Phyllis Jeffries was killed instantly when a CountryLink Xplorer train collided with her motor vehicle at a level crossing. As a result of the collision, both carriages of the train were derailed and rail infrastructure was damaged. The owners of the train and rail infrastructure sought to recover repair costs from Jeffries' third party property insurer, Vero Insurance. Section 51 of the Insurance Contracts Act provides a third party the right to recover against an insurer where its insured has died.

The policy of insurance provided that Vero would indemnify its insured against liability for loss or damage to property 'as the result of an accident'. Cover for damage which was 'intentionally caused' was excluded from the policy. Vero argued that its insured driver had committed suicide and therefore the damage was not the result of an accident as required by the policy.

Witnesses gave evidence that the car had initially stopped at the railway crossing for a short period and then slowly moved onto the railway line. Vero submitted that Jeffries intentionally positioned her vehicle in the path of the train. However, the Court accepted that as the vehicle would creep forward when in gear and idling, and as the accelerator was not activated at the time of the collision, it had not been purposely driven onto the tracks.

The train driver gave evidence that he had sounded his whistle twice before the impact, however the Court considered it unlikely that Jeffries heard the whistles as she often played her music loudly and had the windows closed at the time of the collision.

The medical records of Dr Moroney, Jeffries' general practitioner for more than 30 years, repeatedly referred to 'stress' and 'depression'. In addition, Jeffries had ceased taking prescription medication for her depressive state before the collision. Dr Moroney expressed the view that that Jeffries had committed suicide. Two of three expert psychiatrists also concluded that it was highly probable that Jeffries' death was the result of an intentional act. The Court, however, preferred the evidence of Jeffries' son that she would not have taken her own life even though she suffered from depression or had any mental health issues.

The Court held that Jeffries did not intentionally cause the collision. Vero Insurance was ordered to pay damages in excess of $3 million.

Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 631

On the face of it, this decision appears to be against the weight of evidence. Query whether the Court's decision might have been different, had the intentional act been of a less sensitive nature

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