Government Insurance Office (NSW) v King

But there is in my opinion a distinction between using a car and putting it in order for some subsequent use. This broad distinction may sometimes be difficult to apply because so many things are incidental to or arise out of the present use of a motor vehicle which if isolated from the circumstance might look as if the use of the vehicle had been abandoned or suspended for the purpose of repairing or adjusting it. But it must always be kept in mind that all the incidents attending the actual use of the vehicle form part of its use. In this case however the facts suggest that the accident was not caused in the course of a present use of the car or attempt to use it, but in the final stages of a repair or adjustment made for the purpose of putting it in order for subsequent use. At all events no proof that it fell within the former and not the latter description was advanced. I do not set out the facts because they are fully stated in the judgment of Menzies J. which I have had the advantage of reading and in which I entirely agree.

In my opinion the appeal should be allowed. I agree with the reasons for judgment of my brother Windeyer, and feel I could not usefully add anything to them.

I agree in what has been said by the Chief Justice, and accordingly in the judgment of my brother Menzies.

One of the difficulties about this case is that all the significant facts have not been ascertained. It was natural - indeed, inevitable - that in the action by King against Smith in the Supreme Court of New South Wales for damages for bodily injuries, no attention should have been given to the facts upon which any liability of The Government Insurance Office of New South Wales to indemnify the defendant Smith under the third party insurance policy issued to him would depend. The action King v. Smith resulted in a verdict for £500 damages and judgment for the plaintiff for that sum, together with £181 1s. 2d. costs. This judgment was not satisfied. Thereupon King, pursuant to s. 15 (1) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951, applied to enter judgment against the Government Insurance Office for the amount of his unsatisfied judgment against Smith. He made this application on the footing that his judgment against Smith was a "judgment in respect of bodily injury to any person caused by or arising out of the use of an insured motor vehicle". In these proceedings, there was no full investigation of the facts upon which the liability of the Government Insurance Office depended, because it seems to have been assumed that it was by reference to the earlier proceedings by King against Smith that it was to be determined in the instant proceedings both (1) whether judgment had been obtained in respect of bodily injury to King, and (2) whether that injury was caused by or arose out of the use of an insured motor vehicle. It is, of course, clear that it is only by looking at the proceedings in the action King v. Smith that it can be determined whether King obtained judgment in respect of bodily injury, but it seems to me it cannot be by resort to these proceedings that it is to be determined whether that injury was caused by or arose out of the use of an insured motor vehicle. The action was not concerned with this matter at all. Mr. Langsworth, for King, did indeed argue that the question was to be determined by reference to the pleadings and verdict in the earlier proceedings and by reference to these alone, but, if his argument were to be accepted, he would be bound to fail because, apart from anything else, it does not appear from those sources that the action had any connexion with an insured motor vehicle. As I understand s. 15 (1) (a), it commits to the court deciding the application thereunder the responsibility of determining for itself upon any relevant material submitted to it whether bodily injury in respect of which judgment has been obtained was caused by or did arise out of the use of an insured motor vehicle. To put this in terms of the construction of s. 15 (1) (a), I would say that whereas the words "in respect of the death of or bodily injury to any person" do constitute a description of the judgment obtained, the words "caused by or arising out of the use of an insured motor vehicle" do not describe the judgment but qualify the words "death or bodily injury". In the proceedings before Collins J., who heard King's application, there were admissions that the Government Insurance Office was the authorized insurer of Smith's motor vehicle under a policy in accordance with the Act, and that the requisite notice had been given; but for the determination of the question whether King's bodily injuries arose out of the use of Smith's motor vehicle, the learned judge had nothing beyond an affidavit by King's solicitor and the full transcript of the proceedings in the action King v. Smith. How that transcript became part of these proceedings does not appear, but it seems to have been common ground that it did. The affidavit contained the following summary of what occurred when King was injured: "On the sixth day of April 1954 the defendant had fitted a new diaphragm into the carburettor of his Ford V8 motor car which was standing in Antill Street, Mayfield. To start the car the defendant had removed the air cleaner and poured petrol from a quart tin straight down the funnel to prime the carburettor. He then got into the driver's seat of the car, pressed the self-starter and the car started and then stopped. His brother who was assisting him then picked up the tin and poured the petrol into the spout while the defendant pressed the self-starter of the car. The car engine started and the defendant was "revving it" as his brother still poured in petrol. A sheet of flame came out of the spout of the funnel and set the tin of petrol on fire. While this occurred the plaintiff was standing about six feet away from the car in Antill Street and had commenced to walk forward to tell the defendant's brother to stop pouring petrol or stop the motor. When the petrol ignited the defendant's brother threw the lighted can of petrol which poured on to the plaintiff causing injuries complained of." In the course of his judgment, his Honour, after setting out the pleadings in King v. Smith and referring to the hearing of that action, said: "The evidence on which the plaintiff relied was to the following effect: a motor vehicle had stalled and endeavours were being made to put it into motion again. While a person, who was described as the defendant's brother, was priming the carburettor by pouring in petrol from a container, the defendant, who was seated in the driving seat, attempted to start the engine. Thereupon the petrol ignited and the defendant's brother cast the container from him. The container struck the plaintiff, standing in the vicinity, and he became enveloped in the burning petrol and suffered bodily injury from burns. The defendant called no evidence. The learned trial judge left to the jury the issue as to whether the defendant was guilty of negligence in attempting to start the engine of the vehicle while petrol was being poured into the carburettor. The jury returned a verdict for the plaintiff for the sum of £500." His Honour thereupon decided that King's judgment against Smith was in respect of bodily injury caused by or arising out of the use of Smith's motor vehicle and granted the application. The Full Court (Herron and Sugerman JJ., Else-Mitchell J. dissenting) affirmed his decision [1] .

At this point I think I should set out the facts upon which I consider the application fell to be decided - facts which I have gathered from the affidavit aforesaid and the record and transcript of proceedings in King v. Smith. Smith lived at No. 9 Antill Street, Mayfield. On 6th April 1954 his Ford V8 car was parked in Antill Street in front of No. 11, the home of King. When it was parked there is not known. While it was parked there, Smith at some time unknown but before 3.30 p.m. made some repairs to the car. To use the language of the affidavit already quoted: "On the sixth day of April 1954 the defendant had fitted a new diaphragm into the carburettor of his Ford V8 motor car which was standing in Antill Street, Mayfield". At about 3.30 in the afternoon of the 6th April, Smith attempted to start the engine of the car. Whether he was doing so for the purpose of testing the efficacy of his repairs or preparatory to driving away or for some other purpose is not known. The method Smith adopted to start the engine was to pour petrol from a tin through a funnel into the carburettor and then to use the self-starter. Because the car started and then stopped, a refinement was adopted whereby Smith pressed the button of the self-starter while his brother poured petrol into the carburettor in the manner already described, and continued to do so after the engine had started. While he was pouring petrol into the running engine, there was a backfire, the can of petrol caught fire in Smith's brother's hand, he impulsively threw it away, it hit King who was standing about six feet away in the street in front of his house, setting fire to his clothes, and he was badly burnt. It is on these incomplete facts that it must be decided whether King's injuries were "caused by or arising out of the use" of Smith's car.

I am not in doubt that to start the engine of a motor vehicle preparatory to driving off is part of the use of a motor vehicle itself, nor do I doubt that to drive a motor vehicle to test whether repairs have been effective is to use the motor vehicle. I have, however, found some difficulty in determining what is the central question here, i.e., whether the starting of an engine of a motor vehicle in the course of repairing it or to test the efficacy of repairs made can properly be said to amount to a use of the motor vehicle itself.

It is, I think, inadvisable to attempt what might well be impossible, namely, the drawing of a hard and fast line between things which do and things which do not amount to the use of a motor vehicle for the purposes of the Motor Vehicles (Third Party Insurance) Act, but I do find it possible to enumerate some things that clearly do constitute the use of a motor vehicle and some things that do not. At one extreme, to drive a motor vehicle, including the operation of its mechanisms preparatory to starting or consequent upon stopping, is clearly enough to use the motor vehicle: at the other, to break a motor vehicle up to recover spare parts is not to use the motor vehicle. Moreover, to wash a car, to grease it, to fill its tank with petrol, to repair it by taking down its engine or by fitting a new panel, all fall outside my conception of using the motor vehicle. The wrecker who crushes his finger in removing the engine, the washer who contracts dermatitis from using a detergent or from scratching his hand upon a bumper bar, the greaser who is crushed by the car when a power hoist supporting it fails, the attendant who smokes a cigarette and fills a tank with petrol and is injured by the consequent explosion, do not suffer bodily injury caused by or arising out of the use of the motor vehicle that is being wrecked or serviced. There is, I think, in general a clear distinction of which every car owner is keenly aware between using his motor car and working upon it. To make a car ready for use is not to use it. It is only when working upon a car involves operating part of its mechanism that some difficulty arises. When repairing a car involves driving it, then while it is being driven there is both work upon the car and use of the car. Where such working involves no more than employing part of the mechanism of the car, e.g., opening or shutting a door, lifting or closing the bonnet, and such things, it would be quite unrealistic to regard the operation of the part as amounting to use of the motor vehicle. It seems to me that although to start the engine of a motor vehicle in the course of working upon it or to test the efficacy of work done makes a more substantial use of the mechanism of the vehicle than is involved in the instances I have just given, I do not think that it can properly be said to constitute a use of the motor vehicle itself. The difference between winding up a window to see whether a newly fitted glass will move freely and starting the engine to see whether a new diaphragm has been properly fitted into the carburettor is no more than one of degree and in my judgment neither amounts to using the motor vehicle. It is on this point that I differ from the clear and helpful judgment of Sugerman J. in the Full Court and I do so because, it being common ground between us that the starting of the engine in this case may merely have been an incident in its repair, his Honour thought that merely to start the engine for any reason was to use the motor vehicle. For the reasons I have given, I respectfully disagree. In the Full Court, both Sugerman J. and Else-Mitchell J. recognized that it is not possible to say whether what was being attempted here was to start the engine to drive away notwithstanding that the engine was obviously not in good running order; or to start it for some purpose connected with its repair. The onus of proving that his bodily injuries were caused by or arose out of the use of Smith's car rested upon King, and because the starting of the engine was not shown to be part of the use of the motor vehicle, I consider that this onus was not discharged. This case, I may say, is quite different from one where a car breaks down in traffic and attempts are then made to get it going again. In such a case, the attempts to start it might well, on the view I have taken, be regarded as part of the use of the car.

In the course of the argument of this case, we were referred to a number of authorities decided in the courts of New South Wales and New Zealand in which consideration was given, in the New South Wales courts, to the words "caused by or arising out of the use of an insured motor vehicle" and, in the New Zealand courts, to words of the same import in corresponding legislation. In some of these cases a limitation of the meaning of the words "the use" was adopted. I do not find it necessary in this case to consider those authorities because my conclusion here is that without putting any limitation upon the meaning of the word "use" in the section under consideration, it has not been shown that the respondent's bodily injuries were caused by or arose out of the use of Smith's motor vehicle. This seems to me a singular case in which further elucidation of the facts might perhaps have resolved what now appears as the major difficulty. As the case was left, however, I have, for the reasons which I have given, reached the same conclusion as Else-Mitchell J. did in the Full Court. The result is that I consider the appeal should be allowed.

The proceedings out of which this appeal arose were, in my opinion, based on a misapprehension of the effect of s. 15 (1) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951. That misapprehension occurred also in Daley v. Government Insurance Office of New South Wales [1] . Indeed it seems that that case may have been responsible for its occurrence here. It lies in regarding the whole phrase "a judgment obtained in respect of the death or bodily injury to any person caused by or arising out of the use of an insured motor vehicle" as a description of a judgment of a particular character. But I agree that, as the Chief Justice suggested during the argument, what s. 15 (1) refers to is a judgment in respect of death or bodily injury, such death or bodily injury having been caused by or arisen out of the use of an insured motor vehicle. I entirely agree with what my brother Menzies has said in his judgment, of which I have had the advantage, as to the construction and effect of the section. But in view of the full judgments given in the Supreme Court, each of which I have found helpful and instructive, I shall express for myself my conclusions on some of the questions that have arisen in this case.

A plaintiff who brings an action for negligence against the owner or driver of a motor vehicle has to prove only that he suffered damage as a result of negligent conduct for the consequences of which the defendant is responsible. Whether or not the defendant is insured against his liability for the damages that the plaintiff may recover is not in issue in such an action. The negligent conduct of the defendant that is relied upon by the plaintiff may or may not amount to the use of a motor vehicle within the meaning of the Act. As that question does not arise in the action, the judgment cannot determine it. But the judgment does determine what damages the plaintiff is entitled to have in consequence of the defendant's negligence. The nature and extent of the plaintiff's injuries are thus a matter in issue between the parties to the action. What was in issue in a cause is to be ascertained from the record (Robinson v. Duleep Singh [1] ; O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) [2] ). It may sometimes be necessary to go beyond the pleadings, as filed, or as amended at the trial, to ascertain the effect of a verdict, as for example when the jury answer specific questions submitted to them by the trial judge, or when he withdraws one count of several from their consideration, although this should be made to appear from the record. It has been suggested that the summing-up may also be resorted to to see what particular questions of fact the judge directed the jury that they should consider. But, unless the pleadings be expressly amended, it seems to me that the issues they raise should not, when the judgment comes to be considered, be regarded as abandoned or qualified by the summing-up. The jury may disregard the judge's advice, and if they return a general verdict then the matters that were determined by their verdict must be ascertained from the pleadings. Great difficulties would arise in relation to estoppels if that be not so. To see whether a judgment recovered in an action in the Supreme Court was obtained in respect of death or bodily injury, the declaration (supplemented by any particulars filed, including those under Order X, rr. 6 & 7) is primarily to be looked at. However, personal injuries and damage to property may arise from the same events and be recovered in the same action. Therefore, it is now necessary in actions for damages caused by events in which a motor vehicle had any part, that damages be separately assessed and recorded in respect of death or bodily injury and of damage to property: see s. 39 of the Act. "Bodily injury" here has a wide meaning and includes the consequences of nervous shock (Deeble v. Nott [1] ).

1. (1879) 11 Ch. D. 798. 2. (1938) 59 C.L.R. 744. 3. (1941) 65 C.L.R. 104.

In courts where there are no formal written pleadings the cause of action and the nature of the damages for which a judgment was given may not be so readily ascertainable from the record as in the case of an action tried in the Supreme Court. Oral evidence is, however, admissible, if necessary, to show what facts were in issue and determined as the basis of the judgment given (Flitters v. Allfrey [2] ; Routledge v. Hislop [3] and O'Donel's Case [4] ). Nevertheless, it is always primarily from the record that the character and effect of any judgment is to be ascertained. I may quote here some remarks of Owen J. in Hercules Motors Pty. Ltd. v. Schubert [1] . Their cogency is not lessened by their having been made in the course of a dissenting judgment: "It is true that the District Court is not a court of strict pleading, whatever that phrase may mean, but it is at least clear that in an action in that court the issues must be defined with reasonable particularity and the trial and findings must be limited to the issue. In this respect, s. 76 of the District Courts Act does no more than state the ordinary common law rules which govern the trial of all actions. The necessity for compliance with these rules is obvious, not only because a party is entitled to know what case he has to meet, so that he may decide whether to contest it or not, but because of the estoppels which necessarily arise where a verdict is found by a court of competent jurisdiction on issues joined between the parties. The picture of a court dispensing justice in an informal fashion and without regard to rules of procedure and practice, as though it were a tribal chief, may appeal to some, but in a highly organized and complex society actions can only be properly tried with justice to both parties if the issues are first defined and the evidence and findings kept within the bounds of those issues. If the evidence, instead of supporting the cause of action alleged, showed that the plaintiff had some other cause of action, even if it were one not dissimilar in kind, the proper course was to amend the issues; or, if for any reason that was not allowed to be done, to leave the parties to litigate the new issues in other proceedings" [2] . The declaration in the action King brought against Smith shows that the injuries that the plaintiff complained of were bodily injuries. The judgment was therefore obtained in respect of bodily injury; and to that extent s. 15 (1) was satisfied.

1. (1874) L.R. 10 C.P. 29, at p. 40. 2. (1860) 2 El. & El. 549, at p. 556 [121 E.R. 206, at p. 209]. 3. (1938) 59 C.L.R., at p. 757. 4. (1953) 53 S.R. (N.S.W.) 301. 5. (1953) 53 S.R. (N.S.W.), at p. 309.

I pass to the second matter that the applicant in the summons under s. 15 (1), the respondent in this appeal, had to establish - namely that the bodily injury in respect of which the judgment was obtained was caused by or arose out of the use of an insured motor vehicle. In the notice of appeal to this Court and in the argument this matter was approached on the assumption that it was to be resolved by seeing whether it was involved in the judgment considered in the light of the evidence. The declaration in the action alleged negligence on the part of the defendant in relation to the control and management of a motor vehicle and in attempting to start it in a dangerous manner and in failing to take precautions to protect the plaintiff from risk of bodily injury. But the cause of action was negligence. All that the plaintiff had to establish was a breach of a duty of care in one or other of the ways particularized in the declaration (cf. Mummery v. Irvings [1] ). There was only one cause of action, negligence - sued upon in one count. The position is quite unlike that which occurs when a general verdict is given on more than one cause of action alleged in separate counts. Such a verdict can only stand where the evidence will support a finding on each count (Cutts v. Buckley [2] ). Here the verdict, and the judgment thereupon entered, involve, at the most, a finding that in some way in relation to a motor vehicle the defendant was negligent and that as a result of that negligence the plaintiff suffered bodily injury. Even if the declaration had been more specific and had alleged that the defendant was negligent in the use of a motor vehicle, a verdict and judgment for the plaintiff would not have established that the plaintiff's injuries were caused by or arose out of the use, in the sense that phrase has in s. 15 (1), of an insured motor vehicle. Whether the plaintiff's injuries were so caused or did so arise is a question of fact. But that fact was not in issue in the action, for the very reason that Owen J. gave in the passage I have quoted, namely that a trial is, or should be, confined to the determination of the issues between the parties to the cause. The parties to the application under s. 15 (1) might, if they chose, as apparently they did, treat the evidence given at the trial of the action King v. Smith as evidence in the application by King under s. 15 (1). But that evidence would not necessarily prove what had to be proved in that application. To adapt an observation of Williams J. in Jackson v. Goldsmith [3] : no doubt the facts litigated in an application under s. 15 (1) are substantially the same facts as those litigated in the action, but they are litigated for a different purpose and to prove or disprove a different issue. Moreover they are not litigated between the same parties.

1. (1956) 96 C.L.R. 99. 2. (1933) 49 C.L.R. 189. 3. (1950) 81 C.L.R. 446, at p. 463.

I do not think it is necessary to examine fully what exactly is comprehended by the expression in the Act "the use of an insured motor vehicle".

The hypothetical cases that Menzies J. has mentioned graphically illustrate the situations that can arise, and indicate some of the considerations that in some circumstances may be important for resolving them. But, within limits, the question is one of fact and in any doubtful case much might depend upon the particular circumstances. I think we should be cautious lest illustrations of particular facts should be hereafter exalted into rules of law. Here the immediate cause of the injury to the plaintiff was that he was struck by a blazing tin of petrol that the defendant's brother cast from him, "acting under a compulsive necessity for his own safety", the expression used by De Grey C.J. in Scott v. Shepherd [1] . That the petrol became ignited was the unexpected result of the defendant trying to start the engine of a motor car (which was an insured vehicle) while his brother was pouring petrol into the carburettor. The defendant's liability in an action for negligence in these circumstances is an interesting variant of Scott v. Shepherd [1] . But it does not compel a conclusion that the plaintiff's injuries were caused by, or arose out of, the use of the vehicle within the meaning of the Act. Two questions arise. First, whether what was being done by the defendant Smith, his brother participating, was in the statutory sense a "use" by him of the vehicle. Speaking generally, while a motor vehicle, or any other mechanism, is out of action in the sense that it cannot readily be set in motion as required it can seldom be said to be in use. Making a thing fit for its ordinary use is not in the ordinary sense of words using it. But it is a question of fact and of degree. I agree with my brother Menzies that here the evidence was insufficient for a finding that there was such a use as s. 15 (1) requires. That is not surprising because the evidence tendered was all directed to a different issue in proceedings in which evidence directed to this issue would have been irrelevant. No doubt in most cases the evidence in an action will incidentally show whether or not the facts fit the Act. But if the matter be in doubt that doubt must be resolved by the applicant under s. 15 (1). The onus is on him. Hence I think that the application under s. 15 (1) ought on the evidence given to have failed. Secondly, if what was being done did amount to a use of the vehicle in the sense of the statute, the question would arise: were the bodily injuries that King suffered by being burnt by the blazing petrol caused by or did they arise out of such use? Smith was held liable for those injuries, for they were a consequence, not too remote of his negligence. I recognize that the Act should not be given a narrow operation. But I am not at present convinced that liability in tort under the rule in In re Polemis and Furness, Withy and Co. Ltd. [1] , for the distant consequences of a negligent act or omission in the use of a motor car necessarily establishes the existence of the relation between that use and those consequences that the statute predicates. Probably it does. But I do not wish to be taken as deciding it here.

1. (1773) 2 W. Black 892 [ 96 E.R. 525]. 2. (1773) 2 W. Black 892 [ 96 E.R. 525]. 3. (1921) 3 K.B. 560.