Mercantile Mutual Insurance (Australia) Limited v AAMI Limited [1999] NSWCA 200

New South Wales Court of Appeal CITATION : Mercantile Mutual Insurance (Australia) Limited v AAMI Limited [1999] NSWCA 200 FILE NUMBER(S) : CA 40275/98 HEARING DATE(S) : 31 March 1999 JUDGMENT DATE : 23 June 1999

PARTIES : Mercantile Mutual Insurance (Australia) Limited v AAMI Limited JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD20031/98 LOWER COURT JUDICIAL OFFICER : Newman J

COUNSEL : Appellant - C R R Hoeben QC Respondent - D F Jackson QC & T Molomby SOLICITORS : Appellant - McCulloch & Buggy Respondent - Ferguson Holz CATCHWORDS : INSURANCE - double insurance - third party insurance of "driver" of motor vehicle - includes person for twice being in charge of motor vehicle - must be in charge of vehicle which is being driven - construction of Motor Accidents Act 1988. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40275/98 SC 20031/98

PRIESTLEY JA MEAGHER JA GILES JA

Wednesday 23 June 1999

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD v AAMI LTD

JUDGMENT

1 PRIESTLEY JA: I agree with Giles JA.

2 MEAGHER JA: I agree with Giles JA.

3 GILES JA: Jax Tyres supplied and fitted a tyre to Miss Restell's car. The tyre was a second hand tyre which had been retreaded by Dominion Tyres. It was defective, in that there was rusting of the steel plies prior to the retreading and the retreading process added excess rubber resulting in an uneven undertread rubber depth. While the car was being driven by Miss Restell a few days later the tyre failed due to separation of the tyre tread from the carcass of the tyre, within the original carcass structure and not at the interface between the original carcass and the new tread. The car left the road and rolled over, and a passenger, Miss Harvey, was severely injured.