Dickinson v Motor Vehicle Insurance Trust

1. There be judgment for the plaintiff against the first defendant in the sum of $50,162 with costs.

(a) as to $1,242, to the solicitors for the plaintiff to be applied in payment of special damages;

(b) as to $48,920 to the Public Trustee within twenty-one days in satisfaction of the judgment in favour of the plaintiff for investment on behalf of the plaintiff until she attains the age of eighteen years or until further order of this Court with power to invest outside the common fund.

3. Declare that the plaintiff be entitled to be paid by the second defendant (third party) in the above manner such of the amount of the judgment entered against the first defendant including costs as is unsatisfied.

Renumber pars. 5 and 6 as pars. 4 and 5 respectively.

The Court delivered the following written judgment: -

Oct. 13 Mason C.J., Wilson, Brennan, Dawson and Toohey JJ.

The appellant, an infant, was severely burnt when the interior of her father's motor car caught fire. At the time the appellant was two years and two months old. She was a passenger in the car with her four and a half-year-old brother. Her father had parked the car temporarily in order to buy some records at a nearby record shop. Whilst the father was away, the appellant's brother began to play with a box of matches which he found between the two bucket seats in the front of the car. A floor mat caught alight and the fire spread. The brother managed to get out of the car, but the appellant, who was asleep, was trapped in it until she was rescued by a passer-by.

The appellant, suing by her next friend, commenced an action to recover damages for her injuries. She sued both her father and the respondent Trust, which was the father's insurer under a policy issued pursuant to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 W.A. ("the Act"). The claim against the respondent was for a declaration that the respondent was liable to pay such amount of any judgment against the father as was unsatisfied. By way of third party proceedings the father claimed an indemnity against the respondent.

The trial judge found negligence on the part of the father and awarded the appellant damages in the sum of $50,162. He gave judgment for that amount against both the father and the respondent. The judgment against the respondent was given in error, the liability of the respondent to the appellant under the Act being confined to such amount of the judgment against the father, an insured person, as was unsatisfied. At most the appellant was entitled to the declaration which she sought against the respondent. In the third party proceedings judgment was given in favour of the father against the respondent by way of indemnity against the liability of the father to the appellant.

The respondent appealed successfully to the Full Court of the Supreme Court of Western Australia and the judgments against it in the action and in the third party proceedings were set aside.

The appellant's claim for a declaration against the respondent was made pursuant to s. 7(1) of the Act which provides:

Any person who has obtained a judgment against an insured person in respect of death or bodily injury caused by negligence in the use of a motor vehicle specified in a policy of insurance under this Act may recover by action from the Trust such amount of the money (including costs or a proportionate part thereof) payable pursuant to the judgment as relates to death or bodily injury and is unsatisfied In speaking of "death or bodily injury caused by negligence in the use of a motor vehicle" this sub-section uses wording which is different from that used elsewhere in the Act. Under s. 4(1) every owner of a motor vehicle is required to:

(a) insure against any liability which may be incurred by him or any person who drives such motor vehicle in respect of the death of or bodily injury to any person caused by or arising out of the use of such motor vehicle; and

(b) for that purpose enter into a contract of insurance under this Act.

In order to comply with the Act, a policy of insurance must cover, amongst other things, "all liability for negligence which may be incurred 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": s. 6(1)(b). The policy under which the father claimed against the respondent in the third party proceedings was in that form.

The wording of s. 7(1) is the more curious when it is compared with s. 8(1) which provides that where judgment has been entered against the owner or driver of an uninsured motor vehicle " in respect of the death of or bodily injury to any person caused by or arising out of the use of that motor vehicle " and the liability would have been covered by insurance had there been a policy under the Act, the judgment creditor may recover against the Trust, to the extent that the judgment is unsatisfied, such amount as would have been payable under the policy.

At first sight, the words "death or bodily injury caused by negligence in the use of a motor vehicle" in s. 7(1) might appear to narrow the application of the sub-section to a situation in which liability arises from the negligent use of a motor vehicle. If that were so, then its scope would be less than that of the other provisions to which we have referred, because liability for negligence in respect of injury caused by or arising out of the use of a motor vehicle is not limited to injury caused by the negligent use of the vehicle. As Barwick C.J. pointed out in Government Insurance Office of N.S.W. v. R. J. Green & Lloyd Pty. Ltd. [1] , under the wider formula it is the injury which must be caused by or arise out of the use of the motor vehicle, not the liability for injury. The latter may arise from a tortious act other than the negligent use of a motor vehicle.

But as Burt C.J. observed in the Full Court below, there can be no reason why Parliament intended s. 7(1) to have a lesser scope than the other provisions. Having regard to s. 8(1) in particular, it is hardly likely that it was intended that the right of an injured person to recover against the Trust when an unsatisfied judgment is obtained against an insured driver should be more restricted than the right of such a person to recover from the Trust when the driver is uninsured. The question of the scope of s. 7(1) was somewhat academic in these proceedings, having regard to the claim for indemnity by the father pursuant to the insurance policy. Moreover, the respondent disavowed any narrow approach to s. 7(1), conceding that it should be given a construction consistent with the rest of the Act. For the purposes at least of these proceedings, it may therefore be assumed that s. 7(1) has an operation which is no different from that which it would have if it spoke of liability for negligence incurred in respect of injury caused by or arising out of the use of a motor vehicle.

This is, we think, of importance because the trial judge found that the negligence of the father consisted of leaving the appellant and her brother unattended in the motor car where the brother, at least, had ready access to a box of matches. Upon this view the motor car was merely a coincidental aspect of that negligence and the negligence did not arise out of the use of the motor car in any relevant sense. The vehicle was, adopting the words of Windeyer J. in Government Insurance Office of N.S.W. v. R J. Green & Lloyd Pty. Ltd. [2] , a mere "casual concomitant" of the breach of duty of care.

But, having regard to the terms of the policy issued pursuant to the Act and the concession made with regard to s. 7(1), the question is not whether the father's negligence was in the use of the motor car. It is whether the appellant's injuries were caused by or arose out of the use of the motor car. It is the failure to observe this distinction which appears to lie behind the decision of the Full Court and the submissions made on behalf of the respondent.

Whether or not the appellant's injuries were actually caused by the use of the motor car, it is sufficient to say that they arose out of such use. The test posited by the words "arising out of" is wider than that posited by the words "caused by" and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle: State Government Insurance Commission v. Stevens Bros. Pty. Ltd. [3] .

There can, in our view, be no doubt that the motor car was being used within the meaning of the Act at the time at which the appellant sustained her injuries. It was in use to carry the appellant and her brother as passengers in the course of a journey which was interrupted to enable the father to do some shopping. There is no suggestion that the interruption was other than temporary. "Use" for the purposes of the Act extends to everything that fairly falls within the conception of the use of a motor vehicle and may include a use which does not involve locomotion: Fawcett v. B.H.P. By-Products Pty. Ltd. [4] ; Government Insurance Office of N.S.W. v. R. J. Green & Lloyd Pty. Ltd. [5] ; Commercial & General Insurance Co. Ltd. v. Government Insurance Office (N.S.W.) [6] . Thus the occupation of the motor car by the appellant and her brother as passengers whilst the car was stationary and their father was absent, was a use of the vehicle within the meaning of the Act. The interior of the motor car caught fire whilst it was in use in that way. The injuries which the appellant sustained as a result arose out of that use. It is not to the point that the negligence of the father is said to consist in leaving the matches in the car and that that was not a relevant use of the vehicle. In any event it is arguable that the negligence of the father consisted in leaving the children in the car for the time he did when there was a box of matches in the car and that such leaving of the children in the car was a relevant use of the vehicle:State Government Insurance Commission v. Stevens Bros. Pty. Ltd. [7] ; Government Insurance Office of N.S.W. v. R. J. Green & Lloyd Pty. Ltd. [8] . The appellant did not, however, have to go so far. She was, therefore, entitled to the declaration which she sought against the respondent.

1. (1960) 104 C.L.R. 80, at p. 87. 2. (1966) 114 C.L.R., at pp. 441-442. 3. (1973) 129 C.L.R. 374, at p. 379. 4. (1984) 154 C.L.R., at pp. 556, 559. 5. (1966) 114 C.L.R., at pp. 441-442.