Harvey Trinder (NSW) Pty Ltd v Government Insurance Office (NSW) [1966] HCA 25

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Harvey Trinder (NSW) Pty Ltd v Government Insurance Office (NSW) [1966] HCA 25

ORDER Appeal dismissed with costs.

The following judgments were delivered:—

Barwick C.J.

I adhere to what I said in the Government Insurance Office of New South Wales v. R. J. Green and Lloyd Pty. Ltd. [3] . There I said, as counsel has recently cited, "After consideration, I have come to think it better to endeavour to apply the statutory expression as it is to circumstances as they arise, bearing in mind, as my brother Menzies has pointed out in Fawcett v. B.H.P. By-Products Pty. Ltd. [1] that in this field one should not be seeking subtleties but rather applying broad and practical conceptions" [2] . The question here is whether the injury to the man Reely arose out of the use of the insured motor vehicle. The injury resulted from the snapping or loosening of a steel cable attached to a tree at one end and to the drum of a winch fastened to the table-top of the motor truck at the other end. That winch was part of the gear of a crane mounted on the truck but was not in use as such a part at the time in question.

1. (1966) 114 C.L.R. 437. 2. (1960) 104 C.L.R. 80, at pp. 87, 88. 3. (1966) 114 C.L.R., at p. 444.

The winch was powered from an off-take of the motor truck's engine but the truck itself was immobilized by being secured to a tree, which acted as an anchor to keep the vehicle in place against the effort of the winch and the cable.

The resolution of this matter and of matters of a like kind is not without its difficulties, but I have reached the clear conclusion myself that the injury received by Reely did not arise out of the use of the motor vehicle. That the truck would be moved to another anchorage after the tree, then in the course of being felled, had fallen, or that the winching of a tree, as described, was part of an overall operation of land clearance which did involve the movement of the vehicle from time to time or that the function of the vehicle was to move the winch itself from position to position, in my opinion, is not relevant to the resolution of the question. Even if the reference in the policy to item 17 (a) of the schedule of rates, and to the use which might be made of the insured motor vehicle without payment of an additional premium have any relevance to the question whether the injury arose out of the use of the motor vehicle—a matter upon which I express no concluded opinion—in my opinion, the injury to Reely none the less did not arise out of the use of the motor vehicle within the meaning of those words in the policy.