Bamford v Periloo Pty Limited [2010] NSWLC 33

Local Court of New South Wales

CITATION: Bamford v Periloo Pty Limited [2010] NSWLC 33

JURISDICTION: Civil

Narelle Louise Bamford (Plaintiff) PARTIES: Periloo Pty Ltd t/as The Travellers Auto Barn (First Defendant) Petra Herling (Second Defendant) Holland Insurance Company Pty Ltd (Third Defendant)

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 11/22/2010

MAGISTRATE: Magistrate Curran

CATCHWORDS: INSURANCE – Insurance Contracts Act 1984 (Cth), s 51 –motor vehicle accident involving hire car – evidence enables conclusion of fault on part of hire car driver – legislative provision facilitating claim against insurer where insured has died or cannot be located – whether hire contract a contract of liability insurance – whether hire car company liable for damages in respect of accident – whether reasonable enquiries made as to location of hire car driver

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) Local Court Act 2007

Bayswater Car Rental Pty Ltd v Hannell (1999) 10 ANZ Ins Cas 61-437 CASES CITED: Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 Morris v Betcke [2005] NSWCA 308 Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658

TEXTS CITED:

REPRESENTATION: Mr G Carolan (instructed by Gells Lawyers) Mr S Y Reuben (instructed by Fraser Clancey, Lawyers)

ORDERS: Judgment for the Defendant

REASONS FOR JUDGMENT BACKGROUND 1 The factual circumstances that bring this matter before the Court are not contentious. The Plaintiff, Narelle Bamford, was the owner of a Ford Fiesta, registration number [xxx-xxx]. At the time the events occurred, the motor vehicle was being driven by the Plaintiff's husband, Gavin Bamford. There is no issue in relation to the status of the Plaintiff to bring this claim: it is accepted he was driving the car as the agent of his wife. 2 The Second Defendant, Petra Herling, was the driver of a Ford Falcon, registration number [xxx-xxx]. The two vehicles were involved in a collision that occurred at about 6.00am on 25 November 2008 on the Bruce Highway, near Mackay, in Queensland. She was a resident of Germany. She hired the Ford Falcon whilst she was in Australia on a holiday; she had hired it from the First Defendant, Periloo Pty Limited trading as "The Travellers Auto Barn", which was the owner of this motor vehicle. The First Defendant had entered into a contract of insurance with the Third Defendant, Holland Insurance Company Pty Limited, this organisation being a registered insurer. 3 Following the collision both motor vehicles sustained damage. The quantum of the claim is not in issue. It is the sum of $17,100. It was agreed that the extent of damage to the vehicle made it uneconomical to repair and this sum is the accepted pre-accident value of the Plaintiffs motor vehicle. 4 The Second Defendant has not filed an Appearance, nor a Defence in this matter. There are issues between the parties as to the effect of the attempts at service of the Court process, that is the Statement of Claim. No order was sought from the Court for substituted service. In any event, it is agreed that if such an order had been sought it would have failed in this Court because the Local Court of NSW has no power to make orders for substituted service of process outside the Commonwealth, of Australia. 5 The contract of hire between the Second Defendant and the First Defendant and the report of the collision by the Second Defendant to the First Defendant, filled out whilst she was still in Australia, indicate that she resides at an address in Düsseldorf, Germany. These documents also provide certain other details concerning the Second Defendant. These are as follows: - (a) Her German licence number; (b) Her date of birth; (c) A mobile phone number and email address. 6 The Plaintiffs case as to how the collision occurred is set out in a statement of Mr Gavin Bamford and he was called to give evidence before me on 12 July last. He says he was travelling in a southerly direction on the Bruce Highway at the time and date that I have indicated, on his way to work. It was a clear day and he had his headlights on. He was travelling in a line of traffic heading towards a service station known as the B.P. Mac's Truck Stop. It was on his left as he drove along the highway, that is on the eastern side. The highway at this particular point did not have a median strip, and there was one lane for traffic travelling in either direction. He says that he was behind another motor vehicle that slowed and indicated that it was going to move to its left into the truck stop. He says that he in turn slowed. He denied that he attempted to overtake this motor vehicle - there was no need as it was turning off the roadway some short distance ahead. He did observe what turned out to be the Second Defendant's motor vehicle on the left coming out of the stop. At this time of observation it was stationary. However, subsequently, this vehicle moved out onto the highway into the path of the Plaintiffs motor vehicle. It all happened very quickly. He had time only to apply the brakes and swerve but not sufficient time to avoid the collision with the vehicle being driven by the Second Defendant. Mr Bamford said that there was a speed limit at this point of the highway which was 100kmh. There is no evidence to suggest that he was travelling in excess of this limit. 7 Another version of the collision before the Court was that contained in the document headed "Collision for Damage Report Form" prepared by the Second Defendant. As I have said this was prepared after the accident before me Second Defendant left Australia and was provided to the First Defendant. It states as follows: - "I pulled out of the petrol station as the first car [not the Plaintiffs motor vehicle but one that was in front of the Plaintiffs motor vehicle] was pulling into the station. Vehicle 2 [that being driven by Mr Bamford] the car behind [i.e. behind the vehicle that was pulling into the station] swerved to overtake the turning car. We collided near centre line where front end damage to my car, passenger side damage to his car." 8 A diagram follows setting out the accident details, roughly consistent with the verbal description just set out. 9 A local police officer, Constable Streeting, attended the scene of the collision. There is a document headed "Occurrence Details" attached to an affidavit prepared by Mr Philip Grady. He is the National Fleet and Operations Manager employed by the First Defendant. It bears a report number and obviously was prepared by the police officer who attended the scene of the accident, Constable Streeting. It records details of observations made and indicates that both drivers were spoken to. The Second Defendant is referred to as a "German national with limited English". The report indicates further that both drivers sustained "sprains and strains" as a result of the collision. The report indicates, needless to say, that both vehicles sustained damage. At one point in the report, in respect of the Second Defendant, the following is noted: - "Traffic violations: Failure to give way, turn in face of oncoming traffic." 10 Further on in this report the following is noted: - "Unit 1 [the Second Defendant's motor vehicle] failed to give way whilst entering a road." 11 At the completion of this document in a section headed "Narrative", the following appears: - "Unit 2 [the vehicle being driven by Mr Bamford] was travelling south bound in a100kph zone approaching BP Mac's Truck Stop. Unit 2 was travelling behind a large truck which was in the inside left hand turn lane into the service driveway of BP Mac's Truck Stop. Unit 1 [the vehicle being driven by the Second Defendant] was at the service driveway waiting to turn right onto the Bruce Highway and proceed north. Unit 1's view was blocked by the vehicle. Unit 1 has begun to turn right and has collided with passenger side of Unit 2." 12 This is the extent of the evidence before the Court in relation to the circumstances of the collision. It is clear that on this evidence a conclusion can be reached, on the balance of probabilities, that the collision was a result of the negligence of the Second Defendant Whether this liability could be ameliorated by an allowance for contributory negligence would be a subject of argument. This may or may not be successful. However, I note that the Defence does not rely on contributory negligence. 13 As I have said, there is no issue as to the quantum of damage claimed by the Plaintiff. Formally, I note the statement of Mr Rob McPherson, a loss assessor, attesting to this.