Thompson v Wearing

IN THE SUPREME COURT
OF QUEENSLAND
No. 3778 of 1997
Brisbane
Before Mr Justice Ambrose
[Thompson v. Wearing & Ors]
BETWEEN

BRUCE MARTIN THOMPSON
Plaintiff

AND

BARRY LESLIE WEARING
First Defendant

AND

NRMA INSURANCE LIMITED (ACN 000016722)
Second Defendant

AND

NOMINAL DEFENDANT (QUEENSLAND)
Third Defendant

CATCHWORDS: CIVIL LAW - statutory construction - insurance indemnity - whether the first defendant had “fixed to” his van a trader’s plate within the meaning of s.12(10)(c) of the New South Wales Motor Accidents Act 1988 so as to keep the insurer on risk.

Motor Accidents Act 1988 (NSW)
Motor Accident Insurance Act 1994 (Qld)

Counsel:Mr R Dickson for the first defendant
Mr J Clifford Q.C. with him Mr M Daubney for the second defendant
Mr S Williams Q.C. for the third defendant

Solicitors: Price Roobottom for the first defendant
Quinlan Miller & Treston for the second defendant
Gadens for the third defendant

Hearing Date: 30 November 1998
REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered this 4th day of December 1998

In this case the plaintiff was seriously injured on 5 June 1996 when a truck which he was driving in a southerly direction along Pacific Highway in the Gold Coast area collided with a trailer being towed by a Toyota Hi Ace van being driven by the first defendant in a northerly direction. It appears from the material that as the first defendant was proceeding along the highway upon which construction work was being performed the trailer jackknifed across on to the southbound side of the highway as the plaintiff was driving his truck past it and the collision occurred.
As a result of the collision the towbar-gooseneck part of the coupling mechanism between the trailer and the van being driven by the first defendant was fractured. The trailer ended up off the shoulder of the southbound side of the highway and a Holden Commodore sedan which had been fastened to it broke free and ended up some distance from the trailer.
At the time of the impact the plaintiff’s truck was travelling at a speed of about 70 kph and the first defendant’s vehicle was travelling at about the same speed in the opposite direction. The impact between the trailer being driven by the first defendant and the truck being driven by the plaintiff was therefore a significant one and as a consequence, after the fracture of the coupling between the first defendant’s van and trailer, I infer that the first defendant’s van was spun completely around on the road in a clockwise direction until it came to rest facing in a southerly direction on the southbound side of the highway.
The plaintiff was seriously injured and was trapped in his damaged truck. The first defendant immediately alighted from his vehicle which had only the most minor damage done to it (apart from the towbar on the back) and took steps to disconnect the petrol supply to the motor of the plaintiff’s truck for safety purposes.
Shortly afterwards a number of police officers arrived to investigate the collision.
Thereafter the first defendant’s vehicles remained where they had come to rest for a short time until the first defendant moved his van further south to enable southbound traffic to proceed without obstruction. Thereafter his vehicles remained stationary - as did the plaintiff’s truck - for four or five hours while the plaintiff was rescued from his damaged truck and the police officers conducted investigations.
Eventually the Holden sedan that had been carried on the first defendant’s trailer was removed. Still later the first defendant’s van and trailer were removed to the Police Station at Coomera for examination.
At the time of the accident the first defendant was carrying on business in the Currumbin Valley as a motor vehicle wholesaler. For this purpose he obtained each December a Motor Dealer’s Trade Plate Registration Label; he had as well a Motor Vehicle Trader’s Plate which was numbered A5430. He gave evidence which I accept that he used this licence and trader’s plate from time to time when it was necessary for him to drive unregistered vehicles over public roadways.
On the day of the plaintiff’s injury the first defendant attached to his unregistered Toyota Hi Ace van fitted with a towbar his trailer onto which he loaded a Holden Commodore sedan which was in course of refurbishment and repair to tow that sedan to a workshop at Burleigh Heads where mudguards, doors and various other parts were to be attached to it before it was shipped off for sale at a motor auction room in Sydney. The first defendant’s plan was to leave also the Toyota Hi Ace van at the same place so that it too could be transported to the same motor auction room for sale. His wife was to drive a motor vehicle to the place at Burleigh Heads where the Hi Ace van and Holden Commodore sedan were to be left, from which he intended to tow his trailer back to his place of business in the Currumbin Valley.
Before commencing his trip from New South Wales into Queensland the first defendant had applied to the lower passenger side corner of the windscreen of his Hi Ace van the current trader’s plate registration label. He gave evidence that he had also pressed firmly into position in a relatively narrow depression between the windscreen and the top of the dashboard on the driver’s side of the van the motor vehicle trader’s plate bearing the number A5430. He said that it was necessary for him to apply a fair degree of force to push the trader’s plate into position because where it was held between the dashboard and the front windscreen there was a slight curve and as a consequence the plate which was of flat metal had to be bent slightly to fit into the “slot” under tension between the rather steep edge of the top of the dashboard and the internal side of the front windscreen. He said that it was his practice for a variety of reasons to carry a white towel across the top of the dashboard of vehicles he was driving and that he followed that practice on this particular day and in fact he forced one end of the white hand towel in between the rear of the trader’s plate and the front of the sloping dashboard nearest the windscreen to obtain an additional wedging effect between the rear of the motor vehicle trader’s plate and the steeply sloping front of the dashboard to force the trader’s plate against the bottom of the front windscreen.
It was strongly contended for the second defendant that I should not be satisfied on the balance of probabilities that the first defendant had fixed the motor vehicle trader’s plate in position in this way. It was suggested indeed that he did not even have the trader’s plate in his van at the time of the accident.
This contention was based on the fact that investigating policemen did not remember observing the trader’s plate in the van after the collision and the first defendant did not make mention of it (or the towel) to them. In my view the last thing that anybody at the scene of the collision would have directed attention to was the presence of the trader’s plate and towel on the passenger side seat or floor of the van. Indeed, Senior Constable Staines who investigated the collision said that at the time he was not interested in whether there was or was not a trader’s plate in or on the first defendant’s van. Senior Constable McQuaid the other policeman called by the second defendant did not bother even to look inside the van.
I have had regard to the content of the statement obtained (and apparently typed) by the Loss Assessor acting for the second defendant on 11 September 1996 where the first defendant is recorded as stating -
“I also had a NSW motor vehicle trade plate number A5430 sitting on the front dash board.”
Later the statement repeats -
“I also had a trade plate with the number A5430 on the front drivers side dash board.”
There is no suggestion that the first defendant was ever asked to elaborate as to just how the plate was “sitting on” the dashboard; he is certainly not recorded as saying it was “lying on” the dashboard.
Most of the statement (taken over a period of about 4 hours) deals with the events relating to the collision and no attempt was made to investigate matters relevant to whether the trader’s plate was “fixed to” the van.
I accept the evidence of the first defendant as to the manner and position in which he located and wedged the trader’s plate at the bottom driver’s side corner of the windscreen of his van.
He called evidence from his daughter and her flatmate to the effect that after the collision they attended the scene and in fact saw the first defendant remove the trader’s plate from the passenger side of the front area of the van. The first defendant himself said he could not recall specifically whether he removed the trader’s plate from the passenger seat at the front of the van or from the floor at the front of the van or indeed whether the numbers on the trader’s plate were facing upwards or downwards. For reasons of convenience, the first defendant had in fact taken the metal trader’s plate and enclosed it in a container with a carpet like substance on the back and a plastic surface on the front. This container had two velcrose strips attached to it to enable it to be attached to the exterior of some vehicles in such a way that when they travelled along the roadway the metallic motor vehicle trader’s plate would not scratch that part of the motor vehicle with which it came into contact.
According to the first defendant on the day in question he put the trader’s plate in the position to which I have referred so that people could see and identify his motor vehicle by reference to the numbers on the trader’s plate. He said that had he put it at the rear of the van, quite apart from the difficulty involved in attaching it to the rear of the van, nobody would have been able to see it from a distance of a couple of metres because of the proximity of the trailer to the rear of the van. On that trailer there was a chained down Holden Commodore sedan and it would have been quite impossible for anybody to see the motor vehicle trader’s plate if put in that position.
If on the other hand, the trader’s plate was located in the position to which the first defendant swore he did locate it and he identified in photographs the location of that trader’s plate at the relevant time, then it would clearly be visible if not to people at the rear of the vehicle, certainly to people looking at it from the front. The first defendant had taken a couple of photographs of the approximate location and appearance of the trader’s plates in his van long before there was any suggestion that the second defendant contemplated refusing to indemnify him. Much was made of the fact that these early photographs showed the trader’s plate perhaps 200 mm-300 mm closer to the passenger side of the vehicle than those which the first defendant said in evidence showed its location at the time of the collision. I accept the first defendant’s explanation for this difference and am not persuaded to reject his evidence solely on this ground.
There was some little discussion as to whether by putting the trader’s plate in that particular location, the first defendant would strictly comply with the requirements of the Traffic Regulations (both those applying in New South Wales and those applying in Queensland).
Having regard however to the only issue of liability debated between the defendants in this case that seems to me not a relevant consideration.
The issue of liability and quantum has been settled between the plaintiff and the first defendant.
The only issue remaining is that between the first defendant and the second defendant, the insurer said to be liable to indemnify the first defendant under the New South Wales Motor Accidents Act 1988. If the second defendant is not liable to indemnify the first defendant for reasons advanced in this case, then at the time of the collision in which the plaintiff was injured, the first defendant’s van was an uninsured motor vehicle and the Nominal Defendant (Queensland) will be liable under the Motor Accident Insurance Act 1994 (Qld).
It seems then that in this case, the first defendant and the third defendant have a similar interest to contend on the facts established in this case that the second defendant is obliged to indemnify the first defendant against his liability to the plaintiff..
The real issue to be determined is whether at the time of the collision in which the plaintiff suffered injury the trader’s plate to which I have referred was “fixed to” the Toyota Hi Ace van driven by the first defendant.
It is the contention of the second defendant that even accepting the evidence of the first defendant as to the manner in which he put the trader’s plate in position so that it might be displayed through the driver’s side windscreen of his motor vehicle it was not “fixed” to that motor vehicle. This involves simply a matter of statutory construction of the relevant section of the New South Wales Motor Accidents Act 1988. No authority was cited in which this matter has been considered.
Section 12(10) of that Act reads as follows -
“12(10) (Trader’s Plate) A licensed insurer is on risk in respect of a motor vehicle under a Third Party policy relating to a motor vehicle to which a trader’s plate is fixed:
(a)only during the period for which the policy is issued; and
(b)only during the period for which the trader’s plate is issued; and
(c)only while a traders plate is fixed to the vehicle.”
It is contended on behalf of the second defendant that while no doubt ss.12(10)(a) and (b) are satisfied the manner in which the first defendant held his trader’s plate in position in his motor vehicle as he drove it along the Pacific Highway did not amount to having it “fixed to” his van as required by s.12(10)(c).
It was contended for the second defendant that for the purposes of s.12(10) of the Act, the first defendant would have been indemnified - i.e. the second defendant would have been “on risk” - had instead of the first defendant wedging the trader’s plate into the position to which I have referred, he had tied it to the steering column inside the motor vehicle where it would have been quite invisible to any person not inside the vehicle. Indeed it was said that it would have been “fixed to” the vehicle and thus comply with the constraints of s.12(10) had it been tied or in some way fastened to a spare wheel of the van - wherever that might be carried - inside the van or perhaps underneath it.
It was contended however that even if the first defendant’s evidence be accepted that he did have it wedged or forced into the position to which I have referred, the fact that in the course of the accident, on his version of events, the trader’s plate was dislodged from that position in which it had apparently been held quite firmly for the distance travelled that day up to point of collision, it could not be said to have been “fixed to” the vehicle. Had it been “fixed to” the vehicle it is said its position on the vehicle could not have changed so that it ended up on the passenger side seat or floor of the van when it came to rest after the collision.
I was invited by counsel for the second defendant to conclude having regard to the evidence of the course taken by the first defendant’s van after the collision that the trader’s plate could not have ended up on the passenger side of the vehicle in any event. In the absence of expert evidence on the point I have some reservation about embarking upon considerations of this kind. Indeed I might tend to come to the contrary conclusion. The evidence indicates I think that the first defendant’s vehicle must have turned in a clockwise direction upon a significant impact so that it ended up facing in the opposite direction from that in which it had been travelling at time of collision. The impact must have been very severe because it fractured the coupling between the van and the trailer carrying the Holden Commodore leaving part of it on the roadway. I must say without expert evidence I may have concluded that the nature of that change of direction would have tended to eject the trader’s plate from the position in which it was wedged towards the passenger side of the van as it spun in a clockwise direction.
In any event, the only relevance of this consideration is the firmness with which the trader’s plate was held in position by wedging it into the space to which I have referred. It was suggested that had the plate been simply tied loosely under the steering wheel it would have been “fixed” to the van. Had the force of the impact caused the knot to break or undo or the velcrose strip to tear away from the material forming part of the housing for the strip, it could not be said for that reason only that the plate had not been “fixed to” the vehicle before it became “detached”.
Indeed one would wonder if the plate had been held against the windscreen by some sticky tape which may have fractured or come off as the result of the force applied to it in the course of the collision, it could be said that it had not been “fixed” to the vehicle.
Unless one reads something into s.12(10) to require it to be “immovably” fixed, I can see little justification for differentiating between holding a trader’s plate in a designated position by wedging it there and holding it in such a position by tying it to part of the vehicle in question.
There are a number of dictionary definitions to which reference was made in the course of argument. The Macquarie Dictionary defines the verb “to fix” inter alia in the following terms -
“To make fast firm or stable
To place definitely and more or less permanently.”
In the same dictionary the adjective “fixed” is defined -
“Made fast or firm; firmly implanted”
“Definitely and permanently placed; a fixed buoy”
The Shorter OED defines the verb “fixed” in the following terms -
“To fasten, make firm or stable; to set or place and secure against displacement.”
The adjective “fixed” is defined -
“Stationary or unchanging in relative position.”
It seems to be conceded by all parties involved in the case that at least one explanation for the terms of s.12(10) of the Act is the legislative intent that an insurer be at risk only in respect of one uninsured vehicle travelling on a roadway at a time where it gives an insurance cover in respect of a motor vehicle trader’s plate. The first defendant was obliged under the terms of the Motor Vehicles Regulations to have applied to the windscreen of the van the trader’s plate label. It was so designed as to be fairly readily transferable from one vehicle to another. As far as the Motor Accident Act is concerned however, it was clearly the intent of the Legislature to ensure that the person in the position of the first defendant could not get simply one trader’s plate for the simultaneous use of a number of unregistered vehicles. Each unregistered vehicle under the scheme of the Traffic Regulations and the Motor Accident Act at a time when it is taken on the road must have both the label applied to the windscreen and the trader’s plate “fixed to” it before the relevant insurer is at risk in respect of personal injury caused by that motor vehicle.
In my view it is permissible to look at the obvious purpose of the legislation in determining how and the extent to which trader’s plates must be “fixed to” an unregistered vehicle. It seems clearly to be the intent of persons supervising the use of trader’s plates that they be readily removable and perhaps identifiable immediately as trader’s plates by the method of their attachment if attached to the external part of the motor vehicle. Indeed the plaintiff gave evidence that on one occasion when he had actually bolted his trader’s plate to an uninsured vehicle when driving it on a highway he had been “chipped” by an officer of the department for “fixing” that plate so solidly to the vehicle. It was suggested he should simply use straps for the purpose of “fixing” the trader’s plate.

In my view, having regard to the dictionary definitions to which I have referred and to the purpose of s. 12(10) of the Act as I understand it - which was not really in dispute between the parties - it cannot be said that the steps taken by the first defendant to keep firmly and stably in position in his van his trader’s plate did not amount to “fixing it” to that van. The fact that as the result of a very severe impact that plate was dislodged does not necessarily lead to the conclusion that it had not been “fixed” to the vehicle. Had it been “tied to” and therefore “fixed to” the steering column of the vehicle and had the force of the impact caused the straps to break or to undo so that it was loosened from the column and ended up on the floor or front seat of the van, it seems to me it could not be said for that reason alone that it had never been “fixed to” the van for the purpose of s.12(10) of the Act.
If the first defendant simply placed the trader’s plate on the top of the dashboard or the seat or floor of the van where it rested and maintained its position only by reason of the force of gravity, it could not in my view be said to be “fixed to” the van.
On the facts of this case however the trader’s plate was held firmly in position by a combination of friction between its surface and that of the van, the tensioning force generated by the slight bending of the flat plate to accommodate it in the arching depression between the windscreen and the top of the dashboard next to it and the pressure exerted on the plate and the windscreen of that van by the wedging of the plate within the structural confines of its windscreen and dashboard by use of the towel.
I find that the trader’s plate numbered A5430 was fixed to the first defendant’s van within the meaning of s. 12(10) of Motor Accidents Act 1988 (NSW) when the trailer it was towing collided with the plaintiff ‘s truck resulting in his injury which is the subject of this action.
I give judgment for the first defendant against the second defendant on the indemnity proceedings between them. I will take submissions as to whether I should give judgment for the third defendant against the plaintiff having regard to the arrangement reached between the parties.
In light of the stand taken by the second defendant it was reasonable for the plaintiff to sue both the second and third defendants and for the first defendant to pursue its indemnity proceedings against the second defendant.
47 I will hear argument on the appropriate orders for costs in the circumstances, in light of this determination.

[1998] QSC 271

4 December 1998