WorkCover Qld v Suncorp Metway Insurance Ltd [2005] QCA 155

INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - RISKS INSURED - RELATIONSHIP WITH WORKERS' COMPENSATION CLAIMS - employee injured in motor vehicle accident in the course of his employment - employer partnership owed joint and several liability to employee due to negligently loaded vehicle - vehicle registered in the name of one partner only - partnership's insurer sought equitable contribution from registered owner's insurer - whether registration of vehicle ownership in one partner's name amounted to registration of the partnership as owner

INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - RISKS INSURED - LIABILITY OF OWNER OF VEHICLE TO DRIVER AND VICE VERSA - s 3(2) of Motor Vehicles Insurance Act 1936 (Qld) deems any person who is in charge of a motor vehicle to be the authorised agent of the owner - partnership theoretically in charge of vehicle at time it was negligently loaded - whether partnership could be deemed to be the authorised agent of the owner

INSURANCE - DOUBLE INSURANCE - WORKERS' COMPENSATION LIABILITY - partnership insured by Workers' Compensation Act 1990 (Qld) - owner of vehicle insured by Motor Vehicles Insurance Act 1936 (Qld) - injured employee sued upon the partnership's liability - employee could alternatively have sued upon vehicle owner's liability - whether there was an 'identity of insured persons' - whether appellant insurer liable to contribute to respondent insurer for indemnifying the partnership members - whether appellant insurer had obligation to indemnify partner who was not the registered owner

Motor Vehicles Insurance Act 1936 (Qld) (repealed), s 3

Workers' Compensation Act 1990 (Qld) (repealed), s 4.9

Albion Insurance Co Ltd v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342, applied

AMP Workers' Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35, applied

Glover v Politanski [1990] 2 Qd R 41, considered

Lorimer v Thatcher [1992] QCA 171; [1993] 2 Qd R 25, applied

Ringelstein v Redford Cattle Company Pty Ltd [1994] QCA 14; [1995] 1 Qd R 433, applied

Schleimer v Brisbane Stevedoring Pty Ltd [1969] Qd R 46, applied

State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd [1969] HCA 59; (1969) 123 CLR 228, applied

[1] McMURDO P: Jerrard JA in his reasons, with which I am in general agreement subject to the following observations, has set out the facts, issues and relevant legislative provisions. I need not unnecessarily repeat them in explaining my reasons for reaching a different conclusion on the amount of the contribution payable for double insurance.

[2] Mr Mark Carter was injured on 13 December 1993 when the prime mover and trailer he was driving in the course of his employment rolled over as a result of a load shift on the trailer. Mr Carter was employed by a partnership consisting of Mr Keith White and Ms Rosemary White as equal partners. Mr Carter sued his employer, the partnership, for damages in respect of the injuries he received in the accident, alleging breach of contractual, tortious and statutory duties. The respondent ("WorkCover") was the insurer of the partnership as employer under the Workers' Compensation Act 1990 (Qld) (repealed).[1] Mr Carter's action against the partnership was compromised on reasonable terms. The Whites' liability as partners in the partnership to Mr Carter was joint and several. Mr White, as a matter of convenience, had registered the prime mover and trailer in his name only. The primary judge's finding that he did so on behalf of the partnership was plainly correct. Mr White, as registered owner of the prime mover and trailer, was insured under the Motor Vehicles Insurance Act 1936 (Qld)[2] ("the Act") by the appellant ("Suncorp") as compulsory third party insurer for both the prime mover and trailer. Mr Carter did not sue Mr White as registered owner under the Act but WorkCover sought equitable contribution from Suncorp of one-half of the damages and costs it paid to Mr Carter.

[3] This appeal concerns whether Suncorp was obliged to contribute as a co-insurer to WorkCover's liability to indemnify Mr White and, if so, the extent of that obligation.

[4] The first issue is whether, under the third paragraph of s 3(1) of the Act,[3] Suncorp was exempt from indemnifying Mr White because he was Mr Carter's employer and therefore liable to pay Mr Carter "damages on account of accidental bodily injury ... caused by, through or in connection with a motor vehicle ... in circumstances such as would give rise to an entitlement to the payment of compensation under" the Workers' Compensation Act 1990 (Qld) (repealed).

[5] This turns on whether "owner" as used throughout s 3 of the Act means only "registered owner" (here, Mr White) or whether it includes the real or effective owner (here, the partnership). In Schleimer v Brisbane Stevedoring Pty Ltd[4] approved by the High Court on appeal in State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd[5] and applied in Glover v Politanski[6] the Full Court of this Court held that the obligation on the owner to insure under s 3 of the Act is an obligation only on the registered owner (here, Mr White). Despite some appealing aspects of the arguments of Mr Williams QC, who appeared with Ms D Skennar for Suncorp, I am unpersuaded that this Court should depart from the established interpretation in those cases of the Act repealed in 1994. Glover also authoritatively states that in circumstances comparable to those here, the exclusion from liability in the third paragraph of s 3(1) of the Act does not apply to a partnership that employed a worker injured in the course of employment by, through or in connection with a motor vehicle registered in the name of only one partner. That conclusion is also consistent with this Court's decision in Lorimer v Thatcher.[7] It follows that Suncorp was not exempt under the third paragraph of s 3 of the Act from indemnifying Mr White for Mr Carter's damages.

[6] The principle of equitable contribution, here between co-insurers, requires that those who are jointly or severally liable in respect of the same loss or damage should contribute to the compensation payable in respect of that loss or damage, either equally where they are liable in the same amount or proportionately where the amount of their liability differs: Burke v LFOT Pty Ltd[8] applying Albion Insurance Co Ltd v Government Insurance Office (NSW)[9] and Commercial and General Insurance Co Ltd v Government Insurance Office (NSW).[10]

[7] Mr White, as registered owner of the prime mover and trailer, was insured by Suncorp under s 3 of the Act. The partnership as employer was insured in respect of injuries caused by breach of duty to its employee, Mr Carter, by WorkCover. At the time of Mr Carter's injury[11] Suncorp was obliged to indemnify Mr White under the Act for his liability for the full extent of Mr Carter's injury. WorkCover was similarly obliged to indemnify the partnership. As equal partners, both Mr and Ms White were each jointly and severally liable to Mr Carter for those damages. Mr Carter's action against his employer was brought against the partnership, but Mr and Ms White were obliged to enter appearances to Mr Carter's claim in their own name[12] and judgment may have been executed against either of them[13] for the full amount of their joint and several liability. Mr White as an equal partner with Ms White was entitled under s 27(1) Partnership Act 1891 (Qld) to an equal contribution from Ms White for 50 per cent of that amount. His duty to mitigate his losses meant that, at the time of Mr Carter's injury, Mr White's liability for which WorkCover was obliged to indemnify him was for 50 per cent of Mr Carter's damages. Suncorp's obligation to contribute equally as co-insurer with WorkCover is for one half of WorkCover's liability to indemnify Mr White for Mr Carter's damages and costs, that is, for one quarter of that amount.

[8] It follows that the learned primary judge erred in concluding that the principle of equitable contribution required Suncorp and WorkCover to each contribute 50 per cent of Mr Carter's damages and costs. The principle of equitable contribution required that Suncorp and WorkCover contribute proportionately to the amount of Mr White's damages for which they were each liable, here 50 per cent of Mr White's share of Mr Carter's damages and costs ($336,091.83), so that each is obliged to contribute 50 per cent of that amount ($168,045.92).

[9] I would allow the appeal with costs to be assessed and vary the order of 29 July 2004 by substituting the sum of $168,045.92 for the sum of $336,091.83. The respondent, WorkCover, should also pay the appellant, Suncorp's, costs of the trial to be assessed.

[10] JERRARD JA: Suncorp Metway Insurance Limited has appealed an order made by this Court on 29 July 2004 that it pay WorkCover Queensland the sum of $336,091.83 together with interest thereon at seven per cent per annum from 4 July 2000, and the costs of and incidental to the proceedings in this Court, to be assessed on an indemnity basis. The learned trial judge making that order held that a situation of double insurance existed between WorkCover and Suncorp, entitling the plaintiff WorkCover to call on the defendant co-insurer Suncorp for an equal contribution in respect of an insured whose loss WorkCover had indemnified.

[11] The proceedings between those parties arose out of other proceedings brought by Mark Andrew Carter against Keith White and Rosemary White. An agreed statement of facts recorded that on 13 December 1993 the Whites were carrying on a transport business in partnership, and on that date Mr Carter, who was employed by their partnership as a truck driver, was injured in a motor vehicle accident. That accident happened when a prime mover and trailer, each owned by the partnership and solely used in the partnership's transport business, overturned when the trailer load shifted. Mr Carter was driving the prime mover at that time, in the course of his employment with the partnership, and towing the trailer loaded with bales of paper. Keith White was the registered owner of both the prime mover and trailer pursuant to the Motor Vehicles Insurance Act 1936 (Qld).

[12] Mr Carter sued the Whites, alleging joint and several liability in each for breaches of contractual and tortious duties to exercise reasonable care in and about Mr Carter's employment by the partnership, and alleging a breach of duty under the Workplace Health and Safety Act 1989 (Qld). He alleged those duties had been breached by the manner in which the load was (allegedly) inadequately secured. At all material times there existed a policy of accident insurance between WorkCover and the Whites, pursuant to s 4.9(2) of the Workers' Compensation Act 1990 (Qld). The pleaded liability of the Whites to Carter, in consequence of the accident and Mr Carter's injury therefrom, was a liability in respect of which the Whites were entitled to indemnity under that policy. WorkCover[14] assumed carriage of the defence of Mr Carter's proceedings against the Whites, and on 30 November 1999 it entered into a compromise of that cause of action, accepted as reasonable in these proceedings, whereby WorkCover agreed to pay and paid Mr Carter $632,183.67, together with $40,000 as agreed costs.

[13] In these proceedings the learned trial judge upheld WorkCover's argument that Suncorp was also obliged to indemnify Keith White in respect of his several liability to Mr Carter in the amount of the compromised claim and agreed costs. The judge held that WorkCover and Suncorp had each insured Keith White against liability for the loss and damage Mr Carter suffered when driving the prime mover and trailer. The judge held there was a sufficient identity of the insured to give rise to a situation of double insurance, (in effect) equality was equity, and ordered contribution by Suncorp Metway of $336,091.83. Suncorp appeals on a number of grounds, and WorkCover contends that some of the grounds of appeal attempt to reverse long standing constructions of the now repealed Motor Vehicles Insurance Act 1936 (Qld)[15], ("the Motor Act"), and to challenge matters long settled under the now repealed Workers' Compensation Act 1990 (Qld) ("the Workers' Act").

[14] Suncorp's submissions centred on the terms used in the Motor Act and in the Workers' Act. It was common ground on the appeal that the provisions of each of those Acts gave a partnership an existence beyond its members for their purposes. Each Act equated the partnership with a legal entity separate from its members, in the sections relevant to this case and quoted herein.[16] Mr Williams QC, for Suncorp, agreed that the former Act obliged Keith White, as the registered owner of the vehicles, to indemnify himself and his authorised agents by a contract of insurance against all sums for which Keith White or his authorised agents should become legally liable by way of damages in respect of those motor vehicles for accidental bodily injury to any person where that injury was caused by, through, or in connection with those motor vehicles ("third party insurance"). The appellant's written argument contended that the partnership was also an owner of those vehicles, and thus also obliged to effect third party insurance under the Motor Act; accordingly the partnership was entitled to the benefit of an exemption from that obligation to insure, which exemption appeared in the third paragraph of s 3(1) of that Act.

"3. (1) Subject to this Act, the owner of any motor vehicle shall at all times during the registration, or as the case may be, any renewal of the registration of such motor vehicle indemnify and keep indemnified the owner and every authorised agent of the owner by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer against all sums for which the owner or his estate or any such authorised agent or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such other person, the owner himself) in any State or Territory of the Commonwealth of Australia where such injury is caused by, through, or in connection with such motor vehicle.

Liability by way of damages referred to in the first paragraph of this subsection includes the liability (either joint or several) of an insured person -

(a) to pay or to contribute to the payment of such damages;

(b) to make contribution to any other tortfeasor under the provisions of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952;

(c) to pay damages for breach of his contract of employment evidenced by his causing such injury.

Liability by way of damages referred to in the first paragraph of this subsection does not include the liability of an employer incurred on or after 22 September 1988 to pay damages on account of accidental bodily injury (fatal or non-fatal) caused by, through or in connection with a motor vehicle to his employee (being a worker within the meaning of the Workers' Compensation Act 1916-1988) in circumstances such as would give rise to an entitlement to the payment of compensation under that Act.

...

(2) For the purposes of any such contract of insurance and of every claim for accidental bodily injury (fatal or non-fatal) to any person caused by, through, or in connection with a motor vehicle insured thereunder, every person, other than the owner, who at any time is in charge of such motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorised agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent:

The third paragraph in s 3(1) was added by Act No 74 of 1988. The employers' liability described in it, and excised from the liability for which third party insurance was compulsory, will be referred to hereafter as "liability to an employee".

[16] Mr Williams also relied on the definition of "owner" in the Motor Act. It read:

" 'Owner' - The person registered in the records of the Commissioner of Main Roads under the Main Roads Acts as the owner of the motor vehicle, unless such person shall have given to the Commissioner a notice in writing in accordance with the Main Roads Regulations advising the transfer of the motor vehicle or authorising the cancellation of the certificate of registration or renewal of registration appearing in his name in respect thereof: the term includes any person who is the owner, joint owner, or any person who has the vehicle under a hiring or hire-purchase agreement: also any person who has given notice of purchase in accordance with the above regulations: the term also includes a dealer to whom a certificate of assignment of an identification number has been issued under the Main Roads Regulations in respect of any motor vehicle bearing his assigned identification number."

As that definition reveals, registration of a motor vehicle was required and effected under regulations made pursuant to s 39 and paragraph 13 of the schedule to The Main Roads Act of 1920, as amended.

[17] Mr Williams then referred to the definition of "person" in that Act. It read:

" 'Person' includes any company, corporation, partnership, or firm, or body of persons corporate or unincorporate, and any individual person."

Although he did not so submit, it is obvious that the registration of a partnership as the owner of a motor vehicle would accord with the definitions in that Act. A partnership as registered owner would be obliged by s 3(1) to obtain third party insurance. When that partnership was an employer then in the circumstances described in the third, exempting, paragraph, the partnership would not be obliged under that Act to indemnify itself against its liability to an employee.

[18] The other relevant legislation in 1993 was the Workers' Act. Its relevant provisions read:

"Employer's legal liability and obligation to insure

4.9(1) An employer is legally liable to pay the compensation prescribed to be payable from the Fund in respect of injury suffered by a worker employed by the employer.

(2) Subject to subsection (3), every employer is to insure and remain insured with the Board under a policy in respect of -

(a) the employer's legal liability to pay compensation under this Act; and

(b) the employer's legal lability existing independently of this Act to pay damages in respect of injury to a worker employed by the employer, being a liability within the cover of accident insurance as defined in section 2.1."

" (1)

...

"accident insurance" means insurance by which an employer is indemnified against all sums for which the employer may become legally liable, in respect of injury to a worker employed by the employer, in respect of -

(a) compensation under this Act; and

(b) damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages, other than a liability against which the employer is required to provide under some other Act of Queensland or a law of another State or a Territory, or of the Commonwealth or of another country;

...

"employer" means a person (whether an individual or a corporation), or any association or group of persons, or a partnership that employs a worker or workers, and includes - ...

"worker" means a person who works under a contract of service or apprenticeship or otherwise with an employer in work of any description ..."

I will hereafter refer to the insurance required under the Workers' Act as "employer's insurance", and to the exemption, provided by the definition in s 2.1(b) from the general obligation to get employer's insurance, as "an otherwise provided for liability".

[20] Neither counsel referred the Court to the regulations made under the Main Roads Act 1920 as amended. In those regulations the term "owner" is defined in much the same terms as in the Motor Act. Those regulations prohibited the use of a motor vehicle on a road unless it was registered, and by regulation 3(3) provided that an application for the issue of a registration certificate in respect of a motor vehicle had to be accompanied by a certificate evidencing insurance of the vehicle in accordance with the Motor Act.

[21] Suncorp's written submission argued that registration of ownership in the name of one partner was registration of the partnership as the owner. That submission was contradicted by the decision of the Full Court in Glover v Politanski,[17] in which case one member of a partnership was the registered owner of a vehicle owned by that partnership. The Full Court's conclusion that the partnership was not obliged to take out third party insurance, and that that obligation fell only on the partner who was the registered owner, is inconsistent with the submission that registration in the name of Keith White effected registration of the partnership as owner. If that had happened here, it had likewise happened in Glover v Politanski. The decision in that case would have been different had the Court held that one partner's registration as owner of a vehicle under the Motor Act was the registration of the partnership as owner. The written submission did not refer to Glover v Politanski, and Mr Williams advanced a different argument in his oral submission.

[22] This was that the partnership of K & RB White was the "owner" of both vehicles as that term was defined in the Motor Act, and as the term was used in s 3(1), except when first used in s 3(1); I observe that it follows from the argument he presented that on any view that partnership was not "the owner" as the term was used in

s 3(2). Focusing on s 3(1), Mr Williams argued that the partnership, as an owner of the vehicle, was the subject of the obligation created by s 3(1) in its first paragraph namely that the partnership as owner be indemnified by a contract of third party insurance. It followed that the partnership was therefore subject to the exempting provision in the third paragraph of s 3(1) in respect of its liability to an employee. Therefore, Suncorp had no obligation in this matter to indemnify the partnership, under the third party insurance obtained by Mr White. That obligation fell exclusively on WorkCover which had provided employer's insurance under the Workers' Act.

[23] The argument was developed as follows. The definition of "owner" in the Motor Act commences with that term being equated to the persons registered in the records of the Commissioner as the owner, but then includes after the first colon any one who is the owner, joint owner, or hirer of the vehicle, and any person who is given notice of purchase or a dealer to whom a certificate of assignment of an identification number has been issued. The definition of "person" in that Act results in a partnership being included within the term "owner", as used in the Act; in Mr Williams' submission, this was the position irrespective of whether or not the partnership itself, all its members, one only, or none, were registered as the owner in the records of the Commissioner. That latter conclusion simply followed from the breadth of the statutory definition of "owner". If the construction of "owner" was limited to equating it with the person registered as owner, then all of the words appearing after the first colon in the definition were surplusage. Indeed, in his submission, construing the statutory definition to restrict the meaning of "owner" to registered owner had the effect of treating the words "includes" as meaning "excludes".

[24] I do not accept that that last proposition follows, but do accept that there was force in his argument on the proper construction of that statutory definition. There is certainly room for the view that all of the words added after the first colon were intended to enlarge the meaning beyond simply that of the registered owner.

[25] But the matter is not free from authority. In Schleimer v Brisbane Stevedoring Pty Ltd [1969] Qd R 46 the Full Court heard an appeal in a matter in which the plaintiff had sued each of his employer and the owner of a mobile crane for damages for negligence, arising out of an accident involving the crane when it was driven by an employee of the crane owner. That crane owner was insured by a policy of insurance issued under the Motor Act, and hired the crane to the plaintiff's employer. The plaintiff's employer had a policy of insurance pursuant to the Workers' Compensation Acts 1916 to 1961, in respect of that employer's liability to the plaintiff for damages. The insurer, the State Government Insurance Office (Qld), contended in the Full Court that the plaintiff's employer (its insured), as the hirer of the crane and therefore an "owner" of it, was under an obligation under the Motor Act to get third party insurance as provided by that Act, and that accordingly the injury the plaintiff suffered was within the exception in s 8(1)(b) of the Workers' Compensation Acts. Section 8(1)(b) provided the like exception to the obligation of an employer to obtain employer's insurance to that appearing in s 2.1(1)(b) of the Workers' Act; that is, the employer was not required to insure in respect of an otherwise provided for liability.

[26] In Schleimer Hanger J,[18] giving the judgment of the Court, wrote as follows (at

Qd R 71) in respect of the contention that the hirer of the crane was obliged to effect third party insurance because of the definition of "owner" in the Motor Act:

"In the view I take of the definition of 'owner' in s. 2, there is no basis for the argument that, merely because a person has taken a motor vehicle on hire, he must insure himself against liability for injury to other persons. The definition gives a meaning for the word owner. Section 2 says that, subject to the context, the term 'owner' has the meaning 'the person registered in the records of the Commissioner of Main Roads.' It then proceeds to say that the term includes any person 'who is the owner, joint owner, or any person who has the vehicle under a hiring agreement', etc. But this addition does not purport to alter the meaning of the term, which therefore remains unaltered. It includes in the term an owner, a joint owner and a hirer. But this owner, joint owner or hirer must, in order to be an owner within the definition, qualify as registered with the Commissioner in order to come within the definition."

[27] That judgment very much confined the statutory definition to meaning the registered owner; the term included the actual owner or owners, but only where registered. The case went on appeal[19] to the High Court, where Barwick CJ, with whom the other judges relevantly agreed, wrote:[20]

"The appellant submits that the terms of s. 3 of the Acts require that any person who falls within the description of 'owner' as defined in s. 2 must, during the time he satisfies that qualification, keep on foot a policy of insurance fulfilling the requirements of s. 3(1); and this notwithstanding that there is on foot the policy of insurance taken out by the registered owner of the vehicle covering the period of the registration of the vehicle and without which the registration may not be effected or maintained. In my opinion, this submission should be rejected. The obligation of s. 3 is, in my opinion, placed upon the owner, whichever one of the categories to be found in the definition of owner he may satisfy. But in effect, if there is a registered owner, who, of course, may be a person in any one of these categories, it is only upon an owner who is the registered owner that an obligation is cast to obtain and maintain the policy of indemnity described in the subsection. ... in the case of a registered vehicle no person falling within the description of 'owner' in s. 2 who is not registered as owner, is bound by s. 3 to take out a policy of insurance of the described kind."

[28] Mr K White was registered as the owner of both motor vehicles at the relevant time, and in accordance with the judgment of Barwick CJ, the obligation to maintain the policy of indemnity required by the Motor Act was placed on Mr White only.[21] Mr Williams nevertheless submitted in passing, in keeping with the written outline, that the partnership as an owner, although not the registered owner, was obliged by

s 3(1) to get third party insurance. He argued that the remarks by Hanger J in Schleimer were intended as, and limited to, a definition of a "registered" owner; but that argument must be rejected. It simply ignores the very clear explanation in His Honour's judgment that he was construing "owner".

[29] Mr Williams next submitted that, because of the decision in Schleimer,[22] the appellant accepted that the word "owner" where it first appeared in s 3(1), describing the obligation placed on the owner during the registration of a vehicle to obtain an indemnification, should be construed as a reference to the registered owner. That is, the "owner", as that term was construed by Hanger J, was obliged to insure. But Mr Williams submitted that where the term appeared thereafter in

s 3, it should be construed to mean all of the categories of "owner" described in the statutory definition. Accordingly, the registered owner's obligation to obtain an indemnity by a contract of insurance was an obligation to indemnify and keep indemnified all of those categories of owner, and every authorised agent of each of those categories of owner, against all sums for which those varieties of owners or their authorised agents should be legally liable by way of damages in respect of the motor vehicle for accidental bodily injury to any person caused by, through, or in connection with such motor vehicle.

[30] Mr Williams explained the necessity to so construe s 3(1) because, in his submission, if it is not so construed a joint owner who is not registered as the owner of the vehicle would not be indemnified against the variety of damages just described, unless that joint owner happened to be driving the vehicle at the time of the occasion giving rise to the liability and damages; yet that joint owner could be liable at the suit of the injured party. He gave as an example a situation where A was the registered owner of a vehicle, B was the hirer of it from A, and B let an employee C drive the vehicle in the course of C's employment. C in so using the vehicle negligently injured D, who sued B, the employer, alleging B had a vicarious liability for C's negligence. Mr Williams, putting himself in his example in the position of B, submitted:

"I'm vicariously liable for the driver and I'm sued. Where's my indemnity, I ask rhetorically?"

[31] He then made the submission that the same position applied to the partnership in this matter. On his argument, the partners were entitled to an indemnity from the motor vehicle insurer on the basis that the partnership, as an owner of the vehicle within the statutory definition, was entitled to the indemnity. The implication of the submission was that an injustice would otherwise occur to the partnership, it being potentially liable as an employer, if it were not regarded as entitled to indemnity by the motor vehicle insurer on the ground that it was an "owner".

[32] The problem with Mr Williams' argument is that, when applied to the facts in this matter, the answer to his rhetorical question is the same whether or not the construction he advances for the term "owner" in s 3(1) is accepted. If it is rejected and, as Mr Douglas SC for WorkCover submitted, "owner" is given the same meaning in s 3(1) wherever it appears - and the same meaning as in s 3(2) - then the obligation created in s 3(1) is to keep indemnified the registered owner and every authorised agent of that registered owner. On Mr Williams' construction, Mr White, the registered owner, was required to keep indemnified not only himself but the partnership, pursuant to the obligation created in the first paragraph of s 3(1). However, the liability of the partnership as an employer (liability to an employee) is excluded by the third paragraph of s 3(1) from the liability against which Mr White as registered owner would be required to indemnify the partnership. Mr Williams' argument, and his examples of the non-registered employer hirer, offered a construction of s 3(1) that would require a registered owner to indemnify by insurance non-registered owners against liability in their capacity as employers, both to employees and to persons injured by their negligent employees. But the third paragraph of s 3(1) would then operate to relieve the registered owner from the responsibility of insuring those non-registered owner employers against liability to an employee.

[33] The expanded obligation which fell on a registered owner and a motor car insurer, which would result from accepting Mr Williams' argument, would have been an obligation to protect by insurance non-registered owner employers against vicarious liability as employers to persons other than their own employees. It would give no benefit to the non-registered owner in this matter. That consequence, both pointless in this case and otherwise a little bizarre, would be achieved only by construing the same word differently in the one paragraph. That submission should be rejected, and the word "owner" in s 3(1) given the same construction wherever it appeared, there being no sensible reason to do otherwise.[23]

[34] Mr Williams advanced another argument, which necessarily accepted construing "owner" in s 3(1) and s 3(2) as meaning the registered owner in accordance with Schleimer. This argument was that the reference in s 3(2) of the Motor Act to "every person, other than the owner, who at any time is in charge of such motor vehicle," applied to the partnership. It had relevantly either at all times been in charge of the motor vehicle, or at many times, and undoubtedly was when the vehicle was negligently loaded. It was accordingly the authorised agent of the registered owner, Mr White, who was therefore required to indemnify the partnership under third party insurance. I observe that again, accepting that submission would not result in this matter in the registered owner actually being required to indemnify the partnership by third party insurance. The partnership liability to an employee would bring it within the exempting provision in s 3(1).

[35] The justification for the construction advanced was that it would allow a person to whom the registered owner had entrusted a vehicle in the past, and who had negligently performed work on the vehicle without the registered owner's knowledge and which work resulted in an injury causing accident, to claim the benefit of the motor vehicle insurer's indemnity when sued by the injured person. On the example given by Mr Williams, the registered owner would not be personally liable, being unaware of the careless repair of the vehicle, but the negligent repairer would have the benefit of the statutory agency by reason of having been in charge of the motor vehicle at a time relevant to the claim for accidental injury. Mr Douglas contended that the decision of this Court in Ringelstein v Redford Cattle Company Pty Ltd [1994] QCA 14; [1995] 1 Qd R 433 (at 436-437) was against Mr Williams' submission, because in that case this Court construed the expression "in charge of", in s 4F(3B) of the Motor Act, as being less concerned with legal authority than with physical control. This Court held that no different meaning should be given to that phrase in that section of the Motor Act than from its established meaning under the Traffic Act 1949 (Qld). The submission that a driver's employer, being legally entitled to control an employee's driving, was therefore "in charge of" a vehicle when it was being driven by an employee, was not accepted.

[36] While Ringelstein was not dealing with the statutory agency in s 3(2), the observation by the Court that it is difficult to perceive why theoretical control should be introduced into the essentially practical concept of being "in charge of" a motor vehicle is equally applicable to the construction of "in charge" in s 3(2). At the time the semitrailer was negligently loaded with the load which slipped and caused Mr Carter to be injured, the partnership could be said to have been in charge of both motor vehicles, in the sense that an authorised member of the partnership could give directions about the usage of those vehicles; but a natural person would have been in physical control of the vehicle during that loading. That may have been Mr Carter, or Mr White, or Mrs White, or some other person; the agreed facts did not describe who loaded the vehicle or in what circumstances. The particulars of pleaded negligence imply that Mr Carter loaded it.

[37] Mr Williams argued that even if the statutory agency did not make the partnership Mr White's authorised agent, that in fact it was. But that was not established by the agreed facts, and the partnership seems more accurately regarded as a principal than an agent. It is an odd notion, which I reject, that Mr White as registered owner authorised himself and Mrs White as partners to use the vehicle. As I see it, the partners authorised Mr White to register the vehicle with himself as owner, and authorised Mr Carter to drive it. Who loaded it is unknown. I consider the submissions as to statutory agency in the partnership should be rejected as inconsistent with the construction and approach in Ringelstein, and that agency in fact was not made out on the material to which Mr Williams referred the court.

[38] Mr Williams also submitted that while the partnership was the employer, Mr White had insured a personal liability with WorkCover, which had to be (his) liability as an employer. Mr Williams referred to the use of the terms "an" employer in the Workers' Act in s 2.1 and in s 4.9. He contended that indemnifying Mr White under the latter Act effectively lifted the partnership veil, and that it was quite inconsistent to insist that the partnership and not Mr White was "an employer" as that term was used in the third paragraph of s 3(1) of the Motor Act. The problem facing the submission that Mr White was an employer is that each of the Motor Act and the Workers' Act recognises a partnership as an entity separate from its members, and that recognition was given effect to in Glover v Politanski. The Full Court held there that the partnership member who was the registered owner of a motor vehicle was not the employer of the partnership's injured employee, as that term was used in the Workers' Act. I consider the same reasoning applies to the Motor Act and the exempting provision in the third paragraph of s 3(1), which provision refers to (the predecessor to) the Workers' Act which was relevantly expressed in similar terms. In any event, and irrespective of the applicability of the reasoning in Glover v Politanski, I do not consider Mr White can be regarded as "an" employer of any of the employees of the partnership of himself and his wife, for Mr Carter's loss and damages. The partnership employees do not have as many employers as there are members of the partnership. If they did, one employer might order dismissal of an employee at the same time as another employer of that employee ordered promotion, a bonus, and long service leave. The learned trial judge was correct in the view that there was but one employer, the partnership. Mr White's ultimate personal liability resulted not from Mr White being an employer but from his being a partner, against whom the liabilities of the partnership could be jointly and severally enforced.

[39] There are decisions of the Full Court of this State, and of this Court of Appeal, construing provisions of these two repealed Acts relevant to this appeal. Schleimer is one of those. It was applied in Glover v Politanski, which construed the Motor Act in its pre-1988 form. The ruling there that where only one member of a partnership was registered as the owner of a vehicle used by the partnership in carrying on partnership business, then only that person was required to take out third party insurance under the Motor Act, was not necessarily inconsistent with Mr Williams' submission that the insurance thus effected by the registered owner indemnified all categories of owner, including partnership owners. Likewise a second ruling in Glover, that where an injured person was employed by that partnership, only the partnership had been required under the _Workers' Ac_t to obtain the employer's insurance, was not necessarily inconsistent with Mr Williams' submissions on the first paragraph of s 3(1) of the Motor Act. But the approach taken in Glover v Politanski of treating a partnership as the relevant (and only) employer for the employer's insurance requirement of the Workers' Act conflicted with Mr Williams' submission that the exempting clause concerning insurance for liability to an employee in the third paragraph of s 3(1) applied to the registered owner, Mr White.

[40] That submission was also at odds with the decision of this Court in Lorimer v Thatcher [1992] QCA 171; [1993] 2 Qd R 25, which dealt with the Motor Act in its post-1988 form. There a company employed two people of whom one negligently injured the other when driving a motor vehicle owned by the company. It was not registered as the owner of that vehicle, and therefore not required by the Motor Act to obtain motor vehicle insurance. Accordingly, as an employer it was not relieved of the obligation to obtain employer's insurance by reason of the liability arising from injury to its employees caused in connection with a motor vehicle being an otherwise provided for liability. This Court held that, in respect of a quite separate company which was the registered owner of the vehicle, the exempting provision in s 3(1) in its third paragraph did not apply. It applied only when the owner or authorised agent referred to in the first paragraph of s 3(1) was also the employer. Both those decisions tell against Mr Williams' argument that one member of the partnership, who was the registered owner, could be regarded as "an employer" within the meaning of that exempting provision.

[41] In Lorimer v Thatcher the non-registered owner employer was a company Harbrew Pty Ltd. The judgment of this court reads[24] as follows:

"It was conceded by the third, fourth and fifth respondents that Harbrew was not the owner of the prime mover or low loader within the meaning of s 3 of the Motor Vehicles Insurance Act 1936. Consequently it could not be contended that it was required to provide against liability by such Act within the meaning of the words in parentheses in s 8(1)(b) of the Workers' Compensation Act 1916."

The concessions referred to there contradict Mr Williams' first submission that the partnership was the owner of the vehicles, within the meaning of s 3 of that Act, in this matter. The consequential conclusion that followed in the judgment would not have been expressed as it was if the company which was the registered owner of the vehicles was obliged by s 3(1) of the Motor Act to obtain third party insurance providing against liability for all varieties of owner as defined in that Act, as argued by Mr Williams. This decision is accordingly contrary to his oral submission that the partnership was an owner where that term was used in s 3(1), other than where first appearing.

[42] Mr Williams submitted that (in the event his other arguments failed) for Suncorp to be liable to contribute to WorkCover for its indemnification of the partnership members, WorkCover needed to establish that there were identical insured persons. Clearly there were not; the insured pursuant to the Workers' Act was the partnership whose members were entitled to the benefit of that indemnity, whereas the insured for the purposes of the Motor Act was the owner and the owner's authorised agents. These were not identical insured persons, and this was not a situation of double insurance.

[43] WorkCover's claim for a contribution from Suncorp was based on its argument that there was double insurance as explained in Albion Insurance Co Ltd v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342, particularly at 345. Barwick CJ, McTiernan and Menzies JJ wrote:

"There is double insurance when an assured is insured against the same risk with two independent insurers. To insure doubly is lawful but the assured cannot recover more than the loss suffered and for which there is indemnity under each of the policies. The insured may claim indemnity from either insurer. However, as both insurers are liable, the doctrine of contribution between insurers has been evolved...there is no doubt that it now applies generally to insurance which provides the insured with an indemnity. There is no reason why the doctrine should not apply to insurance against liability to third parties and there is every reason in principle that it should. The doctrine, however, only applies when each insurer insures against the same risk, although it is not necessary that the insurances should be identical. Thus one insurer may insure properties A and B against fire and the other insurer may only insure property A against fire. Again, one policy may be for a limited amount and the other may be for an unlimited amount.....The element essential for contribution is that, whatever else may be covered by either of the policies, each must cover the risk which has given rise to the claim. There is no double insurance unless each insurer is liable under his policy to indemnify the insured in whole or in part against the happening which has given rise to the insured's loss or liability."

[44] Their Honours went on (at CLR 346) to write:

"The matter can, we think, be decided simply enough by inquiring whether payment by one insurer of the policy holder's claim for indemnity would provide the other insurer with a defence to a like claim against it."

They approved (at CLR 349) the proposition that a right to contribution exists whenever a loss has occurred against which each of two or more insurers has contracted to indemnify the one insured, whatever differences there may be in other respects between the policies.

[45] Kitto J expressed the principles in these terms (at CLR 352):

"What attracts the right of contribution between insurers, then, is not any similarity between the relevant insurance contracts as regards their general nature or purpose or the extent of the rights and obligations they create, but is simply the fact that each contract is a contract of indemnity and covers the identical loss that the identical insured has sustained; for that is the situation in which 'the insured is to receive but one satisfaction' (to use Lord Mansfield's expression) and accordingly all the insurances are 'regarded as truly one insurance'."

[46] Mr Williams points to the requirement that there be an indemnity covering the identical loss "that the identical insured" has sustained, described by Kitto J, and the requirement by the majority that two or more insurers have contracted to indemnify the one insured. He submitted that contribution could not apply where the partnership was insured pursuant to the Workers' Act, and the registered owner pursuant to the Motor Act. I consider that the way the matter was put in AMP Workers' Compensation Services (NSW) Ltd v QBE Insurance Ltd (2001) 53 NSWLR[25] 35 at 38 is relevant. There Handley JA, giving the judgment of the court, wrote that the right of contribution only exists in respect of insurances which are contracts of indemnity, where two or more insurers are on risk in respect of the same loss or liability. The learned judge cited Albion Insurance at 346, 349-350. That statement of principle does not refer to the necessity for an identical insured, but rather the identical loss or liability.

[47] The loss and damage for which both Suncorp and WorkCover insured against liability was that suffered by Mr Carter as a result of negligence in connection with a motor vehicle causing him accidental bodily injury. The liability Mr

Carter sued upon was his employer's liability, and the person against whom he would have been entitled to enforce judgment were each of Mr and Mrs White, jointly and severally. A judgment Mr Carter obtained could have been enforced against Mr White in full, and that would have answered the description in s 3(1) of the Motor Act of a sum for which Mr White was legally liable by way of damages in respect of such motor vehicle etc, and Mr White could enforce against Suncorp his indemnity for that liability under his third party insurance. Neither Mr Carter's right to enforce his judgment against only Mr White, and the latter's right to an indemnity from Suncorp, were in any way affected by Mr Carter's like right to enforce his judgment solely against Mrs White. In the latter situation only WorkCover would have been obliged to indemnify her; but, as to that, what Handley JA wrote in AMP Workers' Compensation Services has particular relevance.

[48] In that case the employer was the registered owner of a truck, and held third party insurance under the equivalent New South Wales legislation to the Motor Act. The employer also held employers' liability insurance under the New South Wales equivalent of the Workers' Act. An employee G negligently drove the truck and injured an employee M, who sued G. The proceedings were settled, and the third party insurer paid. That insurer then claimed contribution from the employer's liability insurer. The latter insurer defended the claim, contending that it had not insured G for his negligence, and that the employer it had insured had never been made liable.

[49] Handley JA wrote as follows (at NSWLR 40) about that argument:

"In this case the employer had double insurance and Mitchell could choose his defendants, but in principle this should make no difference. The insured's decision to claim against one insurer rather than the other or both was not allowed to unjustly enrich the other, but contribution could be enforced so that all would share the burden equally. Similarly the more or less arbitrary decision by Mitchell to sue the driver and not the employer or both jointly should not be permitted to impose the whole burden on [the third party insurer] to the exoneration of [the employer's liability insurer]. Both should contribute equally and would have done so if Mitchell had sued the employer or both driver and employer."

[50] In my respectful opinion that approach should be adopted here. The two insurers here insured in respect of the same loss or liability, and in fact there was an identity of insured persons. Both insurers were obliged to indemnify Mr White in full. The principles which justify contribution, discussed in Burke v LFOT Pty Ltd[26] at [14]-[22]; [38]-[41]; and [141]-[144], justified an order in this matter.

[51] There remains only Mr Williams' argument that in the circumstance which actually prevailed, WorkCover had not only agreed to indemnify each of Mr and Mrs White, but had actually done so; that accorded with the equality of their partnership provided for by s 27 of the Partnership Act 1891, and the agreed statement of facts describing them as equal partners. Mr Williams submitted that while WorkCover might have indemnified Mr White in full, it had done very differently, and Suncorp had no obligation to indemnify Mrs White or make any contribution in respect of her half share of the partnership liability indemnified by WorkCover. Accordingly, Suncorp's contribution should be 50 per cent of Mr White's indemnified liability, and thus only 25 per cent of the sum settled upon, not 50 per cent.

[52] I thought there was force in that submission, but that it too was contrary to a conclusion reached in AMP Workers' Compensation Services.[27] In that case the New South Wales Court of Appeal considered it had to decide what was the relevant date for the purposes of determining a question of double insurance. The contending submissions were as at the date of the casualty; as opposed to after the event, and when the claim for contribution was made. The court determined that the judgments in Albion Insurance, when properly understood, required that the question of double insurance be determined at the date of the casualty. That ruling was the subject of some complaint on the special leave application, but leave was refused, and I consider the principles expressed in the case should be applied until overturned by higher authority. Accepting the conclusion there that the relevant date is the date of the injury, on that date the inchoate liability of both of the insurers to Mr White existed in full, and the judgment of the learned trial judge that Suncorp's contribution should be 50 per cent of the $672,183.67 should be upheld.

[53] I would dismiss the appeal, with costs assessed on the standard basis.

[54] DOUGLAS J: I have had the advantage of reading the reasons for judgment of the President and Jerrard JA where the facts and relevant legislation are set out.

[55] For the reasons advanced by the President and Jerrard JA, I agree that the White partnership was not the registered owner nor was it established on the evidence that the partnership was Mr White's authorised agent or in charge of the vehicles for the purposes of the Motor Vehicles Insurance Act 1936 ("the Act"). The agreed facts do not deal directly with who was in charge of the vehicle when any negligent conduct occurred or when Mr Carter was injured.[28] Nor are they sufficient to establish the unusual conclusion that the partnership was Mr White's agent.

[56] The word "owner" should be construed in accordance with the definition in the Act and as having the same meaning throughout the relevant sections of that Act unless there is a strong contrary intention appearing in the text. The established meaning of the word here is that, if the registered owner is a different entity from the legal owner, the legal owner is not treated as the registered owner for the purposes of the Act.[29]

[57] There is no reason to change that approach because of the changes to s 3(1) of the Act introduced in 1988, which substituted the words "the owner and every authorised agent of the owner" for "himself and all other persons". Mr Williams QC, for the appellant, submitted that if the word "owner" was limited to the meaning "registered owner" in its second and subsequent appearances in s 3(1) the policy would not cover an unregistered owner vicariously liable at common law for the negligent person in charge of a vehicle. In his submission that was a significant gap in what should be a comprehensive statutory scheme covering legal liability for damages for accidental bodily injury in respect of motor vehicles. The scheme operates, however, by extending the liability of the registered owner of the vehicle, under s 3(2), by making every person other than that owner, who at any time is in charge of the vehicle, the owner's deemed agent. The gap complained of in the cover provided is not such as to deprive a litigant of the ability to sue an insured defendant, even if some potential defendants may not be covered by the policy. As Jerrard JA has also pointed out, potential defendants who employed the negligent driver would not be covered by the motor vehicle policy in any event. The remaining possible gap in the cover for legal owners of vehicles who are neither registered owners nor employers, but who are otherwise vicariously liable for a driver's negligence, does not seem to me to provide a sufficient reason to depart from the settled and internally consistent interpretation of the word "owner" in this legislation.

[58] The appellant also sought to make something of the apparent inconsistency in Mr White not being treated as an employer for the purposes of the third paragraph of s 3(1) of the Act but being indemnified as a member of the employer partnership for the purposes of the Workers' Compensation Act 1990. That may appear anomalous but it is simply a consequence of the fact that the partnership was the employer, not Mr White, but the partnership was not registered as the vehicles' owner. The Workers' Compensation Act policy also extends to indemnify those sued, in this case Mr White as a partner, because his liability for the partnership's obligations was joint and several.

[59] I agree with Jerrard JA that the amount of contribution paid by the appellant to the respondent should be 50 per cent on the basis expressed by him and also because each insurer's liability was to indemnify their insured to an unlimited extent for the full amount of the damages suffered by Mr Carter.[30] That was the basis on which they conducted their business and, no doubt, on which they calculated the premiums they charged. In that case there is no need to consider whether the right approach to assessing the proportion of contribution to be paid by each insurer is to rely upon the independent liabilities or the maximum potential liabilities of the insurers.[31] The payment by the respondent, WorkCover Queensland, freed the appellant, Suncorp Metway Insurance Limited, from liability to the insured for its rateable proportion. Its potential liability was the full amount of the claim against Mr White, even if he could seek contribution from his business partner, Mrs White.

[60] If one looks at the converse situation and assumes that Suncorp Metway had indemnified Mr White to the full extent of the judgment sum in an action against him as the registered owner of the vehicles, WorkCover could not limit the proportion of its contribution to Suncorp Metway to 25 per cent solely on the basis that it had another, unmet obligation to indemnify Mrs White for a similar percentage. The liability from which it would have been freed by the Suncorp Metway payment would have been the full amount of the potential claim against Mr White as one partner of the firm whose joint and several liability it was obliged to indemnify.

[61] In my view the consequence is that Suncorp Metway's contribution to the payment by WorkCover should be 50 per cent. Accordingly I agree with the orders proposed by Jerrard JA.

[1] See WorkCover Queensland Act 1996 (Qld), s 534.

[2] See Motor Accident Insurance Act 1994 (Qld), s 102.

[3] Set out in Jerrard JA's reasons at para [15].

[4] [1969] Qd R 46, 71.

[5] [1969] HCA 59; (1969) 123 CLR 228, 238 - 239.

[6] [1990] 2 Qd R 41, 51.

[7] [1992] QCA 171; [1993] 2 Qd R 25.

[8] [2002] HCA 17; (2002) 209 CLR 282, 294, [22], 297 - 303, [35] - [50], 317, [91], 334 - 336, [141] - [142].

[9] [1969] HCA 55; (1969) 121 CLR 342, 346, 349-350.

[10] (1973) 129 CLR 374, 379-380.

[11] The time of the injury is the relevant time for determining whether double insurance exists: AMP Workers' Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35.

[12] Supreme Court Rules¸ O 54 r 7; Cf UCPR r 85.

[13] Supreme Court Rules, O 54 r 10; UCPR r 88.

[14] WorkCover Queensland was established by s 330 of the WorkCover Queensland Act 1996 (Qld), which Act by s 534 repealed the Workers' Compensation Act 1990 (Qld); the WorkCover Queensland Act 1996 was itself repealed by s 588 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which latter Act by s 380 established WorkCover Queensland, and by s 591 declared a continuation of WorkCover Queensland established under s 330 of the 1996 Act

[15] Repealed by s 102 of the Motor Accident Insurance Act 1994 (Qld)

[16] The effect of treating a partnership as a distinct entity was considered in Glover v Politanski [1990] 2 Qd R 41 at 47 and 51

[17] [1990] 2 Qd R 41

[19] Reported as State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd [1969] HCA 59; (1969) 123 CLR 228

[21] As should now be obvious, this decision was followed in Glover v Politanski

[22] The appellant's written outline did not refer to that case either

[23] Described as a sound rule of construction in Registrar of Titles v Franzon & Finance Corporation of Australia Ltd [1975] HCA 41; (1975) 132 CLR 611 at 618; although that sound rule must yield to the requirements of the context (per Gibbs J in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633 at 643

[25] Special leave was refused on 9 August 2002

[26] [2002] HCA 17; (2002) 187 ALR 612.

[27] The submission also faced the difficulties posed by the judgment of Menzies, Walsh, and Mason JJ in Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374 at 380.

[28] As to the significance of the facts in this context, see Ringelstein v Redford Cattle Company Pty Ltd [1994] QCA 14; [1995] 1 Qd R 433, 436-437.

[29] See Schleimer v Brisbane Stevedoring Pty Ltd [1969] Qd R 46, 69, 71; State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd [1969] HCA 59; (1969) 123 CLR 228, 238-239, 246, 248, 250, 252-253 and Glover v Politanski [1990] 2 Qd R 41, 47, 51.

[30] Employers' Mutual Indemnity Assoc Ltd v Viscount Manufacturers' (NSW) Pty Ltd [1980] 2 NSWLR 343, 350; Commercial Union Assurance Co Ltd v Hayden [1977] QB 804, 820-822.

[31] The distinction is also discussed, e.g., in Government Insurance Office of New South Wales v Crowley [1975] 2 NSWLR 78; Commercial Union Assurance Co Ltd v Hayden at 820-822; GRE Insurance Ltd v QBE Insurance Ltd [1985] VicRp 9; [1985] VR 83, 103-106 and Drayton v Martin (1996) 137 ALR 145, 177-179 affirmed on appeal in HIH Casualty and General Insurance Ltd v FAI General Insurance Co Ltd (1997) 9 ANZ Insurance Cases 61-358.