The Nominal Defendant v David Charles Edward Marsh, Salvatore Ruggiero and Anna Ruggiero and Vincenzo Ruggiero No. Scgrg-90-570 Number of Pages 17 Negligence

[1998] SASC 6806

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, MILLHOUSE AND NYLAND JJ

CATCHWORDS:

Negligence - road accident cases - liability of drivers of vehicles - failure to give warnings or signals - collision between motorcycle and tractor carrying plough which extended 2.2 metres to its rear - whether tractor was properly lit - whether the plaintiff was guilty of contributory negligence.

Partnership - actions by and against partners - whether the partners of the first defendant (the driver of the tractor) were liable for his negligence - whether the use of the tractor was with the authority of the partners.

Insurance - third-party liability insurance - motor vehicles - compulsory insurance legislation - uninsured vehicles - whether liability is imposed upon the Nominal Defendant in circumstances where there is no insurance policy in force, regardless of whether the legislation requires there to be a policy in force, or whether such liablity is imposed only where there is no policy in force and there is an obligation that there be a policy in force. MotorVehicles Act, 1959 (SA) ss12,99,102,116,PtIV, referred to. McIntyre v Nominal Defendant (1990) 11 MVR 279, considered.

HEARING:

ADELAIDE, 8 July 1998 (hearing), 21 August 1998 (decision)

#DATE 21:8:1998

APPEARANCES:

Appellant:

Counsel: Mr Michael Steele

Solicitors: Piper Alderman

Respondent Marsh:

Counsel: Mr Sydney W Tilmouth QC with Mr Frank Condon

Solicitors: Andersons

Respondents Salvatore, Anna and Vincenzo Ruggiero:

Counsel: Mr David Smith

Solicitors: Hume Taylor & Co

ORDER: appeal dismissed.

DOYLE CJ

1 The facts in this case are set out in the judgment of Millhouse J. I will not repeat them.

Negligence, contributory negligence and liability of partners

2 In my opinion the appeal against the finding that Salvatore Ruggiero was negligent in his driving of the tractor fails. I agree with the reasoning of the trial judge, which reasoning is summarised by Millhouse J. In particular, I agree with three findings which the trial judge made. He found:

"The tractor (with its plough extending some 2.2 metres to its rear) clearly presented something of a hazard at night to other traffic and it was important that the tractor should be properly lit. Instead it was improperly lit by a lighting combination which had the capacity to confuse and to mislead all but the alert and careful driver or rider in determining an appropriate response to the emerging scene. Even a rider who was alert and careful would face potential embarrassment before eventually reacting in an appropriate way to avoid the hazard."

A little later he found:

"However the first defendant did not exploit any opportunity to move off the bitumen and to stop in order to give the plaintiff clear passage. The actions of the first defendant demonstrate that he proceeded on his way without having regard for those roadusers who may be following him."

His view was summarised by the following short passage:

"I consider that the first defendant is liable in negligence in driving an improperly lit slow moving hazard without proper regard for the plaintiff." 3 I consider that those findings are soundly made, and support the judge's conclusion.

4 In my opinion the appeal by the plaintiff against the finding of contributory negligence fails. Once again, I agree with the findings of the trial judge. In particular, I agree with the following conclusion:

"Nevertheless I consider that the plaintiff was insufficiently alert and careful in relation to the situation as it developed ahead of him ... Although the situation facing the plaintiff was confusing, the plaintiff failed to exercise reasonable care for his own safety in the face of the developing situation. The facts speak for themselves in demonstrating that his lookout was insufficient."

As to the apportionment of liability, a court on appeal will be slow to differ from the assessment made by the trial judge. I see no reason to disturb the trial judge's view on contributory negligence.

5 In my opinion the appeal against the trial judge's finding that Salvatore Ruggiero's partners were liable for his negligence also fails. His partners were his wife and his son. The evidence about the ploughing being done by Salvatore Ruggiero on the day in question is to the effect that he was engaged in ploughing, for the purposes of weed-control, on land owned by the partners, but on a part of that land that was not used by the partners to grow almonds. The land was used by a sharefarmer, pursuant to a rather vague arrangement between the sharefarmer and Salvatore Ruggiero. The evidence about this arrangement was very sketchy. But, in my opinion, weed-control on the land was in the interests of the partnership, even though it also served the purpose of the arrangement with the sharefarmer. The ploughing was done with a tractor and plough that was the property of the partnership, and using partnership fuel. It was open to the judge to conclude, as he did, that Salvatore Ruggiero was ploughing the land with the authority of his partners. In my opinion that conclusion was readily open on the facts. Even if the tractor was not being driven home in the ordinary course of the business of the firm, in my opinion the use of the tractor on that day was with the authority of the partners, and that suffices.

Liability of Nominal Defendant

6 The liability of the nominal defendant is a more difficult question. The relevant legislative provisions appear in the judgment of Millhouse J.

7 It is helpful to identify the nature of the legislative scheme. The effect of the relevant statutory provisions is that in the case of death or injury caused by negligence in the use of a motor vehicle, the nominal defendant is liable to pay the damages that would otherwise have been payable by the driver of the motor vehicle, if the motor vehicle is an "uninsured motor vehicle". The purpose is clear enough. Whatever may be the precise meaning of the expression in question, the purpose is to ensure that a successful plaintiff will be able to recover damages even though the defendant is uninsured. If the legislature did not intervene, there would be many cases in which a successful plaintiff would be unable to enforce an award of damages against an uninsured driver. Parliament has intervened by substituting the nominal defendant for the uninsured driver. The nominal defendant pays the damages from a pool funded by insurers. The nominal defendant has a right of recovery from the uninsured driver, but the scheme ensures that the successful plaintiff will at least get his or her damages.

8 The purpose of the provisions is, therefore, to provide a defendant of substance to pay damages that would be payable by an uninsured defendant.

9 The general rule is that a motor vehicle must not be driven on a road or wharf unless a policy of insurance complying with Part IV of the MotorVehicles Act ("the Act") (I will refer to such a policy as a "complying policy") is in force. But s102 allows for two exceptions to that general rule. I will refer to the first simply as the tractor exception, and to the second simply as the interstate vehicle exception. It needs to be borne in mind that when a tractor is driven on a road relying upon the tractor exception, there may be no policy of insurance in respect of the tractor at all. On the other hand, when a vehicle is driven on a road pursuant to the interstate vehicle exception, there will of necessity be in force in another State or Territory a policy which provides insurance more or less identical to that provided by a complying policy.

10 The issue which arises, in connection with the liability of the nominal defendant, is this. Does s116 impose liability upon the nominal defendant only if the vehicle is being driven in circumstances such that it is obligatory that there be a complying policy in force, or does it apply if there is no complying policy, even though there is no obligation that there be a complying policy? To be more specific, and to draw on the present facts, does s116 apply if the tractor was being driven in circumstances such that s102 imposed no obligation to have a complying policy, or does it apply only if there was such an obligation and the obligation was breached?

11 In McIntyre v Nominal Defendant (1989) 50 SASR 518 Cox J considered these provisions. He said, referring to the relevant provisions (at 526):

"In my opinion, there was a clearly discernible legislative policy in the Act of 1959 of universal insurance or, to put it perhaps more accurately, of universal availability to a successful plaintiff of someone, insurer or nominal defendant, who would ensure that any judgment the plaintiff might recover for injuries received in a road accident would in the end, directly or indirectly, be satisfied: see, for example, Gassner v Frost [1940] SASR 295, 298; Baskerville v Martin [1967] SASR 156, 157-158. If there were exceptions to that general policy, they were few. It follows that if there is any ambiguity about the words 'required by this part' in s116, it should be resolved in favour of the general policy."

On appeal, McIntyre v Nominal Defendant (1990) 11 MVR 279 at 293, Olsson J expressly agreed. White J said nothing about the question of policy, although it might be said that his decision reflects a different approach. Millhouse J gave no reasons for dismissing the appeal from the decision of Cox J. I will return to this case a little later.

12 I agree with the view expressed by Cox J. In my opinion it is legitimate to approach the statutory provisions on the basis that the general purpose was to ensure that successful plaintiffs would have a defendant of substance to whom they could resort. However, it also has to be borne in mind that the precise issue is whether that was to be so only when the negligent driver should have been insured, or also when the negligent driver was not insured, and under no obligation to be insured.

13 I now turn to the statutory provisions.

14 Two meanings for s116 were advanced. The first, which the trial judge referred to as the adjectival construction, is that the words "as required by this Part" are simply descriptive of the type of policy there mentioned. In other words, the provision applies if a complying policy is not in force, and the application of the provision does not depend upon an obligation that a complying policy be in force. The second construction, which the trial judge called the adverbial construction, interprets the words "as required by this Part" as qualifying the words "in force". In other words, on this approach s116(1) applies when there is no complying policy in force as required by a legal obligation imposed by Part IV of the Act.

15 The trial judge observed that the particular form of words adopted pointed towards the adjectival construction. He made the point that the words "as required by this Part" appear immediately following the noun "policy" and appear to qualify that word. That suggests that they are words descriptive of the policy, words that simply refer to the type of policy, and of course that means a complying policy. He said:

"It seems to me that if the adverbial construction had been intended then convention would require that the qualifying phrase be placed after the verb so as to read-

'a motor vehicle in relation to which no policy of insurance is in force as required by this Part'.

If the adjectival construction is adopted then the phrase 'as required by this part' will be considered to mean 'of the type specified in by this part' (and grammatically qualifying 'policy of insurance'). If, however, the phrase is treated as adverbial then it will be construed to mean 'in accordance with the legal obligations imposed by this part.' (and grammatically qualifying 'is in force')."

(Original emphasis.) 16 I respectfully agree with the views of the trial judge. The matter identified by him is one that suggests that the language used is merely descriptive of the policy required.

17 However, there is another feature of the provisions that points the other way. Section 99(1) defines "policy of insurance" to mean "a policy of insurance that complies with this Part." "Complies" is here used in the sense of meeting the statutory criteria, and they can be found in s104. In s116(1) the reference is not to a policy of insurance that complies with Part IV, but to a policy of insurance "as required by this Part." The change of language is significant, and suggests that the reference is to an obligation to have a complying policy in force, and not to the mere absence of a complying policy. Indeed, s116 uses the defined expression "policy of insurance", and so there was no need to use words that would identify the type of policy required.

18 This consideration gains some added force from the fact that in 1959 s116(1) provided as follows:

"In this section 'uninsured motor vehicle' means a motor vehicle in relation to which no policy of insurance required to be issued under this Part is in force."

The language used is suggestive of an obligation to have a complying policy in force. The section was changed to its present form, subject to some other irrelevant changes, in 1971, when the legislation was altered to reflect the fact that a policy of insurance was no longer issued, the legislative scheme being effected by a statutory policy. Other definitions were altered at the same time to remove references to the issue of a policy.

19 But there is another feature of the legislation which, in my opinion, strongly favours the adjectival construction. If s116 refers to a situation in which Part IV requires that a complying policy be in force, the reference must be to the obligation imposed by s102. Both the obligation, the tractor exception and the interstate vehicle exception, are to be found in s102. If either exception applies, there is no obligation imposed by s102 to have in force a complying policy. It follows that there cannot be a situation in which a complying policy is required to be in force, if the motor vehicle falls within the exclusion identified in s116(1). If the motor vehicle falls within the exclusion identified in s116(1), it will of necessity fall within the interstate vehicle exception in s102(1), and so there will be no obligation to have in force a complying policy. If s116(1) refers to situations in which s102 requires that there be a complying policy, there is simply no need and no reason to make the exception that is made in s116(1). There is no need to make the exception because, in the case of a vehicle falling within the interstate vehicle exception, there will of necessity be in existence a policy of insurance in force in another State that provides adequate protection for a successful plaintiff.

20 The fact that the exception for an interstate vehicle is made in s116(1), strongly suggests that it applies when there is no complying policy in force and there is no obligation to have a complying policy. That is precisely the situation that arises when, relying on the interstate vehicle exception in s102(1), a motor vehicle is driven on the road. In that situation a complying policy will not be in force, and there will be no obligation that there be one in force. But, in my opinion, there is every reason to exclude that situation from s116(1), simply because there is no reason to impose an obligation on the nominal defendant. The successful plaintiff will be adequately protected by resort to the interstate insurer.

21 In my opinion, taking these textual considerations into account, and bearing in mind the legislative policy, the better view is that s116 does refer simply to the absence of a complying policy, and not to situations in which there is an obligation that there be a complying policy and an absence of a complying policy.

22 I now return to the decision of Cox J in McIntyre , and to the decision of the Full Court on appeal from him. In the passage that I have set out above, Cox J indicated that he favoured an approach consistent with that which I favour. He went on to say (at 526):

"Having in mind the desirability of restricting the incidence of uninsured vehicles on the road as much as possible, I should probably be prepared to hold, if need be, that 'as required by this Part' means much the same as 'complying with this Part', or even that Mr Martin is right in his submission that the words are merely descriptive of a type of insurance policy. However, I do not think that one needs to go that far."

23 Cox J went on to decide the case on the basis that the tractor in question should have been insured but was not insured. My understanding of his judgment, based upon the passage just set out, is that he was prepared to adopt what I have called the adjectival interpretation, were that necessary, but found it unnecessary to do so in the particular case. In McIntyre the nominal defendant would have been liable on either approach, because there was no complying policy and because there was an obligation to have a complying policy in force. In this respect, I must say that the judgment of Cox J is not entirely clear. However, I consider that that is what he meant.

24 The decision of the Full Court is to be considered in that light. The Full Court upheld the decision of Cox J. White J and Olsson J, who gave reasons for their conclusion, both addressed the issue of whether the circumstances were such that there was an obligation to have a complying policy in force in respect of the relevant tractor. It is true that it was unnecessary to do so, if the adjectival approach is the correct approach. The mere absence of a complying policy would suffice. But, in my opinion, the approach taken by the Full Court needs to be understood in light of the approach taken by Cox J.

25 White J said nothing about the statutory policy. His judgment is capable of being read as supporting the adverbial construction. Millhouse J gave no reasons for dismissing the appeal. Olsson J upheld the approach taken by Cox J. However, as I have earlier indicated, he expressly indicated his agreement with the view of Cox J about the legislative policy discernible in the Act.

26 In the present case the trial judge subjected the reasoning of Cox J and of the Full Court to close scrutiny. His Honour concluded as follows:

"Although in McIntyre the construction of s116(1) was considered, the question at issue was eventually approached in a way which did not expressly require determination of the issue which I have identified as being before me. Cox J (whilst clearly favouring the adjectival construction) responded in his judgment to the argument of counsel advanced upon the premise that s12 was to be applied. The Full Court, in upholding His Honour's reasoning, followed the same path as did Cox J with the result that I do not consider any clear ratio emerges upon the specific point with which I am now concerned.

In McIntyre whether the phrase in question be treated as adjectival or adverbial the same result would have been achieved in the particular factual situation upon either construction . In that case the tractor was not registered or insured and it was not driven in accordance with any exemption from the requirement to insure (and register). Therefore on any view of the matter (if Pt4 applies to exempt vehicles) the tractor was "uninsured" for the purposes of s116. (Cox J held that Pt4 did apply to exempt vehicles)."

(Original emphasis.)

27 I agree with the view expressed by the trial judge. I consider that the decision in McIntyre is not an obstacle to the adoption of the view that I prefer.

28 Accordingly, my view is that the trial judge was right in deciding that the tractor in question was an uninsured motor vehicle, because at the time of the accident in question a complying policy was not in force. It was an uninsured motor vehicle even though, as I will explain in a moment, s102 of the Act did not impose an obligation to have a complying policy in force.

29 In view of my conclusion that the absence of a complying policy is sufficient for the tractor to be an uninsured motor vehicle, it is not necessary to deal in any detail with the arguments, advanced by the partners, that the tractor was an uninsured motor vehicle in the sense of a vehicle in respect of which there should have been a complying policy of insurance in force, but there was not. I agree with the trial judge that those arguments should be rejected. I refer to the provisions of s12. The tractor was being driven within about one kilometre of the almond growing property on which Salvatore Ruggiero, his wife and son lived. On that property they grew almonds in partnership. This was clearly a farm occupied by the owner of the tractor. The tractor was making a journey to that farm. The tractor was carrying a farm implement. It follows, in my opinion, that the tractor was "being driven in pursuance of the provisions of s12(1)": see s102(1). The obligation to have in force a complying policy did not apply. It follows that the tractor was not an uninsured motor vehicle in the sense of a motor vehicle in respect of which there should have been in force, but was not, a complying policy.

Conclusions

30 In my opinion the appeal by the nominal defendant against the finding that it is liable and against the assessment of contributory negligence should be dismissed. The cross-appeal by the plaintiff against the finding of contributory negligence, and the assessment of contributory negligence, should be dismissed. The cross-appeal by the Ruggieros against the finding that Anna Ruggiero and Vincenzo Ruggiero are liable for the negligence of Salvatore Ruggiero should be dismissed. As appears from my reasoning, I reject the alternative contentions advanced by the plaintiff and by the Ruggieros in their respective notices of alternative contention.

NYLAND J

31 I agree with the reasons of the Chief Justice. I would dismiss the appeal by the Nominal Defendant against the finding of negligence and against the assessment of contributory negligence. I would dismiss the cross-appeal by the plaintiff with respect to contributory negligence. I would also dismiss the cross-appeal by the Ruggieros against the finding that Anna Ruggiero and Vincenzo Ruggiero are liable for the negligence of Salvatore Ruggiero. I also agree that the alternative contentions advanced by the plaintiff and by the Ruggieros by notices of alternative contention should be rejected.

Millhouse J

1 It happened over nine years ago, on 30 May 1989, a little after six o'clock in the evening when it was already dark.

2 Salvatore Ruggiero was going home along the Angle Vale Road. He was driving a tractor and suspended behind it, a plough. Ruggiero and his wife Anna and son Vincenzo were partners in growing almonds. They grew them on three separate blocks of land: the home block (owned in the names only of Mr and Mrs Ruggiero), the McGee Road block which was next to the home block and the Taylor Road block which was about two kilometres away. The last two blocks were owned in the names of all three members of the family.

3 Only part of the Taylor Road block was put to almonds, because of a water restriction. The rest of it was sewn to cereals by a share farmer or left fallow. The share farmer gave part of the crop to Ruggiero to help feed his chickens on the home block. The chickens and their eggs were produce for all the family.

4 On 30 May Ruggiero had been over at the Taylor Road block disc ploughing to keep down the weeds. I am not sure whether he ploughed between and around the almond trees as well as the part of the block not used for almonds or only one or the other. It does not matter. The weeds on the block had to be kept down if the almonds were to flourish. We heard arguments, as had Williams J at first instance, to the effect that Ruggiero was not on partnership business but "on a frolic of his own". I don't think that's right. He was working to encourage the almond trees by keeping the weeds down on the Taylor Road block. He was driving a tractor owned by all three Ruggiero's, using petrol, oil and lubricants (POL - an army abbreviation) bought with partnership money. As did the learned trial judge find, so do I assume, that he was working with the authority, implied at least, of his partner wife and son. That brings into play s10 of the Partnership Act:-

"10 Where, by any wrongful act or omission of any partner

acting in the ordinary course of the business of the firm,

or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act."

5 Now for what happened. To finish his work on the block in the dark  Ruggiero had switched on a working light which illuminated the plough. It was something like a spotlight. He left it on for the journey home. It was a white light angled down at 24§ from the horizontal and mounted between, but lower than, two red tail lights - one each mounted above the tractor mudguards. The headlights were on as well as what the learned judge described as "forward facing clearance lamps".

6 Because of its balloon tyres the tractor bounced a bit from side to side and up and down. Ruggiero drove entirely on the bitumen carriageway. There was to his left a verge on to which he could have moved but on which he could not have travelled continuously because of interruptions to the surface, such as a culvert. The learned judge found speed to have been something approaching 16kph. Ruggiero had no rear vision mirror.

7 The first respondent, Mr Marsh, was riding his motor cycle, with side-car, in the same direction as Ruggiero and behind him. They were both on a straight flat stretch of bitumen for about 2 kilometres. The speed limit was 110 kph. The learned judge found that Marsh "was probably not travelling more than 70 kph and certainly less than 80 kph" at impact.

8 He ran into the back of the plough, about in the middle. He was thrown some distance and sustained injury including brain damage. He was so injured as not to give evidence at trial. Evidence of where he had come from, his general movements and so on can only be reconstructed from other facts proved. [I should mention, too, that the learned judge was concerned only with liability: he was not asked to assess damages.]

9 The learned judge decided that Ruggiero was mostly responsible. He was driving slowly a lumbering farm vehicle and equipment at night, wholly on the carriageway of a quite busy straight flat bitumen road. He made no effort to drive to his left even partly off the bitumen, even for short distances. As he had no rear vision mirror he could not see what was coming behind him. The learned judge found the working light particularly misleading and confusing to anyone coming behind. Ironically Ruggiero had left it on thinking it would help those behind to see and realise what they were following. The single white light could easily mislead Marsh into thinking a car was approaching. Confused, he may have thought he should not move to his right to pass in case he should hit something oncoming.

10 On the other hand Marsh was approaching some lighted object in front of him. Perhaps he could have slowed down and moved over to his left, off the carriageway. As it was he smacked into the back of what was in front of him at high speed.

11 At trial the learned judge had heard a lot of evidence, including from the well known experts, Messrs Aust and Hall, called respectively by the opposing sides, about how the accident had happened. On appeal we listened to arguments on behalf of Ruggiero and Marsh, Sidney Tilmouth QC with Frank Condon for Marsh and David Smith for the Ruggerios. Mr Tilmouth argued that the tractor and plough made up a slow moving piece of agricultural equipment, at night on a busy road which Ruggiero must have known was used by fast moving traffic. It was wholly on the bitumen bouncing along. The working light was so misleading as to be a trap. Mr Tilmouth argued that either his client should be found without fault or at least not as much as 25% liable. Mr Smith replied that the accident was predominantly, if not wholly Marsh's fault: he was driving too fast and his lookout was defective: he should have known that farm vehicles could be on the road.

12 In my view the learned judge was right to find that Ruggiero was mainly responsible for the reasons put forward to us by Mr Tilmouth. On the other hand Marsh contributed to the tragedy by a combination of defective look out and speed.

13 What should the proportions be? As I remarked during argument it is very much a matter of impression. There is no way of fixing them with precision. The learned judge thought 75/25. He made no obvious mistake. I could not say that he was wrong. That being so I suggest that his apportionment should stand.

14 That was only one of the points argued. The next was the question of the vicarious liability of Mrs Ruggiero and the son Vincenzo. The argument on this was that Ruggiero was acting not as a member of the partnership but in his own interests. If he were not on partnership business then his partners were not liable for his negligence. He alone (or the Nominal Defendant) must bear the responsibility of paying damages assessed.

15 I have already expressed the view that Ruggiero was acting as a member of the partnership in taking the tractor, partnership property, powered by partnership POL to work on partnership land to encourage the growth of partnership almond trees. Even if the reward were grain from the share farmer to feed his chickens, kept on the home block registered in the name only of himself and of his wife, the produce from the chickens was enjoyed by all three partners. That being so, the three of them are liable for his negligence.

16 I suggest there is nothing in this point.

17 By far, though, the most difficult point argued was whether the tractor was an "uninsured vehicle" pursuant to Part IV of the Motor Vehicles Act.

18 The Nominal Defendant had been sued in the alternative by the plaintiff alleging that the tractor was an "uninsured motor vehicle". The learned judge so found and the Nominal Defendant has appealed. Mr Michael Steele appearing for the Nominal Defendant adopted Mr Smith's argument on liability and argued only the question of statutory interpretation.

19 It concerns the interpretation of several sections of the Motor VehiclesAct. I think my best plan is straightaway to set them out (or at least the relevant parts of each) as they were in 1989, at the time of the accident:

" 12. (1) A tractor may be driven without registration on roads within 40 kilometres of a farm occupied by the owner of the tractor on journeys to or from that farm for all or any of the following purposes, namely:

...

(c) drawing farm implements or carrying farm implements by

means of an attachment designed for that purpose;

...

(3) A farm implement may without registration or insurance

be drawn by a tractor ... on roads within 40 kilometres of a farm occupied by the owner of such tractor or motor vehicle.

...

(5) In this section 'farm implement' means an implement or machine for ploughing, cultivating, clearing or rolling land, sowing seed, spreading fertilizer, harvesting crops, spraying, chaffcutting, or other like operations ... ."

" PART IV.

THIRD PARTY INSURANCE

99 .(1) In this Part, unless the context otherwise requires ...

"insured motor vehicle" or "insured vehicle" means a

motor vehicle in relation to which a policy of insurance issued pursuant to this Part is in force:

...

"policy of insurance" means a policy of insurance that complies with this part: ...

102 . (1) A person shall not drive a motor vehicle on a road

... unless a policy of insurance complying with this Part

is in force in relation to that vehicle: Provided that this section shall not apply in respect of a tractor being driven in pursuance of the provisions of section 12 (1) or 13 until the Governor by proclamation declares that this section shall so apply. No such proclamation shall be made until the Governor is satisfied that the committee appointed under section 129 has fixed a uniform rate of premium for insurance in relation to farm tractors throughout the State.

(4) Subsection (1) of this section shall not apply to a person who, on any road, drives a motor vehicle, if -

(a) the motor vehicle is registered in a proclaimed

State or Territory of the Commonwealth or is otherwise permitted by the law of a proclaimed State or Territory of the Commonwealth to be driven on public roads within that proclaimed State or Territory;

and

( b) there is force in such State or Territory in respect

of such motor vehicle a policy of insurance--

(i) which complies with the law of such State or

or Territory;

and

(ii) under which the owner and the driver of the

motor vehicle are insured against liability which might be incurred by such owner or driver in respect of the death of, or bodily injury to, any person caused by or arising out of the use of such motor vehicle in this State.

104. In order to comply with this Part a policy of insurance

must insure the owner of the motor vehicle to which the policy relates, and any other person who at any time drives the vehicle, whether with or without the consent of the owner, in respect of all liability ... that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth. ...

116. (1) In this section:-

"uninsured motor vehicle" means a motor vehicle in

relation to which no policy of insurance as required by this Part is in force but does not include a motor vehicle in relation to which there is in force a policy of insurance --

(a) that complies with the law of some other State

or Territory of the Commonwealth;

and

(b) under which the owner and driver of the motor

or vehicle are insured against liability that might be incurred by either or both of them n respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the motor vehicle in this State.

(2) A person claiming damages in respect of death or bodily injury caused by negligence in the use of an uninsured motor vehicle on a road may bring an action for the recovery of those damages against the Nominal Defendant ...

(7) A sum properly paid by the Nominal Defendant to satisfy a claim made or judgment obtained against him under this section and his costs shall be recoverable by the Nominal Defendant from the driver of the motor vehicle or any person liable for the negligence of that driver:

Provided that it shall be a defence in an action under this subsection if the defendant satisfies the court that at the time of the accident :-

(a) he was the owner of the motor vehicle or was

driving the vehicle with the consent of the

owner; and

(b) that the he had reasonable grounds for

believing and did believe that the vehicle

was an insured motor vehicle."

20 Those are the sections canvassed in argument.

21 Only Part IV of the Motor Vehicles Act, 1959 requires insurance. This is clear by the language in sections 102 and 99, both of which speak of a 'policy of insurance that complies with this Part'. Section 104 sets out the requirements if the policy is to comply with sections 102 and 99, while also detailing who should be insured for what liability and arising out of what events. Section 104 does not deal with the requirement to insure.

22 Section 102, as relevant to this case, places an obligation on Ruggiero as the person driving the tractor, to have a complying policy. However, there is no obligation on a person driving a tractor to have such a policy if it is driven pursuant to section 12(1). As Ruggiero was carrying a plough, he came within section 12(1)(c). While section 12 appears to deal with the requirement to register, it must be read in the context of s102 which provides an added exemption for insurance.

23 Some clue may be gained from the history of these sections to determine what Parliament intended in a situation like the present. The 1971 amendment to section 116 saw the striking out from subsection (1) of the passage 'required to be issued under this Part': in place was inserted 'as required by this Part'. At the same time section 99 was amended to read 'policy of insurance means a policy of insurance that complies with this Part'. Before these amendments the Act spoke of issuing insurance. Indeed the original language of section 99 was 'Policy of insurance includes a cover note which is binding on the insurer'. A cover note is a note of the insurance issued by the insurer. With registration now comes compulsory insurance. No policy is physically issued. Mr Steele argued that the language was carefully chosen to remove the references to the issuing of a policy while at the same time making the distinction between compliance and requirement. I agree: the obligation to insure is pursuant to section 102 and the terms of insurance in order to comply are found in s104.

24 The key, though, is the definition of "uninsured motor vehicle" in s.116. "'uninsured motor vehicle' means a motor vehicle in relation to which no policy of insurance as required by this Part is in force ...". Particularly, is the phrase "as required by this Part" adjectival - merely descriptive of the kind of policy of insurance - or is it adverbial - does it impose an obligation to insure?

25 Ruggiero was driving a tractor in relation to which no policy of insurance was in force: it was uninsured. It met the requirements for exemption in s12(1): it was being driven within 40 kilometres of a farm occupied by the owner on a journey to that farm drawing a farm implement, thus coming within the proviso to s101. So there was no need to register it. There was no policy of insurance in relation to it. Therefore it was not an "insured motor vehicle" pursuant to s99 and s104 does not apply.

26 It was then, an uninsured motor vehicle - but was it an uninsured motor vehicle simply because it did not have a policy of insurance as required by Part IV of the Act? If the phrase in s116 is adjectival, merely descriptive of the sort of policy contemplated in Part IV, then the tractor falls within the definition of an "uninsured motor vehicle" in s116 simply because there was no policy and it was not required to have one.

27 If on the other hand the phrase is adverbial and there was a requirement for this tractor to have a policy of insurance - for example because it didn't meet (as in fact it did) all or some of the criteria in sections 12(1) and 102 - only then would it be an "uninsured motor vehicle". An "uninsured motor vehicle" would be one which would be required to have a policy of insurance but which did not. Ironically if the phrase is adverbial the Nominal Defendant could only be sued if Ruggiero had not complied and fallen within the stipulations of sections 12 and 102 and had been required to be insured.

28 Undoubtedly the definition of "uninsured motor vehicle" in s116(1) on its face is open to either interpretation. How then to decide? The question has been tackled before even if not finally decided.

29 Cox J at first instance and the Full Court of which I was a member, considered it in McIntyre v The Nominal Defendant and Anor ; Norwich Winterthur Insurance (Australia) Ltd (1989) 50 SASR 518. It was Cox J who met the problem head on. He solved it by reference to the legislative policy of the Motor Vehicles Act, 1959 (the Act with amendments to which I have been referring):

"In my opinion, there was a clearly discernible legislative policy in the act of 1959 of universal insurance or, to put it perhaps more accurately, of universal availability to a successful plaintiff of someone, insurer or Nominal Defendant, who would ensure that any judgment the plaintiff might recover for injuries received in a road accident would in the end, directly or indirectly, be satisfied: see, for example, Gassner v Frost [1940] SASR 295, 298; Baskerville v Martin [1967] SASR 156, 157-158. If there were exceptions to that general policy, they were few. It follows that if there is any ambiguity about the words 'required by this Part' in s 116, it should be resolved in favour of the general policy. Having in mind the desirability of restricting the incidence of uninsured vehicles on the road as much as possible, I should probably be prepared to hold, if need be, that 'as required by this Part' means much the same as 'complying with this Part', or even that Mr Martin is right in his submission that the words are merely descriptive of a type of insurance policy," (at 526).

30 The learned judge mentions two earlier cases. They are authority for what he said.

31 In Gassner v Frost, Napier J considered the Road Traffic Act 1936, the predecessor of the Motor Vehicles Act. [When the late Sir Edgar Bean retired as Parliamentary Draftsman in the late 1950s he generously offered, in retirement - I was present at the dinner in his honour at which he made the offer - to redraft free of charge to the Government the Road Traffic Act 1936. The offer was accepted and Sir Edgar split the old Road Traffic Act into two separate Acts - the Road Traffic Act 1959 dealing mainly with the rules of the road etc and a Motor Vehicles Act dealing mainly with administration.]  Napier J (at 298):-

"I think Parliament has provided for the insurance of motor vehicles with a view to ensuring that everybody, who is injured by the use of the vehicle, shall recover the fruits of any judgment that he obtains."

32 Bray CJ in Baskerville v Martin (at 157-158) confirms this is the policy of the Act.

33 I thought at the time that Cox J was right. When his judgment came on appeal to the Full Court I agreed that the appeal should be dismissed but I gave no reasons. Nor did I - and this was deliberate, to leave my options open against such a sequel as this - adopt the reasons either of my late brother White or of my brother Olsson.

34 I have now had second thoughts. Having read and read again s116(1) and his reasons I have come with hesitation - I always hesitate to differ with the view of so clear thinking and able a judge - to the conclusion that Cox J was wrong.

35 The effect of the adjectival interpretation is that the Nominal Defendant is liable to be sued if the vehicle be uninsured whether it should have been insured or not. What is decisive is the fact of being uninsured whether there was an obligation to insure or not. The effect of the adverbial interpretation is that the Nominal Defendant is liable to be sued only if the vehicle be uninsured and should have been insured.

36 Happily for the outcome in McIntyre v The Nominal Defendant the tractor was uninsured and should have been insured, so our final decision was correct.

37 A few sentences, though, after the extract from Cox J which I have cited, the learned judge went on:-

"The second defendant's tractor was thus an 'uninsured motor vehicle' at the time of the accident if, not in fact being insured, it was then being driven otherwise than in pursuance of the provisions of s 12. On that footing the plaintiff will get a judgment against the nominal defendant." (at 527).

38 On analysis it is evident that Cox J has applied the test required by the adverbial interpretation - the vehicle was uninsured and should have been insured.

39 Had he applied the adjectival interpretation which he favoured, the only test would have been that the vehicle was in fact uninsured: whether or not it should have been insured was irrelevant. I must confess that I did not pick the inconsistency up during McIntyre's Case and only just have.

40 The ratio of our decision turned on a matter of fact. The appellant McIntyre was not the occupier of the farm, his parents were, and therefore he did not satisfy all the criteria of s12(1). McIntyre's tractor should have been covered by a policy of insurance and it wasn't. Therefore I thought, following the reasoning of Cox J, that the Nominal Defendant could be sued. I now realise that it was the fact that the tractor was uninsured, without more, which brought in the Nominal Defendant. I came to the right conclusion for the wrong reason!

41 In this case Ruggiero did satisfy all the criteria of s12. He was therefore not required to have a policy of insurance. He was not insured and was not obliged to be insured but, applying the adjectival interpretation, it is the fact of lack of insurance alone which brings in the Nominal Defendant.

42 The Nominal Defendant was properly sued and is liable for 75% of Marsh's damages to be assessed. What may happen hereafter between the Nominal Defendant and the Ruggieros under s116(7) is another matter.

43 I suggest that the appeal be dismissed.