Section 57(2)(b) MAIA – Exclusion Schedule – Falling between 2 stools

Bramble v Suncorp Metway Insurance Limited [2010] QDC 47

 

The applicant sought to extend the limitation periods pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”). In rejecting the application his Honour Dorney QC applied Kelvin John Best and I & G Selke Pty Ltd v Suncorp Metway Insurance Limited [2003] QDC 559.

Unfortunately, for the applicant their Application for Compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) was previously rejected.  

In coming to decide the MAIA did not apply, his Honour found that the MAIA exclusion in the Schedule (s 3(2)) applied, and that on no view of the facts could indemnity extend and it was accordingly appropriate to deal with it summarily.

 His Honour summarised Best’s decision as follows:

[13]

What Best decided, on the legal plane, was that:

• If a situation arises where, on the appropriate facts, it is possible to determine that on no view of the facts alleged are they capable of giving rise to entitlement to indemnity from the motor vehicle insurer because they necessarily fall within a statutory exclusion to the policy, it would seem to follow from the approach adopted in Palmer that it is appropriate to decide the issue in a summary way: at p. 8.

• It was not disputed that s 3(2)(b) applied because it was the applicant who was the driver of the motor vehicle: at p. 9.

• It seemed clear that the applicant was seeking to assert that there was a failure to provide a safe system of work on the part of the employer which was a cause of the injuries suffered by the applicant, with the potential for a claim for a breach of duty to provide safe plant and equipment in the form of a safe motor vehicle if there was something wrong with the motor vehicle: at pp. 9-10.

• The reference in the latter part of s 3(2)(a) to “some other duty of care to the employee” suggests on ordinary principles of construction that the earlier reference to a failure to provide a safe system of work was intended to be a reference to part of the duty of care: at p. 10.

• It seems inevitably to follow that the correct construction of s3(2)(a) is that it applies whether the cause of action is in tort, in contract or for breach of statutory duty: at p. 11.

• It seems to be clear, whatever the ultimate scope of the applicant’s claim and whatever the ultimate position may be found to be, in view of the determination at the trial of the relevant facts, that the applicant is claiming something which falls within s 3(2)(a) and that, since s 3(2)(b) is uncontroversial, it follows that the injury the applicant claims to have suffered would be one which, if it really occurred, was an injury to which paragraph (a) applied and, therefore, there was no indemnity provided under the policy to the first respondent in respect of any liability of the first respondent to pay damages to the applicant for that injury: at p. 11.

Brisbane Barrister – David Cormack

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