreme Court of New South Wales (McColl and Gleeson JJA, and Sackville AJA) dismissed the applicant's appeal, holding that the gunfire was the dominant cause or that which was proximate in efficiency and the real effective cause of the applicant's injury. The fault of the driver of the uninsured car was held to be the mere occasion of the injury and thus not causative within the meaning of s 3A.

4. The applicant seeks special leave to appeal to this Court.  There is no reason to doubt the Court of Appeal's decision, or its application of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd[1].  It is unlikely that an appeal would raise a question of principle not already determined in that case.  The applicant has not identified sufficient grounds for holding that the Court of Appeal erred by distinguishing Nominal Defendant v Hawkins[2].  Therefore, there is no substance to the submission that there are inconsistent decisions of the Court of Appeal that require clarification by this Court.  Special leave is refused.

   [1] (2005) 221 CLR 568; [2005] HCA 26.

   [2] (2011) 58 MVR 362.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
9 April 2015 P.A. Keane