INSURERS GUARANTEE FUND - NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD (IN LIQUIDATION) v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 113

INSURERS GUARANTEE FUND - NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD (IN LIQUIDATION) v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and CRIPPS JJA 18 September 1992, 18 September 1992 [1992] NSWCA 113

Insurance — contribution to verdict — Motor Vehicle — accident arising out of use of a motor vehicle A declaration was sought that the GIO as the motor vehicle third party insurer was bound to contribute fifty per cent of a verdict recovered by an injured worker against his employer. At the trial the GIO did not dispute its liability to contribute if the injuries in question arose out of the use of a motor vehicle. HELD: On the evidence the injuries did not arise from such use.

Motor Vehicle (Third Party) Insurance Act 1942

Nikolovsky v GIO (Unreported, Court of Appeal, September 1992) GIO v King (1960) 104 CLR 93 Fawcett v BHP By-Products Pty Ltd (1980) 104 CLR 80

Cripps JA This is an appeal against a determination of Finlay J directing judgment for the GIO on the claim of what was then the National Employers Mutual General Insurance Association Limited which I shall refer to as "National". That was the party before Finlay J. There has since been substitution, but I will continue to refer to it as "National".

National sought a declaration that, in effect, the GIO contribute fifty per cent of the verdict and costs recovered by John Colin Stevens. There has been some discussion about whether that was an appropriate way for the litigation to be conducted bearing in mind a recent decision of this Court (Nikolovsky v Government Insurance Office of New South Wales, Court of Appeal, 11 September 1992 unreported). However, the issue before this Court is whether or not Finlay J erred in law in failing to declare that John Colin Stevens' injuries were caused by or arose out of the use of the motor vehicle within the meaning of s14 of the Motor Vehicle (Third Party) Insurance Act 1942.