In the case of Suncorp Metway Insurance Ltd v Wickham
Freight Lines  QSC 237, the Queensland Supreme Court was
asked to consider the scope of Queensland's Motor Accident
Insurance Act 1994 (Qld) (MAIA) and statutory CTP policy of
Suncorp argued cover was not extended under the CTP policy to
accidents arising in New South Wales in special circumstances where
a driver of a vehicle was 'deemed' to be at fault under a
New South Wales legislative provision enacted in 2006.
This test case is the first time a Queensland CTP insurer has
challenged the scope of the Queensland policy and its interaction
with the specific provision in the NSW legislation. The outcome, if
decided in favour of the insurer, would have impacted on every
driver of a Queensland registered vehicle who drove across the
border into NSW and injured a child in circumstances where they
were not negligent.
A child sustained horrific injuries when hit by a truck owned by
Wickham Freight Lines in 2008 and sued for damages in NSW.
The truck was covered by a CTP policy of insurance issued by
A special provision enacted under the Motor Accidents
Compensation Act 1999 (NSW) (MACA) meant that, where the child
was injured, but the truck driver was not negligent, the MACA will
'deem' the driver to be at fault. This enables the injured
child to recover some damages such as hospital, medical,
pharmaceutical, rehabilitation and certain other expenses.
Suncorp's position was that it could not indemnify Wickham
Freight Lines for these special entitlement damages if the driver
was found not negligent.
The key issue was the meaning of 'wrongful act or
omission' contained in MAIA and whether the statutory policy
contained in the Queensland Act responds to a case of 'deemed
fault' under the NSW legislation.
Court's decision and reasoning
Suncorp submitted that liability must be real, not fictional.
'Deemed fault' does not amount to a 'wrongful act or
The competing argument was that the NSW Act deemed a driver to
be at 'fault'. 'Fault' as defined in the NSW Act
means 'negligence or any other tort'. Therefore the
liability created by the NSW provision deems the injury to have
been caused by the 'fault' of the owner or driver and this
definition satisfies a 'wrongful act or omission' within
the meaning of MAIA.
His Honour was not prepared to find that the liability to pay
damages pursuant to the NSW Act was not real. The statute created
the category of legal liability and it fell within the ordinary
meaning of 'wrongful act or omission' in the Queensland
The definition of 'wrongful act or omission' was not
exhaustive so as to limit it to negligence or deliberate
His Honour stated the objectives of the Queensland Act would not
be advanced by interpreting the language of 'wrongful act or
omission' as being limited to civil wrong in the character of a
common law cause of action. This would have the effect of depriving
parties of insurance cover for civil liabilities created and
defined by statute.
This decision means Queensland drivers can be assured there is
no gap in their CTP cover when driving in New South Wales.
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Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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