Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd

[2012] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION:

Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd & Ors [2012] QSC 237

PARTIES:

SUNCORP METWAY INSURANCE LIMITED
(ABN 83 075 695 966)
(applicant)
v
WICKHAM FREIGHT LINES PTY LIMITED
(first respondent)
and
ANTHONY PHILLIP BUTLER
(second respondent)
and
KIEREN PAUL WESTON
(third respondent)

FILE NO:

BS5062 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2012

JUDGE:

Applegarth J

ORDERS:

1.    The application is dismissed.

2.    The applicant pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – Risks insured – Liability in respect of motor vehicles – where child injured in collision with prime mover and trailer in New South Wales – where prime mover and trailer insured by the applicant (“Suncorp”) pursuant to the Motor Accident Insurance Act 1994 (Qld) (“the Queensland Act”) – where the child in New South Wales proceedings claims damages pursuant to the “special entitlement” in s 7J Motor Accidents Compensation Act 1999 (NSW) (“the NSW Act”) – where s 7J of the NSW Act provides that in certain circumstances the injury is “deemed to have been caused by the fault of the owner or driver of a motor vehicle” – where the statutory insurance policy contained in the Queensland Act responds to injury caused by a “wrongful act or omission” – whether the statutory insurance policy contained in the Queensland Act responds to the child’s claim pursuant to s 7J of the NSW Act

Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 3B, 7J, 7K, 7L

Motor Accident Insurance Act 1994 (Qld), ss 3, 4, 5

Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, cited
Manteufel v QBE Insurance Ltd (2000) 21 Qld Lawyer Reps 32, considered

Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45, cited

COUNSEL:

R J Douglas SC and J M Sorbello for the applicant
M Grant-Taylor SC for the first and second respondents

SOLICITORS:

Curwoods Lawyers for the applicant
Cooper Grace Ward for the first and second respondents

1. The applicant/insurer (“Suncorp”) seeks declaratory relief concerning the proper construction of the statutory policy contained in the schedule to the Motor Accident Insurance Act 1994 (Qld) (“the Queensland Act”).

1. The first and second respondents are insured by a statutory policy issued by Suncorp under the Queensland Act. They are defendants in proceedings in the Supreme Court of New South Wales brought by Kieren Paul Weston (“Master Weston”). The first respondent was the registered owner and the second respondent was the driver of a prime mover that was involved in a collision with Master Weston on 22 July 2008 at Uralla on the New England Highway in New South Wales. Master Weston was 10 years old at the time. The proceedings that have been…