Motor Vehicle Property Damage Review

Recent case law May 2012

Click on the case name to be taken to the detailed version

Decision / More Info	Legislation	The question raised	The new position
AAMI LIMITED v HAIN NSW Supreme Court of Appeal 01/04/2008 Full Decision	Motor Accidents Compensation Act 1999 (NSW)	A passenger of a vehicle entered into a car with an intoxicated driver and sustained an injury. The question was whether an ordinary person could have foreseen that accepting a lift from the intoxicated driver was exposing them to injury. The Trial Judge did not find contributory negligence on the part of the passenger, Mr Hain. This Appeal was confined to challenge that finding.	The Court of Appeal found that the trial judge was correct in identifying the test to be applied, namely whether the defendant has established, based on the factual circumstances of each case, that the plaintiff ought to have been aware of any impairment.
Kollas v Scurrah New South Wales Court of Appeal 05/02/2008 Full Decision		The Defendant owed a duty to take reasonable care for the safety of the Plaintiff as a fellow user of the highway. Whether the reasonable response of a prudent driver towing an oversize vehicle slowly on a highway required the activation of the hazard lights and/or a flashing emergency light.	Driving on the road in the conditions on the day did not require a reasonably prudent driver to do more to alert following drivers to the risk posed by reason of the vehicle's slow speed relative to other traffic than what the Defendant did.
Optrade Investments P/L v Telik Ceiling Systems P/L NSW Supreme Court 21/05/2004 Full Decision		Was it procedurally unfair for the Local Court to enter ex parte judgment against a party who was unrepresented at a hearing?	If a party was, or should have been, aware of a hearing date, it is not a denial of natural justice for the court to enter ex parte judgment should they fail to attend.
Mulkearns v Chandos Developments Pty Ltd Supreme Court 18/11/2003 Full Decision	Evidence Act s79	How much specialised knowledge is required of an �expert' and will an expert be disqualified where they know one of the parties.	When considering whether someone is an expert, the Court is to turn its mind to whether the person�s evidence would assist the court. There is no prohibition in Australia against experts giving evidence in cases involving their acquaintances.
Justelius & Anor v McIlwraith Supreme Court 12/11/2003 Full Decision	Common law	Is it appropriate to request an adjournment in writing without appearing at Court?	Such applications �may be seen as an attempt to force an adjournment and frustrate the other party and the hearing of the matter... If a party chooses not to appear in Court, the party takes the risk that the proceedings may be heard ex parte.�
Australian Automotive Repairers� Association (Political Action Committee) Inc v NRMA Insurance Ltd (No 2) Federal Court 04/11/2003 Full Decision	s47(7) Trade Practices Act Motor vehicle property insurance	In a claim against an insurer alleging exclusionary business practices, namely a �preferred repairer scheme�, should an insured be allowed to intervene in the case to present evidence on his own behalf?	Intervention should only be allowed where the proposed intervener can clarify issues for the court. In this case the insured could not reasonably be of assistance and leave to intervene was refused.
SRA of NSW v Sun Alliance and Royal Insurance Australia Limited NSW Court of Appeal 03/10/2003 Full Decision	Section 151Z(1)(d) Indemnity from MVA CTP insurer	Does Section 151Z(1)(d) allow an employer, who has paid compensation to an injured Worker, to obtain an indemnity from the employer's Motor Vehicle Third Party Insurer for the compensation so paid in circumstances where the injured employee sustained his injury as a result of the negligence of a fellow employee who was driving a crane insured under the Third Party Policy?	An indemnity under Section 151Z(1)(d) can only be sought from the person with liability to pay damages in respect of injury. In the circumstances of this claim, the negligent fellow employee, and SRA, vicariously as his employer, were liable, not the insurer. Accordingly, the employer was not entitled to an indemnity from its Third Party Motor Vehicle Insurer.
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA Court of Appeal 12/09/2003 Full Decision	Circumstantial Evidence, no direct evidence	Had the Court erred in drawing inferences based on circumstantial evidence where there was no direct evidence?	In a case where there is no direct evidence a Court is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation, and the evidence is strongly suggestive of the inference.
Avanes v Club Marconi of Bossley Park Social Recreational & Sporting Centre Ltd & Ors NSW Court of Appeal 11/07/2003 Full Decision	findings of fact poor light expert	Whether an appellate court will interfere with a decision validly (but erroneously) made by a trial judge.	An appellate court should give consideration to a trial judge�s findings of fact, but will itself weigh the evidence and can overturn the findings if it considers the trial judge erred in comprehending and evaluating the evidence.
Suncorp Metway Insurance Limited v Scarf NSW Court of Appeal 03/07/2003 Full Decision	Insurance Contracts Act s28(2). Motor vehicle property damage.	Is it difficult to overturn on appeal a finding by a trial judge in favour of the party not carrying the burden of proof?	If the trial judge enters a finding in favour of the party not bearing the burden of proof, an appellate court will only interfere where the trial judge has clearly proceeded on a wrong principle.
Ayteniz v NRMA Insurance NSW Supreme Court 19/05/2003 Full Decision	allegations of fraud. onus of proof	Does the onus of proof always lie with the insurer in claims involving allegations of wilful misconduct and fraud?	Where an insured cannot satisfy the Court that the accident occurred in circumstances attracting the operation of the insurance policy, the insured�s claim will fail regardless of whether the insurer can positively establish fraud.
General Motors Acceptance Corp Australia v RACQ Insurance Ltd Queensland Supreme Court 12/02/2003 Full Decision	s48 Insurance Contracts Act 1984	If an insured deliberately destroys a financed insured vehicle, is the insurer entitled to deny the financier's claim under the policy?	Section 48 of the Act allows an insurer to apply any defence it would have had against the insured to anyone claiming under the policy. If intentional destruction is not covered under the policy, the insurer is entitled to deny indemnity to the financier.

Glossary of Common Terms

Arbitrator/Arbitration

A senior solicitor or barrister retained by the Court instead of a Magistrate to hear cases that are not complex. An Arbitration is the hearing of such cases.

Assessor

A specially appointed judicial officer who determines cases worth $10,000 or less. There are currently only 2 assessors in NSW, who sit in the Downing Centre Local Court, and occasionally at Parramatta and North Sydney. At other courts, an Assessor's role is carried out by a Magistrate.

Cross-Claim

A document filed to recover money from a person/company that is already suing you, usually on the basis of disputed liability, but sometimes on an unrelated basis.

Demurrage

A claim for loss of use of an item, commonly a motor vehicle.

Default Judgment

A judgment entered on a Statement of Liquidated Claim in the absence of a Defence.

Examination Summons

A procedure whereby a debtor is required to attend Court and bring financial documents with him or her. It is used to ascertain what goods the debtor might have worth seizing, or how much money they can afford to pay by instalments.

Garnishee Order

A Court order requiring a debtor's employer to pay a certain sum per week into Court for the benefit of the creditor, rather than to the debtor. There is a minimum amount per week that the debtor must be left with for living expenses.

Magistrate

The Local Court equivalent of a Judge, and the highest "rank" in the Local Court.

Offer of Compromise

A formal offer of settlement put once proceedings have commenced. Failure to accept one can have serious costs consequences.

Registrar

A judicial officer appointed to handle the interlocutory stages of proceedings so as to free up time for other officers to hear cases.

Statement of Claim

A document filed to commence proceedings. Can be Liquidated or Ordinary. Liquidated claims should be ones where there is no element of uncertainty as the proper amount of the claim. However, claims for the cost of repairs to a motor vehicle can be commenced by Statement of Liquidated Claim (Part 5 rule 1 of the Local Court Rules)

Summary Judgment

A judgment entered on an Ordinary Statement of Claim in the absence of a Defence.

Third Party

The person named in a Third Party Notice. Not to be confused with the common usage "third party", meaning a person other than the insured.

Third Party Notice

An alternative to a Cross Claim (see above), this document is filed to recover an amount from someone who is not the person suing you. The amount sought to be recovered might be contribution towards an amount owed to the Plaintiff, or might be payment of the Defendant's own repairs. Commonly also used by a Defendant to seek to shift blame to another Defendant.

Writ of Execution

A document authorising the NSW Sheriffs to seize property belonging to the Defendant in payment of a debt.

Useful Facts

Australian Road Rules

The Australian Road Rules became law in NSW on 9 December 1999. Prior to that, the rules for drivers were contained in the Road Transport (Safety and Traffic Management) Regulations 1935.

Defences, Third Party Notices and Cross-Claims

The Local Court Rules provide that once a Defence has been filed by a party, that Defendant has no right to file a Cross-Claim or Third Party Notice. If the Third Party Notice or Cross Claim is not filed at the proper time, it can only be filed by consent of all parties or with leave of the Court.

Demurrage

The Court of Appeal has decided (in Anthanasopoulos v Moseley) that if a Plaintiff requires a replacement vehicle after an accident, they are entitled to claim demurrage, even if they did not pay for the replacement vehicle. Their entitlement to make the claim is based on the fact that they are entitled to compensation for the loss of use of their vehicle.

Interest is not an entitlement.

It is entirely at the discretion of the Court, and the entitlement to ask for interest arises when a Statement of Claim is filed. Under the Local Court rules, the Court only has power to award interest if it awards damages equal to or in excess of $1,000. The current rate of interest is, and has been since 1 March 2002, 9% per annum.

Legal Costs

In the Small Claims Division of the Local Court, legal fees are strictly regulated. The "scale" fees for a matter are based on it's magnitude (ie. its dollar value), not its complexity. In the General Division, costs are "at large", meaning any reasonable fees can be recovered from the unsuccessful party.

Right of Appeal

There is no right of appeal from a decision of an Assessor unless the basis of the appeal is denial of natural justice (ie. an unfair hearing) or lack of jurisdiction (ie. the Assessor determines a case he is not entitled to hear). For this reason, complex cases or "test" cases are often heard in the General Division even when they are worth less than $10,000.

Recent developments in Case law Detailed versions

Click on the case name to be taken to the full judgment in .pdf format

Decision / More Info	Legislation	The question raised	The new position
AAMI LIMITED v HAIN [2008] NSWCA 46 01/04/2008 NSW Supreme Court of Appeal Beazley and Tobias Ja and McClellan CJ District Court of NSW Charteris DCJ	Motor Accidents Compensation Act 1999 (NSW)	A passenger of a vehicle entered into a car with an intoxicated driver and sustained an injury as a result of the driver's impairment. The question was whether an ordinary person could have foreseen that accepting a lift from the intoxicated driver was exposing them to a risk of injury. There was no dispute that the driver of the vehicle, Mr Wilson, was negligent. However, it was submitted that the passenger was also guilty of contributory negligence as he accepted the risk of being a passenger when the driver was intoxicated. The Court considered Section 138(2)(b) of the Motor Accident Compensation Act 1999 (NSW). Section 138 (2) (b) (ii) required the resolution of two questions. 1. Was Mr Wilson's driving ability impaired as a consequence of the consumption of alcohol? The Court held that it clearly was. 2. Whether Mr Hain ought to be aware of Mr Wilson's impairment. The issue which the Court of Appeal had to determine was whether a reasonable person would have foreseen that accepting a lift from the driver exposed them to injury by reason of the driver's intoxication.	There was no evidence of Mr Wilson being under the influence of alcohol, which included evidence given by witnesses that he did not have many drinks, and was at no stage thought to be acting abnormally. The evidence in relation to the alcohol in Mr Wilson's system, was a reading of 0.15, 3 times the legal limit as well as 0.2 milligrams per litre of Citalopran, an anti-depressant drug. The expert opinion was that a reading of 0.15 would produce heavy intoxication in almost all people. The Court distinguished the facts of this case from that of the High Court case of Joslyn v Berryman (2003) 214 CLR 552. Critical to the finding by the High Court of contributory negligence in Joslyn was the fact that the plaintiff and the defendant had been drinking together for some hours after which, the defendant was known to have been staggering drunk. The plaintiff also knew that the defendant had drunk to excess on the previous evening and should have known of the combined affect of alcohol and tiredness in impairing her ability to drive. The Trial Judge in the District Court proceedings, found as follows: 'Taking into account all of those factual findings, in my view the question as to whether the defendant has satisfied this Court on the balance of probabilities that the plaintiff ought to have been aware of Mr Wilson's impairment must be answered 'no'. As a result the defense of contributory negligence must fail..' The Court of Appeal found that the trial judge was correct in identifying the test to be applied, namely whether the defendant has established that the plaintiff ought to have been aware of the impairment. The Appeal was dismissed.
Kollas v Scurrah [2008] NSWCA 17 05/02/2008 New South Wales Court of Appeal Mason P, Basten JA, Bell JA District Court of New South Wales Gibb DCJ		The Plaintiff was injured as the result of a collision between the front of the heavy vehicle which he was driving and the rear of a combination driven by the Defendant. The Defendant's vehicle was travelling at about 35 km/h at the time of the collision. The Plaintiff claimed that the Defendant's vehicle should have been driven as far off the main carriageway as possible, and that hazard lights and/or flashing emergency lights on the Defendant�s vehicle should have been activated to alert following traffic to its slow speed. The Appellant failed at trial. On appeal the Plaintiff confined the case to negligence on the grounds that the hazard lights or flashing emergency lights should have been activated on the Defendant's vehicle to alert the following traffic that it was travelling very slowly, a fact that may not have been apparent to a driver approaching from the distance.	The Defendant owed a duty to take reasonable care for the safety of the Plaintiff as a fellow user of the highway. The Defendant was driving an over-sized vehicle on a straight stretch of dual lane highway, in daylight with no rainfall, at a slower speed than that compared with the flow of traffic. The Defendant�s vehicle was not found to be moving in hazardous conditions for the purposes of Clause 55 (e) of Road Transport Regulation 1998. There is no minimum speed for vehicles travelling on a highway and it is common for slow vehicles to travel on the highway from time to time. The Plaintiff claimed that the failure to use flashing emergency lights established negligence on part of the Defendant. The Defendant�s vehicle conformed to the conditions of his permit. Those conditions required that a reflective sign be displayed on the rear of the vehicle stating that it was oversize and under tow. The sign, which the Defendant attached to his vehicle, was 2.5 times the area of the sign that the condition of his permit required. The conditions of the permit with respect to the use of flashing lights were directed to nighttime driving and this was a daylight tow. The road was wet but it was not raining and there was no obstacle to visibility. The Defendant was travelling slowly on a multi-lane highway in moderate traffic such that his vehicle was regularly being passed by vehicles that were travelling at a faster speed. The sign served to alert following traffic to the fact that the defendant�s vehicle was travelling slowly. Information that a vehicle was oversize and under tow as a matter of common sense is information suggestive of the probability that it is travelling slowly. The appearance and dimensions of the sign were such as to put following drivers on notice of the features of the defendant�s vehicle that made it a potential hazard including that it was likely to be travelling at a speed considerably less than the 110 km/h speed limit. At a distance of 100 meters a driver had ample opportunity to take steps to avoid colliding with the respondent�s vehicle. The Plaintiff was seated in an elevated position in the cabin of his prime mover and there was no obstacle to his seeing the back of the Defendant�s vehicle over the top of the car, which was immediately in front of him. The Defendant�s vehicle was travelling slowly and the Plaintiff was closing in on it, and should have seen the sign on the Defendant�s vehicle. Driving on the road in the conditions on the day did not require a reasonably prudent driver to do more to alert following drivers to the risk posed by reason of the vehicle's slow speed relative to other traffic than what the Defendant did. Regulation 55 of the Road Transport Regulations 1999 (NSW) has a broad application. Where a vehicle is creating a potential hazardous situation, it may display a flashing or rotating light visible from 200 metres. However, where the vehicle is an emergency vehicle or law enforcement vehicle, it must display a flashing light.
Optrade Investments P/L v Telik Ceiling Systems P/L [2004] NSWCA 424 21/05/2004 NSW Supreme Court Harrison SCM Local Court Small Claims Division Registrar		The solicitors for O and T attended a pre-trial review in the local court at Parramatta, and were advised that a hearing date would be allocated in due course. T received a notice of the hearing date and served it on O's solicitor in a bundle of evidence. O's solicitor had seen most of the evidence before and did not notice the court's notice amongst it. She had moved offices and did not receive a notice from the court herself. O was not represented at the hearing and ex parte judgment was entered in favour of T. O appealed: � Had O been denied natural justice in the circumstances?	Master Harrison considered that as O's solicitor had received a notice of the hearing (even if it was addressed to T's solicitor), there was no denial of natural justice. Appeal dismissed.
Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084 18/11/2003 Supreme Court Young CJ	Evidence Act s79	M sought to give evidence of a property�s value in an affidavit. C objected to M�s qualifications to do so. � Was M disqualified from giving expert evidence in his own case � Was M an expert	The Court considered there was no prohibition in Australia against expert evidence from sources familiar with a party. The Court accepted that M had greater knowledge than an ordinary lay person but not so much knowledge that his opinion was of assistance to the Court. Further, M had not complied with the Expert Code of Conduct in preparing his evidence. M�s evidence of valuation was rejected.
Justelius & Anor v McIlwraith [2003] NSWSC 1039 12/11/2003 Supreme Court Malpass M Local Court Jerram LCM	Common law	Mr and Mrs J commenced proceedings but then failed to appear at the arbitration and re-hearing. The claim was dealt with in their absence and judgment was entered against them. They filed a motion to set aside the judgment. The motion was unsuccessful. They appealed: � Had the magistrate at the re-hearing erred in not taking into account medical evidence provided to the Court on the morning of the re-hearing?	The Magistrate had taken all relevant material into account and had validly exercised her discretion not to grant an adjournment. The medical evidence provided to the Court related only to Mrs J and no explanation had been given for Mr J�s failure to appear (particularly as he delivered the material to Court at 9.00am on the morning of the re-hearing). The Court said �Last minute applications of such a nature are becoming far too common (particularly by parties who are unrepresented) and are being used to obtain adjournments to which the party is not entitled�. Appeal dismissed.
Australian Automotive Repairers� Association (Political Action Committee) Inc v NRMA Insurance Ltd (No 2) [2003] FCA 1301 04/11/2003 Federal Court Lindgren J	s47(7) Trade Practices Act Motor vehicle property insurance	A commenced proceedings in the Federal Court against N claiming N has conducted and intends to continue conducting exclusive trade practices in contravention of the Act. N allegedly implements a �Preferred repairer scheme� under which insureds are required to have repairs to their vehicle undertaken by repairers on the insurers list of preferred repairers as a condition of receiving certain benefits under their insurance policies. A�s members are repairers who are not on this list. The claim was struck out in December 2002 but has been re-pleaded and is continuing. � Whether one of N�s insured�s should be granted leave to intervene in the matter to give evidence.	The purpose of an intervention is �solely to assist the court in its task of resolving the issues raised by the parties and does not include the leading of evidence or examining the witnesses�. A was in a position to lead the evidence N's insured wished to lead. As the insured would not have been able to take part in the proceedings other than to make submissions, the Court considered there was no possibility of him providing any real assistance and leave was refused.
SRA of NSW v Sun Alliance and Royal Insurance Australia Limited 2003 NSWCA 288 03/10/2003 NSW Court of Appeal Mason P, Sheller JA and Foster AJA NSW District Court Rolfe DCJ	Section 151Z(1)(d) Indemnity from MVA CTP insurer	An SRA employee was injured in the course of his employment due to the negligence of a fellow employee, who was driving a crane owned by SRA and insured by Sun under a Motor Vehicle Third Party Policy. The policy provided both SRA and the fellow employee with a statutory right of indemnity. SRA sought indemnity from Sun in respect of statutory compensation paid by SRA based on Section 151Z(1)(d) of the Workers Compensation Act 1987 (�the Act�). The Trial Judge held that Section 151Z(1)(d) had no application because Section 3 of the Employees Liability Act 1991 had removed any liability of the negligent employee to pay damages to an employer in the circumstances. �Does Section 151Z(1)(d) allow for for a self insured employer to claim an indemnity from its Third Party Insurer, in the circumstances of this claim?	Section 151Z(1)(d) confers no right of indemnity against the insurer because the insurer was itself never liable to pay damages to the injured employee. An indemnity under Section 151Z(1)(d) can only be sought from the person with liability to pay damages in respect of the injury. In the circumstances of this claim that person is the negligent fellow employee, and SRA, vicariously, as his employer, not the insurer. The law distinguishes between the primary obligation of a person, arising under a tort, statutory or contractual obligation directly to another, and the secondary obligation of a guarantor or insurer, who may be bound to indemnify the person primarily liable and whose indemnity is qualified by reference to the primary obligation. The only trigger for the right conferred by Section 151Z(1)(d) is a liability to pay damages in respect of an injury which also happens to be compensable under the Act. Had the negligent SRA employee been sued by the injured Worker, then the negligent employee could have sought indemnity under the policy, but that would not be an indemnity right conferred by Section 151Z. Had SRA been sued for damages by the injured Worker in respect of its vicarious liability for the negligent Worker, SRA could not have sort indemnity from the negligent Worker because of Section 3(1)(a) of the Employees Liability Act 1991. The appeal was dismissed.
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA [2003] NSWCA 268 12/09/2003 Court of Appeal Ipp JA, Young CJ in Equity, Davies AJA NSW District Court Certoma ACDJ	Circumstantial Evidence, no direct evidence	E worked as a runner on a recycling truck and was found unconscious on the road behind the truck. There were no witnesses and E was unable to remember. A freshly broken tree branch was found on the road 17m from E. An inspection of the rear platform of the truck by a police officer showed it to be loose and unstable. A subsequent inspection at P�s premises revealed the platform may have been repaired immediately after the accident. E sued for damages and succeeded based on inferences drawn from circumstantial evidence by the trial judge, namely the recycling vehicle was being driven at a negligent speed and/or had failed to drive in a safe manner such as to avoid any overhanging trees and that the platform was dangerous. The trial judge relied on the evidence of E as to his experience of common speeds reached by the Defendant�s vehicle and rejected evidence from P that the vehicle was travelling at 20k per hour. He also considered the presence of a freshly broken tree branch on the road near E and the evidence of a police officer as to the condition of the platform. P appealed. Was there a sufficient evidentiary basis for the inferences which the trial judge drew in concluding P was negligent?	The trial judge was correct in drawing inferences from circumstantial facts in the absence of any direct evidence as long as that evidence goes beyond speculation. Circumstantial evidence available to the trial judge was insufficient to support a finding of excessive speed, and the trial judge erred in rejecting the evidence of the driver and assistant and relying on E�s recollection of previous experiences only. The Trial Judges� findings in respect of negligent driving (failure to avoid trees) and the dangerous platform were supported by the circumstantial evidence and the trial judge had not erred in his finding of negligence against P. Appeal dismissed.
Avanes v Club Marconi of Bossley Park Social Recreational & Sporting Centre Ltd & Ors [2003] NSWCA 184 11/07/2003 NSW Court of Appeal Sheller, Ipp, Tobias JJA District Court Delaney J	findings of fact poor light expert	A, fell at night on a sloping footpath at CM�s premises and claimed damages for personal injury. At trial, unchallenged expert evidence was led by A that the low light level combined with the slope of the path posed a real and obvious danger to pedestrians. Delaney DCJ accepted lay evidence led by CM that the area lighting was �adequate� and found in favour of the Defendants. A appealed: � Did the trial judge erroneously conclude there was sufficient lighting? � Did the trial judge misunderstand A�s expert report?	Delaney DCJ erred in accepting the lay evidence presented by CM over the unchallenged expert evidence presented by the Plaintiff. The trial judge�s findings of fact, although validly made on the evidence, could be overturned by an appellate court. Sheller JA quoted from Warren v Coombes: �in deciding what is the proper inference to be drawn from [the evidence], the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.� Delaney DCJ had erroneously ignored the overwhelming evidence presented by A. Appeal allowed.
Suncorp Metway Insurance Limited v Scarf 2003] NSWCA 185 03/07/2003 NSW Court of Appeal Palmer J, Handley and McColl JJA District Court Boyd-Boland AJ	Insurance Contracts Act s28(2). Motor vehicle property damage.	S�s Porsche was damaged in an accident. SM denied the claim on the basis that S� son, who was affected by alcohol, was driving the vehicle. S nominated M as the driver of the vehicle. M initially claimed the car had been hijacked, but later gave evidence that he was the driver. Conflicting expert evidence was tendered as to whether M could have been the driver. Boyd-Boland ACDJ (noting that the case was finely balanced), favoured the evidence of S� expert and found that M was the driver of the vehicle at the time of the accident and awarded $224,527.00.. His Honour also rejected SM�s claim that they should be allowed to void the policy as a result of S incorrectly nominating the garaging address of the vehicle. He considered that the misrepresentation had not been made fraudulently. Suncorp appealed: � Whether His Honour�s reasoning was flawed .	McColl JA quoted from Dearman v Dearman, that if the lower court, �having seen and heard the witnesses comes to a conclusion in favour of the party upon whom the burden of proof does not lie it is almost hopeless to try to induce a Court of Appeal to interfere with that finding unless it has clearly proceeded upon a wrong principle�. Boyd-Boland ADCJ has not acted on such a wrong principle and there was therefore no justiciable error of law for the Court of Appeal to act upon. Likewise there was no error in the lower court�s reasoning as to the garaging question. Appeal dismissed with costs.
Ayteniz v NRMA Insurance [2003] NSWSC 406 19/05/2003 NSW Supreme Court Harrison M Local Court Giles LCM	allegations of fraud. onus of proof	A�s car was destroyed by fire whilst he was fishing 200m away with his brother-in-law. The doors were locked and the windows were up. Accelerant had been used and the fire began inside the engine bay. There was no sign of forced entry to the vehicle. NRMA denied his claim and A sued. Local Court Magistrate Giles found it was more probable than not that the Plaintiff had been engaged in wilful misconduct that caused the loss, and found that A had not met the burden of proof to invoke the operation of the policy. A appealed, alleging that the Magistrate had erroneously shifted the burden of proof in cases of alleged fraud from the Defendant to the Plaintiff.	Harrison SCM quoted from Craig v Associated National Insurance Co Ltd (1983) 71 FLR 455 that �The onus remains on the insured to prove the fortuitous and accidental nature of the loss and to exclude on the balance of probabilities the allegation of the insurer that the vehicle was scuttled�. The Magistrate having determined the matter solely on the question of wilful misconduct, there had been no reversal of the onus of proof concerning allegations of fraud. There was accordingly no error of law and the appeal was dismissed.
General Motors Acceptance Corp Australia v RACQ Insurance Ltd Unreported 12/02/2003 Queensland Supreme Court Muir J	s48 Insurance Contracts Act 1984	I purchased a vehicle with finance from G. The vehicle was insured with R, and G�s interest in the vehicle was noted. I deliberately destroyed the vehicle, while finance was still owing. G attempted to claim under the policy with R. G argued that the loss of the vehicle was an �accident� within the meaning of the policy, as it was not G�s intention or act that caused the damage to the vehicle. � To deny indemnity, does the insurer need to establish an exclusion against G or only against I? � Could the loss be classified as an �accident�?	Section 48(3) operates to allow an insurer to deny indemnity to a person claiming under the policy if it can be established that the insurer would have had a valid defence against the insured. The loss did not come within the definition of �accident�, which referred to events �unexpected and unintended from your point of view�. �You� was defined in the contract as the insured, and when determining what was unexpected and unintended, it was the insured�s position that was to be considered. As the insured intended to destroy the vehicle, its loss could not be described as an accident.

Law as at 20 May 2012