Palframan v Jackson's House Removals

[2002] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:                  Palframan & Ors v Jackson’s House Removals &          Ors [2002] QSC 314

PARTIES:                    DONALD WAYNE PALFRAMAN

(Plaintiff)

v  

JACKSON’S HOUSE REMOVALS (A FIRM)           (Defendant)
  and   
  L’UNION DES ASSURANCES DE PARIS
  (ARBN 000 000 902)
(First Third Party)
  and
  BOCORP PTY LTD (ACN 062 087 503)
(Second Third Party)
and
  SUNCORP METWAY INSURANCE LIMITED          (Fourth Third Party)

VIRGINIA GUEVARRA FISHER
(First Plaintiff)
  and
  JAMES DOMINIC FISHER (WHO SUES BY HIS      NEXT FRIEND VIRGINIA GUEVARRA    FISHER)
(Second Plaintiff)
  and
  LYNN MAY FISHER (WHO SUES BY HER    NEXT FRIEND VIRGINIA GUEVARRA    FISHER)
(Third Plaintiff)
v
  BOCORP PTY LTD (ACN 062 087 503)
  (First Defendant)
  and
  ROLAND JAMES JACKSON
  (Second Defendant)
  and
  L’UNION DES ASSURANCES DES PARIS      (ARBN 000 00 902)
(First Third Party)
and
  SUNCORP METWAY INSURANCE LIMITED
  (Third Third Party)

MARIA SALVACION PALFRAMAN
  (Plaintiff)
  and
  JACKSON’S HOUSE REMOVALS (A FIRM)
(Defendant)
  and
  L’UNION DES ASSURANCE DE PARIS
  (ARBN 000 000 902)
  (First Third Party)
  and
  BOCORP PTY LTD (ACN 062 087 503)
(Second Third Party)
  and
  ACE-IRM INSURANCE BROKING GROUP PTY      LTD (ACN 010 596 700)
(Third Third Party)
  and
  SUNCORP METWAY INSURANCE LIMITED
  (Fourth Third Party)

FILE NO:  S59 of 1997

S32 of 1998

S5 of 1998

DIVISION:                   Trial Division

DELIVERED ON:       9 October 2002       

DELIVERED AT:        Rockhampton

HEARING DATE:       17 July 2002 in Brisbane

JUDGE:   Dutney J

ORDERS:Declare that pursuant to policy 4.13.022237 L’Union Des Assurances De Paris is liable to indemnify         Jackson’s House Removals (A firm) in relation to the plaintiff’s claims in actions S59 of 1997, S32 of 1998 and S5 of 1998.            

CATCHWORDS:         INSURANCE – CONSTRUCTION OF POLICY – EXCLUSION CLAUSE – where “Vehicle” defined – whether low loader is a “Vehicle” within the policy    

Container Handlers Pty Ltd v Insurance Commission of Western Australia and Others [2001] WASCA 304 (3 October 2001), not followed

Johnson v American Home assurance Company (1998) 192 CLR 266, distinguished

COUNSEL:Mr A M Daubney SC with him Mr P Corkery for Suncorp Metway Insurance Limited

Mr D Savage SC for L’Union Des Assurances De Paris

SOLICITORS:              Quinlan Miller & Treston for Suncorp Metway Insurance Limited

Deacons for L’Union Des Assurances De Paris     

1. The only issue remaining for determination in these actions is whether the first third party in S59 of 1997, S32 of 1998 and S5 of 1998, L’Union Des Assurances De Paris (“UAP”), is liable to indemnify Jackson’s House Removals (A Firm) pursuant to its policy issued 30 March 1994.

1. The issue is of relevance only to UAP and Suncorp Metway Insurance Limited (“Suncorp”).  All other parties had resolved the issues that concerned them and were given leave to withdraw.

1. Exhibit 1 contains an agreed statement of facts.  In summary the incident giving rise to the claims occurred during the course of a house removal by Jackson’s House Removals (“Jackson’s”).  The equipment being used was a prime mover and low loader both owned by Jackson’s and both separately registered and separately insured.  The low loader was a trailer on wheels which had no means of self-propulsion. The low loader was  required to be registered under s12 of the Transport & Infrastructure (Roads) Regulation 1991 and s20 of the Motor Accident Insurance Act.

1. At the relevant time the prime mover and the low loader were joined together.  A part of a house which had been placed on the low loader collapsed while employees of Jackson’s were working on the roof. One employee was killed and the other two were injured.

1. The contest between the parties concerns exclusion 9 to the UAP policy.

1. Relevant clauses of the UAP policy are as follows:

   Definitions

   Whenever appearing in the Policy or any annexes forming part hereof, the following terms shall, unless the context specifically provides to the contrary, be interpreted in the manner described below:

   …

   9. Vehicle

   Any type of machine on wheels or on caterpillar tracks made or intended to be self propelled by mechanical power.

   Exclusions

   This policy does not cover:

   …

   2. Property damage to:

   …

   (c)        property which is in the Insured’s care, custody or            control, but this Exclusion 2.(c) shall  not apply to:

   …

   (ii) Vehicles (other than Vehicles owned by or on behalf of the Insured) in the care, custody or control of the Insured whilst such Vehicles are in a car park owned or operated by the Insured other than for income or reward as a car park operator

   9.Any liability arising out of the use of any Vehicle owned by or in the physical or legal control of the Insured:

   (a)       which is required to be registered by virtue of any   legislation relating to vehicles; or

   (b)in respect of which insurance is required by virtue of any legislation realing to vehicles.

   This Exclusion 9. shall not apply to Vehicles described in    Exclusion 2.(c)(ii).

2. UAP contends that:

   (a)any obligation to indemnify under the policy is excluded by Exclusion 9;

   (b)the vehicle was required to be, and was in fact, registered by virtue of legislation, and was in fact owned by and under the physical and legal control of Jackson.  The liability arises out of the use of that vehicle;

   (c)“Vehicle” as referred to in the UAP policy (and notwithstanding any definition of “Vehicle” contained in the policy) refers to :

   (i)the entire vehicle – prime mover and trailer; or

   (ii)if the vehicle is to be deconstructed into constituent parts, a vehicle (as that term is ordinarily understood) which is required to be registered

   one or other of which conditions is satisfied.

1. The UAP policy, and, in particular, Exclusion 9. has been construed in a not entirely dissimilar fact situation by the Court of Appeal  in Western Australia in Container Handlers Pty Ltd v Insurance Commission of Western Australia and others [2001] WASCA 304 (3 October 2001). In that case a low loader attached to a prime mover suffered a flat tyre. The low loader was jacked up. While the wheel was being replaced the jack slipped and a passenger assisting in the removal of the wheel was injured.

1. The appeal insofar as it concerned the UAP policy was disposed of on grounds relating to the geographical location of the incident and the proper construction of the scope of the limitations to the  Occupiers Liability cover specified in the policy schedule.  None of this is relevant for present purposes.  The issue UAP ventilated before me was raised by way of notice of contention and dealt with principally in paragraphs [89] and [93] of the judgment of Roberts-Smith J with whom the other members of the Court agreed as follows:

   [89] Mr McCormack submitted that for the purposes of exclusion 9, the word “vehicle” is to be construed having regard to the prohibition against multiple insurance cover for personal injury relevantly “caused” by a motor vehicle within the meaning of s4 of the Act. To construe the policy as providing cover to any motor vehicle within the meaning of s4 of the Act would necessarily involve a finding there was an “illegal contract” (s3R(2) of the MV Act provides that no person other than the Director General on behalf of the Commission shall issue any policy of insurance under or for the purposes of (the) Act). This submission was founded on the proposition that the meaning of the policy is to be ascertained in light of the provisions of the Road Traffic Act 1974 (WA) (“the RT Act”) because the policy must exist in a commercial environment where what it contains within its terms does not include either double insurance, illegal contracts or otherwise comes into collision with any legislative requirement. To put it another way, the argument was that what is excluded by statute from the policy cannot be covered by the policy.

[93]     In my view, application of the basic principles of interpretation and construction explained in Darlington Futures[1] and McCann v Switzerland Insurance[2] leads to the conclusion that for the purposes of exclusion 9 the word “vehicle” was intended to have the same meaning as the term “motor vehicle” in s3(1) of the MV Act.  Exclusion 9 is expressly concerned to exclude any liability arising out of the use of vehicles which legislation relating to vehicles requires to be registered or insured.  Giving to this a business-like interpretation requires attention to the commercial circumstances and social purposes for which it was written.  I accept Mr McCormack’s submission that this involves appropriate recognition of the compulsory third party insurance scheme established by the MV Act and the RT Act.  Acceptance of the appellant’s argument on this would produce the result that (certainly in the circumstances of this case) the UAP policy was intended to, and did, provide insurance cover in addition to the statutory cover and in contravention of s3R(2) of the MV Act.  That construction was plainly not what was intended.  In my opinion the clause operates such that the policy does not respond to the appellant’s claim.

[1] Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510.

[2] McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711 at [22], [73] and [74].

1. The second argument advanced here by UAP’s counsel, namely, that for the purposes of the policy the low loader and the prime mover were to be regarded as one integrated unit was expressly abandoned in the Western Australian case.

1. “Vehicle” with a capital does not appear in the policy except in Exclusion 2(c)(ii) and Exclusion 9.  The word appears without a capital only in the definitions of “Hovercraft” and “Aircraft”.  In each of these definitions the context as well as the absence of the capital “V’ suggests that word is not intended to be limited to a machine on wheels or caterpillar tracks.

1. Had the word “Vehicle” not been defined I would have no difficulty in concluding that the low loader was covered by exclusion 9.  Having been defined and the word used only twice in the policy with the capital letter and then in related contexts it seems to me that there would need to be a clear ambiguity or context not to apply the defined meaning to the word.  If “Vehicle” is given the defined meaning the exclusion would not apply to the low loader taken as a separate unit.

1. Notwithstanding what was said by the Court of Appeal in Western Australia in Container Handlers I cannot accept that the definition does not apply to the low loader.  To find otherwise is to reject the meaning of the word “Vehicle” the parties to the policy have expressly given it and to torture what I regard as the plain and unambiguous language of the policy more than it will bear.  While it is obviously unsatisfactory that the same policy might be construed differently in different states I am compelled to reject UAP’s primary submission.  The Western Australian decision seems to me to be based upon the statutory framework for CTP insurance peculiar to that state.  I do not regard what was said by Kirby J in Johnson v American Home Assurance[3] as being applicable to the construction of this policy.  The word “Vehicle” defined in this policy does not have a settled meaning in the sense to which his honour referred.  Instead there is a decision of a state appellate court which has declined to apply the definition because of a perceived inconsistency between the policy as written if the word is given its defined meaning and the CTP legislation in that jurisdiction.

   [3] (1998) 192 CLR 266 at 273.3

1. Anticipating that I might reject its primary submission, UAP submits that the low loader and the prime mover to which it was attached at the relevant time should be treated as a single and thus self propelled unit at the time of the incident.  This argument was expressly abandoned in the Western Australian case.  The problem with this argument is that the low loader is not an integral part of the prime mover.  It is a separate and detachable piece of machinery on wheels which requires affixation to some other piece of equipment only because it is not self propelled.  The prime mover was irrelevant to this particular case.  Since the low loader is not an integral part of the prime mover and is recognised as a discrete vehicle by being required to be separately registered and insured it seems to me difficult to find any rational basis for not treating it as a separate vehicle for the purposes of the policy.  I am thus in agreement with the learned primary judge in Container Handlers who rejected this argument.

1. In the end result I must conclude that the injuries suffered by the plaintiffs were injuries to which the UAP policy responds.  I thus declare that pursuant to policy 4.13.022237 UAP is liable to indemnify Jackson’s House Removals (A firm) in relation to the plaintiff’s claims in actions S59 of 1997, S32 of 1998 and S5 of 1998.  I will hear the parties as to what, if any, orders are consequential to this declaration in the actions and as to costs.