NSW INSURANCE MINISTERIAL CORPORATION v HANDFORD [1994] NSWCA 243

NSW INSURANCE MINISTERIAL CORPORATION v HANDFORD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 26 October 1994, 22 November 1994 [1994] NSWCA 243

"CAUSED BY OR AROSE OUT OF THE USE OF A MOTOR VEHICLE" — REPAIR — MOTOR VEHICLE (THIRD PARTY) INSURANCE ACT 1942 — LIABILITY OF THIRD PARTY INSURER

FACTS:

H was requested by L to repair the cabin of a vehicle in which there were controls for operating a tipper tray. It became necessary to tip the tray to effect the repairs. The mechanism was faulty and the tray collapsed, and the worker was injured when he jumped aside. For the purposes of the legislation governing third party insurance it was held by Studdert J that the injuries "were caused by or arose out of the use of the vehicle". The insurer appealed.

HELD:

(1) The incident, and the steps taken to raise the tipper tray, did constitute the "use of a motor vehicle". Repair can also involve use and this was the case here, especially as the tipper was being used during repairs to the cabin, not the tipper. The situation is analogous to a parked car breaking loose because the brake fails or is left off, here the tipper control failed while performing its ordinary function. Harvey Trinder (NSW) Pty Ltd v Government Insurance Office of New South Wales (1966) 114 CLR 449 distinguished.

Meagher JA This is an appeal by NSW Insurance Ministerial Corporation (aka GIO) against Mr Handford in respect of a verdict of $224,158.42 awarded against it by Studdert J.

Mr Handford was requested by Mr Lewis, who owned a tipper truck, to repair the cabin of the vehicle. On first inspection, the pin mechanism securing the cabin seemed to Mr Handford to be broken. He realised that to repair the cabin he would have to elevate the tipper tray. He therefore raised the tray to an elevated position. This involved starting the vehicle's engine, depressing the clutch, operating the control in the cabin to pull the power take off mechanism into gear, and moving the control valve lever for the hydraulic arm, also located in the cabin, to the forward position. If the hydraulic system in the truck had been functioning properly, the control valve lever should have kept the tipper tray elevated. Mr Handford then climbed to the chassis level to inspect the damaged cabin pin, when the tray collapsed. He jumped aside and was injured, because the hydraulic system was not working.