Nominal Defendant v Mabury [1962] HCA 12

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Nominal Defendant v Mabury [1962] HCA 12

ORDER Appeal allowed. Order of the Supreme Court discharged. In lieu thereof order that there be judgment on demurrer for the defendant. Pursuant to the condition contained in the order dated 10th August 1961 granting special leave to appeal the appellant is to pay the respondent's costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1962, Feb. 28 Dixon C.J., Taylor and Menzies JJ.

Section 15 (2) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W. authorizes proceedings in the circumstances there stated against an authorized insurer or the nominal defendant by a person who could have recovered judgment against a person insured under a third party policy in respect of death from bodily injury arising out of the use of a motor vehicle in cases where the insured person who incurred liability is dead or cannot be served with process.

In Genders v. Government Insurance Office of N.S.W. [1] it was decided that this sub-section did not apply where the insured person was not when he died under any liability to the plaintiff. The majority of the Court decided that appeal on the broad ground, inter alia, that it having been provided by the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W. that liability for tort continues notwithstanding the death of the tortfeasor there is no longer any room for the application of s. 15 (2) in cases where the insured tortfeasor is dead. Their Honours said that as the purpose of that provision "is to fix upon an insurer a direct liability where the death of the insured makes recovery impossible" [2] , the enactment of the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W. providing that the liability of the tortfeasor survives his death has removed "the hypothesis upon which a right of direct recourse to the insurer is based" [2] with the consequence that "so far as it concerns the consequence of the death of the insured the provision is spent" [2] . What was there said has since been acted upon: e.g. Turner v. Government Insurance Office of N.S.W. [3] .