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. The plaintiff, John Colin Stevens, sued his employer, Post and Diesel Services Pty Ltd and the Government Insurance Office of New South Wales for damages arising out of an accident on 6 October 1984. On that day, Mr Stevens, while in the course of his employment, climbed on to the roof of the cabin of a truck which he drove for his employer. He was on the roof of the cabin for the purpose of cleaning the truck. He slipped and fell and, as a result, was rendered quadriplegic. He sued his employer alleging breaches of common law and statutory duties and seeking damages. The employer was indemnified under a worker's compensation policy issued by National. It was also the owner of the truck. Mr Stevens sued the GIO because it was the authorised insurer. Finlay J was told when the matter came on before him that the plaintiff's action had been settled. It is not entirely clear what occurred thereafter but it seems that in order to give effect to the settlement, it was necessary for the matter to go to the Compensation Court. His Honour noted that fact and granted leave to the 2 UNREPORTED JUDGMENTS parties to file terms in court or the Registry when that was appropriate. We are now told that judgment has been entered against the employer and in favour of the GIO. As I have said, Finlay J was told that the only issue for determination was whether Mr Stevens' injuries arose out of the use of a motor vehicle within the meaning of the relevant legislation. If it did, Finlay J was told that it was agreed that the GIO contribute fifty per cent. The status or enforceability of that agreement need not concern us. The Court has said it will hear the first matter, namely, whether or not the learned trial judge erred in failing to make the declaration. If the answer is that the learned trial judge did err, then a certain course will be taken. If it is determined he did not err, the appropriate order for this Court to make would be to dismiss the appeal. I do not think it is necessary for me to set out in detail all the facts that were set out by the learned trial judge in his reasons for judgment. They were in part agreed as appearing at 45 and 46 of the Appeal Book and in part found where they appear from 46 through to 51. I do not think there is much dispute concerning his Honour's findings. To the extent there is a dispute, if I understand it, it is that he ought to have made other findings which would have had the effect of establishing a closer connection between what Mr Stevens was doing and the use of the motor vehicle. For example, it was said that the learned trial judge failed sufficiently to have regard to the circumstance that Mr Stevens ordinarily washed the vehicle or cleaned it at the conclusion of the trip and that, on this occasion, he did not do it because he was tired. He did it the day following the day the vehicle had been returned to its base. The significance of that, it was said, was that had Mr Stevens been injured washing the truck upon the immediate return to his home base and injured the way he was a day later, the submission would have been that there was a sufficient connection between the journey and the cleaning to warrant a finding that his injury arose out of the use of the motor vehicle. The case on behalf of National has been put on a number of bases. Most of them, I think, with the greatest respect, are mere variations - sometimes a different way of saying the same thing. But the main ground put before the Court was that a practical approach should be adopted. There was, it was submitted, and contrary to the finding of the learned trial judge, a relevant connection between the past use of the vehicle and the activity engaged upon by Mr Stevens. The Court has been referred to those parts of the evidence in which it was said that what he was doing was not only in the course of his employment but was necessarily undertaken in order that the vehicle function properly in the future because, unless insects and grime were cleaned from the truck, the efficient use of the truck would be impaired. The truck had on it an aerofoil which advertised the employer's business. It was that part of the vehicle which was being cleaned by Mr Stevens. A difficulty I have with the appellant's argument is this: that although there are words in other cases which may be taken as implying that generally a court should be generous in finding an association between a motor vehicle and an injury surrounding it, each case has to be looked at on its own facts to determine what in truth the court decided. Of particular significance in this case, I think, are the observations to be found in Government Insurance Office of New South Wales v King (1960) 104 CLR 93 and, in particular, the observations of Menzies J concerning what he thought was comprehended by the expression "arising out of the use of a motor vehicle". WRSIURERS GUARANTEE FUND - NATIONAL EMPLOYERS MUTUAL GENERA& INSURANCE ASSOCIATION LTD (IN LIQUIDATION) v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JA) I do not think it was suggested in this case that Mr Stevens' injuries were caused by the use of the motor vehicle. The case was that they arose out of the use of the motor vehicle. The observation of Menzies J, to me at least, seem to be very much against the proposition for the appellant. I will not go through the case or quote the statement. It is to be found at p 100. Submissions based upon the past use of the vehicle or the future use of the vehicle or with respect to what were described as the promotional use of the vehicle do not persuade me there was the relevant connection between what Mr Stevens was doing and the use of the motor vehicle as a motor vehicle. I was a little concerned as to whether or not it might be said that using the platform on the top of the cabin for the purpose of cleaning the aerofoil which was part of the vehicle, albeit the advertising part, was relevantly a use of the motor vehicle. On reflection, I have come to the conclusion that the argument cannot be sustained, largely, I think, for the reasons and examples in the judgments of Windeyer and Menzies JJ in Fawcett v BHP By- Products Pty Ltd (1960) 104 CLR 80. My ultimate conclusion generally is I agree with the reasons of the learned trial judge. In a very long and detailed judgment, he set out all the authorities which have been referred to us and gave reasons why, in his opinion, the declaration should not be made. I think he was correct and I would dismiss the appeal. Clarke JA I agree. Handley JA I also agree. Clarke JA: The order of the Court is the appeal be dismissed with costs. Counsel for the appellant: P J Deakin QC with L P McFee Counsel for the respondent: M J Neil QC with G R Petty Solicitors for the appellant: Hunt and Hunt Solicitors for the respondent: Government Insurance Office