Herbert Jansen v Michael Anthony Thornton and Another [1996] ACTSC 62 (14 June 1996)

SUPREME COURT OF THE ACT

HERBERT JANSEN v. MICHAEL ANTHONY THORNTON AND ANOTHER
No. SC91 of 1992
Number of pages - 11
Insurance

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Insurance - double insurance - claims for contribution between NSW workers' compensation insurance and NSW motor accident insurer - whether policies covered identical risk and/or identical happening giving rise to risk - exclusory words in NSW workers' compensation policy - whether cover excludes liability for injury in motor accident in NSW when action brought in ACT.

Workers Compensation Act 1987 (NSW)

Motor Accidents Act 1988 (NSW)
Law Reform (Miscellaneous) Provisions Act 1955 (ACT), Part IV

Kontis v. Barlin [1993] ACTSC 26; (1993) 115 ACTR 11
Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41
Stevens v. Head [1993] HCA 19; (1993) 176 CLR 433
Albion Insurance Company Limited v. Government Insurance Office of New South

Wales [1969] HCA 55; (1969) 121 CLR 342 at p.345

Lister v. Romford Ice and Cold Storage Co. Ltd. [1956] UKHL 6; (1952) AC 555
QBE Insurance Limited v Government Insurance Office of New South Wales

(1986) 4 ANZ Ins.cas. 60-744
Marmo Terrazzo Products Pty Limited v. FAI Workers Compensation (NSW) Ltd and Another (unreported, NSW Court of Appeal, 23 December 1994)

HEARING

CANBERRA, 7 and 8 May 1996
14:6:1996

Counsel for 1st and 2nd defendants: Mr. P. Deakin QC, with
Mr. M.A. McDonogh

Solicitors for 1st and 2nd defendants: Abbott Tout Harper and Blain

Counsel for 1st, 2nd and 3rd parties: Mr. G. Little

Solicitors for 1st, 2nd and 3rd parties: Deacon Graham and James

DECISION

MILES CJ This is a claim for contribution between insurers, arising out of third party proceedings which arose out of a claim for personal injuries. The plaintiff (the worker), who would have lost interest in the case long ago, was injured on 11 October 1990. He was a passenger in a truck driven by the defendant (the driver). The truck left the road and tipped over. The worker sued the driver claiming damages for personal injuries for negligence. The statement of claim made the usual allegations of driving at an excessive speed, failing to keep a proper lookout, failing to keep control of the vehicle and so on. The driver made the usual denials and also alleged contributory negligence on the part of the worker, who, it was alleged, had been asleep in the vehicle and was not wearing a seatbelt or other means of restraint.

2. By the time the worker's claim came on for hearing on 15 August 1995, the driver had joined the third party (the employer), claiming contribution on the ground that the worker had been travelling in the course of his employment (as indeed had the driver) and that the employer should have made sure that the worker was wearing a seatbelt or was otherwise restrained in the vehicle. The third party claim against the employer was that the employer, if sued, would have been liable to the worker in negligence and also in what was called, mysteriously, "breach of duty". Apart from the claim in respect of the unidentified breach of duty, there was nothing remarkable on the face of the third party claim.

3. The worker gave evidence before the Master on 15 August 1995. The effect of his evidence was such that counsel for the worker and the driver were able to announce that those parties had been able to resolve their long-standing differences. Terms of settlement were filed and orders made and taken out. By consent, the worker recovered judgment against the driver for $367,449.11 with liberty to the driver to deduct $147,556.47. The latter sum was the amount previously paid to the worker on behalf of the employer as worker's compensation and associated expenses by MMI Workers' Compensation (NSW) Limited (the industrial injury insurer). Some limited directions were given by the Master as to the further conduct of the third party proceedings, including an order giving leave to the driver to add the industrial injury insurer as an additional third party. Eventually, by what process it is not clear, NRMA Insurance Limited (the motor accident insurer) was added as a second defendant.

4. Again there was nothing very unusual about the foregoing. But what does make the case remarkable is that it has hardly anything to do with the Australian Capital Territory. The worker received his injury in New South Wales. His employer carried on business in New South Wales. The employer was insured under the Workers Compensation Act 1987 of that State (the NSW Workers Compensation Act). The truck which was owned by the employer was registered in New South Wales and there was in force in relation to that truck a policy of third party insurance in accordance with the requirements of the Motor Accidents Act 1988 of that State. The only connection the case has with the Australian Capital Territory is that the plaintiff lived here and presumably received treatment for his injuries here. The plaintiff was perfectly entitled to bring his action in the ACT (see Kontis v. Barlin [1993] ACTSC 26; (1993) 115 ACTR 11). In doing so, he had to rely, on the one hand, on the law of New South Wales to provide him with a cause of action (Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41) and, on the other hand, on the law of the ACT to provide him with a procedure whereby his damages could be assessed once liability was established under the law of New South Wales (Stevens v. Head [1993] HCA 19; (1993) 176 CLR 433).

5. By a process of amendment of the pleadings, the issues which the Court is required to determine at this stage arise as follows.

6. At the time of the worker's injury the driver of the truck and the employer as owner of the truck were each insured by the motor accidents insurer in respect of liability for personal injury caused by the fault of either of them in the use or operation of the truck. The policy effecting that insurance was issued by the motor accident insurer pursuant to the Motor Accidents Act. The employer was insured also against liability under the NSW Workers Compensation Act 1987. I avoid the term "third party insurer", although it might be more accurate, because of confusion with the third party or third parties in the present proceedings. I avoid also the term "workers' compensation insurer", because the scope of the insurance policy covered liability independent of liability under the NSW Workers Compensation Act.

7. The motor accident insurer has been added as a second defendant since the worker recovered judgment, but might be better described as a second claimant for contribution.

8. The driver of the truck, in effect, the first claimant for contribution, initially sought contribution or indemnity from the third party, his employer, for the damages and costs for which the worker recovered judgment against the driver. In respect of liability to pay the judgment sum, the motor accident insurer has done so on behalf of the driver. The motor accident insurer now seeks contribution from the industrial injury insurer by way of one half of what the motor accident insurer has paid to the worker on behalf of the driver after certain arithmetical allowances have been made in respect of workers' compensation paid by the industrial injury insurer.

9. It is agreed or conceded on behalf of all parties to the contribution proceedings that the employer is vicariously liable for the negligence of the driver which resulted in the judgment in the worker's favour and resulted further in the payment of the judgment sum and costs to the worker on behalf of the driver by the motor accident insurer. An alternative claim by the motor accident insurer that the employer would, if sued, have been liable to the worker for breach of the employer's personal duty to take reasonable steps to secure the safety of its employees, including the worker, was not pursued.

10. Mr. Deakin QC, appeared for the driver and the motor accident insurer. He submitted on behalf of the motor accident insurer that the principle of dual or double insurance applies, because two independent insurers have insured the same insured in respect of the same risks on the same interest and in the same subject matter. That there is such a principle is clear. It dates back at least to the 18th century when it was widely applied in the area of insurance against marine loss. It applies no less in a situation where there is dual or double insurance in respect of what may be called compendiously employer's liability or industrial injury liability on the one hand and third party motor vehicle insurance on the other. So much was confirmed by the High Court in Albion Insurance Company Limited v. Government Insurance Office of New South Wales [1969] HCA 55; (1969) 121 CLR 342 at 345 where according to the majority (Barwick CJ, McTiernan J and Menzies J):

"There is double insurance when an assured is insured against the same
risk with two independent insurers. To insure doubly is lawful but
the assured cannot recover more than the loss suffered and for which
there is indemnity under each of the policies. The insured may claim
indemnity from either insurer. However, as both insurers are liable,
the doctrine of contribution between insurers has been evolved. It
began in the second half of the eighteenth century with Lord
Mansfield's decisions with respect to marine insurers and there is no
doubt that it now applies generally to insurance which provides the
insured with an indemnity. There is no reason why the doctrine should
not apply to insurance against liability to third parties and there
is every reason in principle that it should. The doctrine, however,
only applies when each insurer insures against the same risk, although
it is not necessary that the insurances should be identical. Thus one
insurer may insure properties A and Be against fire and the other
insurer may only insure property A against fire. Again, one policy
may be for a limited amount and the other may be for an unlimited
amount. One policy may cover the risk of a whole voyage and the other
may cover only part of the voyage. Differences of this sort may
affect the amount of contribution recoverable but they do not bear
upon the question whether or not each insurer has insured against the
same risk so as to give rise to some contribution. The element
essential for contribution is that, whatever else may be covered by
either of the policies, each must cover the risk which has given rise
to the claim. There is no double insurance unless each insurer is
liable under his policy to indemnify the insured in whole or in part
against the happening which has given rise to the insured's loss or
liability."

11. Kitto J described the test somewhat differently thus at 352:

"What attracts the right of contribution between insurers, then, is
not any similarity between the relevant insurance contracts as regards
their general nature or purpose or the extent of the rights and
obligations they create, but is simply the fact that each contract is
a contract of indemnity and covers the identical loss that the
identical insured has sustained; for that is the situation in which
"the insured is to receive but one satisfaction" (to use Lord
Mansfield's expression) and accordingly all the insurances are
"regarded as truly one insurance": Sickness and Accident Assurance
Association Ltd. v. General Accident Assurance Corporation Ltd. (1892)
19 Rettie, at 980; 29 ScLR 836 at 837."

12. What needs to be decided then is whether in the words of the majority judgment in Albion, each insurer is liable under its respective policy to indemnify the insured in whole or in part against the happening which has given rise to the insured's loss or liability. On that approach it is the occurrence or event which gives rise to the loss or liability to which attention must be given. On the approach of Kitto J, the inquiry is whether the loss is identical.

13. The insured's loss in the present case is the payment (or the liability to pay, it seems to me not to matter) of the judgment sum and costs to the worker. That payment was made by the motor accident insurer on behalf of the driver in consequence of the motor accident insurer's liability to indemnify the driver or the employer or both for their liability in respect of the worker's injury, that injury arising as it did out of the use of a motor vehicle.

14. The employer was also insured against liability in respect of the very same injury sustained by the worker by the provisions of a policy (the workers' compensation policy) which was issued by the industrial injury insurer in accordance with the NSW Workers Compensation Act. The policy provided in part as follows:

"IF ..... the Employer becomes liable to pay compensation under the
Act to or in respect of any person who is deemed by the Act to be a
worker of the Employer ..... or becomes liable to pay any other amount
in respect of the Employer's liability independently of the Act (being
a liability under a law of New South Wales) for any injury to any such
person) not including liability for damages in respect of a motor
accident as defined in the Motor Accident Act 1988 or liability in
respect of an injury, suffered by a person other than such a worker or
deemed worker, arising out of any rescue or attempted rescue)
THEN, and in every case, the insurer will indemnify the Employer."

15. These are provisions required by the NSW Workers' Compensation Act itself, the relevant provisions of which were effective from 1 February 1990 to 1 October 1991. On the latter date the exclusory words "liability for damages in respect of a motor accident as defined in the Motor Accidents Act 1988 or" were deleted: see cl.2(d), regulation No. 899 of 1989 and cl.2, regulation No. 497 of 1991 (NSW). There is a question which may be put aside for the moment, namely whether the deletion of the exclusory words from 1 October 1991 was retrospective.

16. It is not disputed and is sufficiently clear that, in the terms of the industrial injury policy, the vicarious liability of the employer to the worker for the driver's negligence meant that the employer became liable to pay an amount to the worker in respect of the employer's liability independent of the NSW Workers Compensation Act. The liability independent of the liability under the NSW Workers Compensation Act was a liability under a law of NSW, namely the common law of NSW (Breavington v. Godleman), although if proceedings were to be brought to enforce that liability in the ACT, damages were to be quantified under the law of the ACT (Stevens v. Head).

17. The question arises whether the exclusory words in brackets "not including liability for damages in respect of a motor accident as defined by the Motor Accidents Act 1988" apply in respect of the employer's liability to the worker. The term "in respect of" indicates a wide range of reference to connect the words preceding that term and the words following. "Motor accident" is defined by sub-s.3(1) of the Motor Accidents Act as "an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person". "Accident" is not defined.

18. The Motor Accidents Act, as I understand it, does not create, expand or circumscribe any cause of action which a person may have under the law of New South Wales. What it does for present purposes is, first, to set threshold limits which prevent a person who has a cause of action arising out of a motor accident from recovering judgment for damages below the threshold limits. Secondly, it sets caps or upper limits on damages which prevent such a person from recovering, on that cause of action, damages which exceed the limits. Put conversely in terms of liability, a defendant who incurs liability for injury arising out of circumstances which amount to a motor accident will not suffer judgment in respect of that liability for any amount of damages which is below the threshold or beyond the limits of damages fixed by the Motor Accidents Act. The basis at law of liability on the plaintiff's cause of action, however, remains unaffected: almost inevitably the plaintiff whose injuries are sustained in circumstances which amount to a motor accident and who wishes to sue the driver or the owner as vicariously liable for the fault of the driver, will do so relying on a cause of action in negligence. Other causes of action are, however, not inconceivable and liability in breach of contract or assault may be possible.

19. It appears to have been assumed by the parties to the contribution proceedings that the driver is entitled to indemnity from the employer. In the absence of some distinguishing circumstance, the assumption appears to be correct. An employee is usually entitled to look to the employer for indemnity in respect of any liability incurred as a result of any negligent act committed by the employee during the course of the employment: cf. Lister v. Romford Ice and Cold Storage Co. Ltd. [1956] UKHL 6; (1952) AC 555.

20. It appears also to have been assumed by the parties to the contribution proceedings that the motor vehicle insurer has paid the judgment sum and costs in satisfaction of it liability to indemnify the driver against his liability to pay the judgment sum and costs, the liability to indemnity arising from the provisions of a statutory policy issued pursuant to the provisions of the NSW Motor Accidents Act, to which reference will be made. I return then to the question whether the motor vehicle insurer is entitled to contribution from the industrial injury insurer on the principles of dual insurance.

21. The principal argument of Mr. Deakin relied on the principles referred to in Albion, particularly those enunciated by Kitto J. In other words, it was put that the inquiry is not in relation to any similarity between the two relevant insurance contracts as regards their general nature or purpose, or the extent of the rights and obligations they create, but whether each contract is a contract of indemnity covering the identical loss that the identical insured has sustained: Albion at 352. In this respect the decision of Davies J in QBE Insurance Limited v Government Insurance Office of New South Wales (1986) 4 ANZ Ins.cas. 60-744 is instructive. In that case the person insured was not identical in each of the insurance contracts. The employer had hired a motor vehicle from the owner of the vehicle. An employee drove the vehicle and whilst the vehicle was being so driven, another employee, the plaintiff, was injured. The employer's industrial injury insurer paid the damages to the injured employee and sought contribution from the motor accident insurer who had issued a policy under the Motor Traffic Ordinance 1936 (as it then was). There was, however, no common identity as between the insured parties, the employer on the one hand, and the owner of or any person who drove the vehicle on the other. It was held accordingly that the principles of contribution between dual insurers did not apply. Clearly his Honour accepted that the principles of dual insurance would have applied if there had been common identity of the assured.

22. In the present case the insured in each insurance contract is identical. The question is whether each contract covers an identical loss that was sustained or suffered by the insured who was, for the purposes of the industrial injury policy, the employer and who was, for the purposes of the motor accident policy, the owner of the truck. It is necessary to inquire whether the loss covered is identical.

23. In the industrial injury policy the loss in question is the loss which is suffered when the employer becomes liable to pay an amount in respect of its liability independently of the Act (that liability being a liability under the law of New South Wales) for injury to a worker. "Injury" is defined in s.4 of the NSW Workers Compensation Act to mean essentially a personal injury arising out of or in the course of a worker's employment. "Injury" is defined in s.3 of the Motor Accidents Act to include personal injury. The exclusory words in brackets In the industrial injury policy provide that the employer's liability arising independently of the Act does not include liability of the type spelled out, that is to say "liability for damages in respect of a motor accident as defined in the Motor Accidents Act". Taking up the definition in s.3 of the Motor Accidents Act, the workers' compensation policy excludes indemnity for a loss which the employer incurs in respect of its liability in respect of an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.

24. Mr. Deakin frankly acknowledged, as he had to, that if the motor accident insurer's claim for contribution is to succeed, then the exclusory words in the industrial injury policy have to be overcome. To put it simplistically, if the industrial injury policy excludes cover for any liability for injury caused by the use of a vehicle, and the motor accident policy provides cover against liability for injury caused by the use of a vehicle, how could it be said that the loss covered by each policy is identical?

25. In his primary submission Mr. Deakin sought to meet this difficulty. It was submitted that the exclusory words in the industrial injury policy, "liability for damages in respect of a motor accident as defined in the Motor Accidents Act", refer not to a liability in respect of a cause of action but the liability to pay such damages as may be assessed in accordance with the provisions of the Motor Accidents Act. It was submitted that the employer's liability independent of the NSW Workers Compensation Act for injury to the plaintiff was accordingly not "in respect of a motor accident as defined in the Motor Accidents Act", that the liability was imposed by the common law in negligence and the principle of vicarious liability whereby an employer is liable for the negligent act of the employee committed within the scope of the employment. According to the submission, as I understand it, the exclusory words, if they are to have any meaning, apply only to the liability to pay such damages as may be recovered on a cause of action arising independently of the NSW Workers Compensation Act, but fixed according to the upper and lower limits imposed by the Motor Accidents Act.

26. Mr. Deakin's submission then moved into the complex world of interstate torts and the common law principles governing the choice of law. In Australia the law governing the question of liability is the law of the State or Territory where the events constituting the tort take place: Breavington v. Godleman. Once liability is established (or assumed) the question of the assessment of the quantum of damages, being a question of procedure, is governed by the law of the State or Territory where the action is brought, or contemplated: Stevens v. Head. Hence in the action actually brought by the plaintiff against the defendant, although judgment was by consent, it must needs have been that the law governing the entitlement of the plaintiff to enter judgment and the liability of the defendant to suffer judgment was the law of New South Wales (Breavington v. Godleman) and that the law that governed the assessment of damages (and costs) was the law of the ACT (Stevens v. Head). That the law of the ACT applied to the assessment of damages would appear to be the very reason for the plaintiff bringing the action, or being advised to bring it, in the ACT. The course of bringing the action in the ACT provided for the worker a means of avoiding the limits of damages that otherwise would have been imposed by Part 6 of the Motor Accidents Act if the action had been brought in that State.

27. Mr. Deakin submitted that accordingly the quantification of damages in the present case, as represented and embodied in the sum for which the Court gave judgment (although by consent), is a matter of procedure determined by the law of the ACT, and that the liability to satisfy the judgment and pay those damages as so quantified, is not a liability under the Motor Accidents Act within the exclusory words of the industrial injury policy. Put another way, it is submitted that the plaintiff having recovered judgment and costs against the defendant according to the law of the ACT, the liability of the employer to indemnify the defendant is not a liability for damages in respect of a motor accident as defined in the Motor Accidents Act. In short it is put that independently of the NSW Workers Compensation Act the employer did not become liable for damages in respect of a motor accident within the meaning of the Motor Accident Act but became liable in respect of the injury to the plaintiff in an action for common law negligence brought in this Territory.

28. There are many difficulties involved in interpreting many of the provisions of the NSW Workers Compensation Act and the Motor Accidents Act, particularly amendments which have been made in recent years. There are also difficulties in reconciling some of the provisions of the one with some of the provisions of the other. However, it is not the function of this Court to seek to reconcile the schemes for funding the payment of damages and compensation for personal injury in New South Wales, nor to try to fit those regimes so established into the law of the ACT. Above all it is impossible to resolve all these difficulties in a single judgment at first instance.

29. In my view, the claims for contribution are to be resolved on a broad basis, having regard to the established principles mentioned in relation to dual insurance. In other words, for there to be contribution as between insurers, it must be shown that there was insurance cover of a common insured with respect to an identical loss sustained. The two insurance policies were directed to indemnifying the employer for liability to pay a person injured. In the one case, the injury contemplated by the policy was that suffered by a worker arising out of or in the course of his employment. In the other case the injury contemplated was that caused by the use or operation of a motor vehicle. Where the same insured was liable to pay damages to a person who suffered injury which could be categorised both as injury arising out of or in the course of his employment and as injury occurring by the use or operation of a motor vehicle in the same incident or occurrence, the loss was, in my view, identical.

30. Nor, in my view, does it matter that if the injured person chose to sue in New South Wales for damages he would have been restricted by the application of the Motor Accidents Act, whereas if he chose to sue as he did in the ACT the procedural law of the ACT would not so restrict the damages recoverable. In my view, the loss suffered within the contemplation of both policies was identical and on that basis there is dual insurance.

31. Alternatively, it may be said that the damages recovered in this Court were still "damages in respect of a motor accident" as defined in the Motor Accidents Act, although the procedural bar which prevented damages being recovered beyond the limits set by the Motor Accidents Act did not apply to the claim in this Court. In my view, the vicarious liability by virtue of which the employer was liable to pay damages to the injured worker and the liability to indemnify the negligent driver is each properly characterised as a liability for damages in respect of a motor accident as defined in the Motor Accidents Act and it matters not that the plaintiff chose to sue in the ACT and avail himself of the procedural law whereby he was able to avoid the restriction on damages that would have been imposed by bringing the action in New South Wales. On a proper interpretation of the policies I think that the principle of dual insurance applies and that therefore there should be contributions as between insurers.

32. As an alternative argument on behalf of the part of the motor accident insurer, it was submitted that as a result of the complex legislative history of the relevant provisions of the legislation in New South Wales, the exclusory words did not have effect at the time of the worker's injury on 11 October 1990.

33. The question of the retrospective effect of the relevant provisions of the NSW Workers Compensation Act and the regulations made thereunder has been answered by a unanimous decision of the Court of Appeal of New South Wales in Marmo Terrazzo Products Pty Limited v. FAI Workers Compensation (NSW) Ltd and Another (unreported, NSW Court of Appeal, 23 December 1994). Of course in the judicial hierarchy of the federation of Australia, this Court is not bound by decisions of Supreme Courts of States or other Territories, but great weight will normally be accorded to decisions given on appeal by Full Courts or Courts of Appeal of States or other Territories.

34. In the present case the very question is a question of the law of New South Wales. This Court, according to the principle in Breavington v. Godleman is required to apply the law of New South Wales in relation to the determination of liability on an action brought in this Court for a tort committed in New South Wales. For all practical purposes the decision of the NSW Court of Appeal in Marmo Terrazzo is binding and determinative of the question.

35. In that case, Kirby P, with whom the other members of the Court of Appeal agreed, discussed the relevant provisions of the NSW Workers Compensation Act and in particular the requirement of s.159 that the contents of a workers' compensation policy are to contain, inter alia, a provision that the insurer is liable to pay the injured worker any amount for which the employer is liable independently under that Act. His Honour concluded that certain amendments affected by Regulation 899 of 1989 had retrospective effect. His Honour further referred to the effect of the exclusory words and said that it is clear that "they exclude from the insurer's liability any obligation to indemnify the insured employer for damages pursuant to the Motor Accidents Act".

36. His Honour then turned his attention to the effects of Regulation 497 of 1991 and stated that the proper conclusion is that the policy issued, containing the exclusory words, did not extend "to provide the appellant with indemnity for any damages recovered by the worker pursuant to the Motor Accidents Act for an injury sustained on 18 October 1989". I accept entirely his Honour's decision without necessity to repeat or discuss the reasons given.

37. Mr. Deakin submitted that the decision in Marmo Terrazzo should not be taken to apply to the present case because it is not a case in which the plaintiff received damages pursuant to the Motor Accidents Act, but in accordance with the judgment of this Court which would have the law of the lex locus delicti, New South Wales.

38. There are, in my opinion, however, two answers to Mr. Little's (for the industrial injury insurer) submission. One is that it is not the recovery of damages to which the exclusory words are directed, but the liability of the employer in respect of the injury which is correlative to the right to claim damages by the worker. The other is that whether one looks at the recovery of damages or the liability to pay them, it is the common law cause of action in negligence, according to the law of New South Wales, which is at the heart of the particular risk which by the exclusory words in the policy was excluded from the wider risk against which the employer was indemnified.

39. This was not an issue which arose in Marmo Terrazzo. With respect to Kirby P, when his Honour spoke of the "obligation to indemnify the insured employer for damages pursuant to the Motor Accidents Act" and "indemnity for any damages recovered by a worker pursuant to the Motor Accidents Act" his Honour was simply using the exclusory words themselves without distinguishing between, on the one hand the quantum of damages recoverable within the limit set by the Motor Accidents Act, and, on the other hand, the cause of action which gives rise to the right to obtain judgment for such damages as may be assessed within the limits allowed by the Motor Accidents Act.

40. It follows, in my view, that the exclusory words were effectively part of the policy at the time of the happening against the risk of which the employer was to be indemnified by the industrial injury insurer. There was, in my view, an identical happening and an identical risk against which both policies provided indemnity to the same insured. Hence, the principles of double insurance apply.

41. The parties are agreed that in the event of a finding that the principles of double insurance apply, then the third party insurer should recover from the industrial injury insurer the sum of $54,632.40 made up as follows:

Paid by the motor accident insurer
Judgment in favour of plaintiff $183,724.55
Costs $ 3,500.00
Total: $197,224.55
Less paid by industrial injury insurer
Worker's compensation paid direct to
plaintiff $147,558.73
Balance: $ 49,665.82
Add
Interest $ 4,966.58
Total: $ 54,632.40

42. I should mention in conclusion in case it may be thought that the point has been overlooked, that I assume that the parties are agreed that whether the claim for contribution in this Court involves the direct application of the provisions of Part IV of the Law Reform (Miscellaneous) Provisions Act 1955 of the ACT, or whether this Court applies, less directly, by reason of the Territory common law rules of choice of law the provisions of similar New South Wales statutory law, there is ultimately no difference in the law to be applied in that respect.

43. The parties might wish to give thought to the exact orders to be made in view of these findings. If agreement can be reached, consent orders can be filed. I will give liberty to the parties to make submissions as to the form of orders, including any order for costs of the contribution proceedings. Alternatively, the parties are at liberty to bring in short minutes of orders to give effect to the above findings.