Allianz Australia Workers Compensation (NSW) Limited v Nrma Insurance Limited [2007] ACTSC 2 (29 January 2007)

Last Updated: 13 February 2007

ALLIANZ AUSTRALIA WORKERS COMPENSATION (NSW) LTD v NRMA INSURANCE LTD

[2007] ACTSC 2 (29 January 2007)

INSURANCE - double insurance - claim by workers' compensation insurer against third-party insurer for contribution - whether identity of assured - workers' compensation insurance in name of company - third-party policy in name of director and secretary of company

INSURANCE - third-party liability insurance - motor vehicles - compulsory insurance legislation - Australian Capital Territory- whether owner under policy restricted to person specified in certificate of registration - s 4(1), s 54, Motor Traffic Act 1936 - Form A, sch 2, Motor Vehicle (Third Party Insurance) Regulations

INSURANCE - double insurance - identity of risk - accident in New South Wales - motor vehicle registered and insured in ACT - relevance of NSW motor accident legislation

K C Sutton, Insurance Law in Australia (3^rd Edn, 1999), ch 12

Motor Traffic Act 1936, s 4(1), s 54, s 71, s 95

Motor Vehicle (Third Party Insurance) Regulations, r 4, sch 2

Workers Compensation Act 1987 (NSW), s 3

Motor Accidents Act 1988 (NSW)

Albion Insurance Co Ltd v Government Insurance Office of New South Wales [1969] HCA 55; (1969) 121 CLR 342

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

AMP Workers' Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35

Workcover Queensland v Suncorp Metway Insurance Ltd [2005] QCA 155

Elb v Nominal Defendant (1972) 1 NSWLR 580

Australian Iron and Steel Pty Ltd v Government Insurance Office of New South Wales [1978] 2 NSWLR] 59

No. SC 80 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 29 January 2007

IN THE SUPREME COURT OF THE )

) No. SC 80 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALLIANZ AUSTRALIA WORKERS COMPENSATION (NSW) LTD

Plaintiff

AND: NRMA INSURANCE LTD

Defendant

ORDER

Judge: Master Harper

Date: 29 January 2007

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the defendant.

1. This is a claim by a workers' compensation insurer against a motor vehicle third party insurer for contribution pursuant to the dual insurance principle.

The accident

2. On 12 September 1997 Noel Harris was injured while unloading a semi-trailer at Bungendore in New South Wales, in the course of his employment by Truform Pty Ltd. The semi-trailer consisted of a prime mover and a trailer, both owned under the general law by Truform, and both registered in the Australian Capital Territory in the name of Peter John Abbey as registered owner.

3. The present plaintiff was Truform's workers' compensation insurer pursuant to a statutory New South Wales policy. The present defendant was the authorised insurer of both the prime mover and the trailer.

4. In April 1998, the present plaintiff wrote to the present defendant a letter which can be read as a claim for contribution as a dual insurer. In May 1998 the defendant responded denying liability. A week later, the defendant wrote again, explaining that the denial of liability was based on the lack of identity between employer and registered owner, that is to say the lack of identity of insured under the policies.

5. In September 1999 Mr Harris commenced proceedings in the District Court of New South Wales against Truform Pty Ltd claiming damages for personal injury. The claim was framed as one by an employee against an employer, and the negligence alleged consisted principally of the failure to provide a safe system of work. The semi-trailer at the time of the injury was stationary, and no issue arose on the pleadings as to the use or operation of either the prime mover or the trailer, or of any defect in either of them.

6. Truform filed a defence in November 1999, inter alia pleading payments made to or on behalf of Mr Harris pursuant to the NSW Workers' Compensation Act. The proceedings were subsequently removed to the Supreme Court of New South Wales, after which an amended statement of claim was filed. I infer that the parties treated the defence filed in the District Court as the defence to the amended statement of claim.

7. In November 2001, consent judgment was entered in the Supreme Court of New South Wales without admission of liability, in the plaintiff's favour in the sume of $495,000 inclusive of costs but not inclusive of payments made already made to Mr Harris by Truform's workers' compensation insurer (the present plaintiff) of $66,993.08, or of treatment expenses similarly paid.

8. Prior to the transfer of the proceedings from the District Court to the Supreme Court of New South Wales, Truform joined the present defendant as a cross-defendant (effectively a third party) claiming indemnity under the statutory motor vehicle policy in respect of each vehicle. The cross-claim was dismissed with costs by consent, at about the time of the settlement with Mr Harris.

Evidence of Mr Abbey

9. Peter John Abbey swore an affidavit which was relied on by the plaintiff. He deposed that he had been a shareholder, director, and secretary of Truform Pty Ltd since 1987. The nature of the business had changed in 2004, but at the time of Mr Harris's injury, the company had been carrying on business as a manufacturer of metal products from a warehouse at Queanbeyan, New South Wales. The company was registered in the Australian Capital Territory, and its registered office was the office of its accountants at Manuka.

10. Mr Abbey deposed that Truform had the trailer purpose-built in September 1993 and purchased the prime mover in January 1996. He swore as follows:

When the trailer was built for Truform it was registered and insured in my name. When the truck was purchased by Truform I arranged to transfer the registration and obtain third party motor vehicle insurance from NRMA. When I attended the offices of Urban Services I did not have a copy of the company's Business Registration Certificate which they required. As it would have taken further time to obtain this evidence I registered the vehicle and trailer in my name on behalf of Truform. I paid the registration fees with Truform cheques.

11. Mr Abbey deposed that the truck and trailer were assets of Truform and were so treated in its internal records and its tax returns. Truform paid all of the expenses in relation to the vehicles from the time of their acquisition until they were disposed of in about 2003. They were used only for the purposes of Truform's business.

12. Documents obtained from the ACT Department of Urban Services show that the prime mover was manufactured in April 1980, and registered in Mr Abbey's name from 21 January 1996. Its registration expired on 6 August 2004. The trailer was registered in Mr Abbey's name from 24 September 1993 until 23 September 2002, when its registration expired. With respect to the year of Mr Harris's injury, the registration for the trailer was paid for by a cheque dated 19 September 1996, and for the prime mover by a cheque dated 6 May 1997. I take judicial notice of the fact that these cheques included an amount representing the third party insurance premium, which was, by legislation and administrative arrangement, collected by the Motor Registry and later transmitted to the defendant, NRMA Insurance Ltd, at that time the sole authorised insurer for vehicles registered in the Territory.

13. A depreciation schedule attached to Truform's 1997-98 tax return refers to the trailer as acquired on 1 July 1993 at a cost of $12,000.00 and the prime mover as acquired on 3 January 1996 for $4,000.00.

14. Mr Abbey gave oral evidence. He said that the prime mover and trailer were ordinarily kept at the company's premises at Queanbeyan. He conceded that his affidavit was to a degree misleading, in that there must have been two occasions when he attended the ACT Motor Registry to register and take out third party insurance on the two components of the semi-trailer. He said that the trailer was fabricated specifically for his company, and his recollection was that part of the contract for its supply was that the manufacturer was to arrange registration. He had no specific recollection about attending the motor registry. He said that amounts payable at the motor registry were paid by Truform cheque. He had a vague recollection that a Truform employee had attended to the registration, and registered the trailer in his name rather than that of the company. At the time the company had about five office staff and up to fifteen factory staff. He could not explain how it came about that either the trailer or the prime mover was registered in his name.

15. Whilst I have no reason to suspect that Mr Abbey was doing anything less than his best to give truthful evidence, I take account of the fact that he was trying to recollect events ten years earlier. I would be surprised and perhaps even a little suspicious if he had been able to recollect with any precision the details of the acquisition and registration of the prime mover and the trailer. I prefer to rely on the documentary evidence in preference to his partial recollection.

Applicable legislation

16. It is necessary to consider the terms of the policies of insurance which are argued on behalf of the plaintiff to cover the same risk. The workers' compensation policy is a statutory policy under the Workers Compensation Act 1987 (NSW). The terms of the policy are to be spelt out from the Act. The policy includes the proposal for insurance made by the employer to the insurer, and also the schedule of employer particulars issued by the insurer to the employer. Section 3 of the Act is in the following terms:

What the Insurer is liable for

3. The Insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance:

a) compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer . . .;

b) any other amount that the Employer becomes liable to pay independently of the Act . . . for any injury to any such person . . .;

c) costs and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceeding in which any such liability is alleged.

17. It is common ground that the settlement of the proceedings in the Supreme Court of NSW resulted in the employer becoming liable to Mr Harris for certain amounts "independently of the Act". There is an issue, to which I shall return, as to whether Truform, or the plaintiff in the present action, became liable to Mr Harris for the periodical payments of compensation amounting to $66,993.08 "under the Act" or "independently of the Act". If the former, the present defendant would argue that those payments are not covered by its policy; if the latter, the defendant concedes that they would fall into the same category as the balance of the settlement.

18. The motor vehicle third party insurance policy is also a creature of statute, for the purposes of this case, the since supplanted Motor Traffic Act 1936 and, subordinate to it, the Motor Vehicle (Third Party Insurance) Regulations.

19. At the time of Mr Harris's injury, the Act relevantly provided as follows:

Policies of insurance

54 (1) In order to comply with the requirements of this Part, a third-party policy -

a) shall be issued by an authorised insurer;

b) shall, where the policy is issued in relation to the use of a particular motor vehicle, insure the owner of the motor vehicle mentioned in the policy . . . against all liability . . . in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth;

c) . . .

d) shall be in accordance with the prescribed form.

(2) A third-party policy shall not extend to insure the owner or driver of the motor vehicle against -

a) any liability to pay compensation under the Workers' Compensation Act 1951 to a worker employed by him or her; or

b) any liability which may be incurred by him or her under an agreement unless the liability is one which would have arisen in the absence of that agreement.

20. By virtue of regulation 4, a third party policy was to be in the form of Form A in sch 2 to the regulations. The policy relevantly provides that:

. . .the insurer shall insure the owner and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them separately, against all liability (except a liability referred to in subsection (2) of section 54 of the Act) incurred by the owner and that person jointly, or by either of them severally, in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth of Australia: provided that, where liability is incurred in a part of the Commonwealth other than the Australian Capital Territory, this policy shall indemnify the owner and that other person, as the case may be, only to the extent (if any) to which he or she is not insured against the liability pursuant to a law in force in that part of the Commonwealth requiring the insurance to be effective.

The defendant does not place reliance on the proviso. It is hence unnecessary for me to consider whether or not the proviso might have afforded a defence to the plaintiff's claim.

21. There was some difference between the parties as to the construction and application of s 71 of the Act, the relevant portion of which I set out:

Change of ownership of motor vehicle

71 (1) Every third-party policy in relation to a motor vehicle shall enure in favour of the owner for the time being and the driver, notwithstanding any change in the ownership of the motor vehicle, but shall cease to have effect when another third-party policy in relation to that motor vehicle comes into force except in relation to any liability, whether under the policy or under this Act, accrued or incurred before that other third-party policy came into force.

(2) As soon as practicable after the owner of an insured motor vehicle sells or ceases to have possession of the motor vehicle -

a) he or she shall give notice of that fact to the authorised insurer who issued the third-party policy; and

b) the person who has purchased or acquired possession of the insured motor vehicle shall give notice of that fact to the authorised insurer;

c) . . .

22. On the registration issue, s 95 is said to be relevant, and I set it out also:

Registration by joint owners and companies

95 Registration of a motor vehicle or trailer on behalf of a co-partnership or company may be applied for by, or granted to, any partner of the co-partnership, or the secretary or manager of the company, as the case may be.

23. The plaintiff argues that the registration of the prime mover and the trailer in Mr Abbey's name rather than in the name of Truform should be seen as having occurred pursuant to s 95, Mr Abbey having been the secretary of Truform at all relevant times.

24. Many words and phrases are defined in subs 4(1) of the Act, including, relevantly:

"owner" in relation to a motor vehicle means -

a) in the case of a motor vehicle that is registered under this Act - the person whose name is specified in the certificate of registration as the owner of the motor vehicle

. . .

f) in the case of an unregistered motor vehicle - a person who, solely or jointly with any other person, is entitled to immediate possession of it;

g)

"registered" means registered under this Act;

"former owner", in relation to a motor vehicle which is sold or disposed of, means the owner who sold or disposed of the vehicle;

"new owner", in relation to a motor vehicle which is sold or disposed of, means the person to whom the vehicle is sold or disposed of;

25. Section 22 of the Act contains detailed provisions as to the obligations of a former owner and a new owner on sale or disposal of a registered motor vehicle. There has been no relevant change of ownership of the prime mover or the trailer in the present case. The provisions of s 71 and the definitions of "former owner" and "new owner" are set out because counsel for the plaintiff submits that they are relevant to the construction of the word "owner" in s 54 and in the third-party policy.

The competing submissions

26. The principles governing dual or double insurance are not in contention. They are summarised by Professor K C Sutton in Insurance Law in Australia (3^rd Edn, 1999), Chapter 12. Dual insurance occurs when two or more insurers cover the same interest against the same risk, although the liability need not arise from the same type of policy. It is essential that each policy must indemnify the same assured in respect of the same loss. The leading Australian case on dual insurance is Albion Insurance Co Ltd v Government Insurance Office of New South Wales [1969] HCA 55; (1969) 121 CLR 342, where the principles are set out in the joint judgment of Barwick CJ, McTiernan and Menzies JJ at 345-346 and by Kitto J at 352.

27. It is submitted on behalf of the defendant that the principles of dual insurance are not applicable in the circumstances of the present case, for two reasons. Firstly, it is said, the insured under the workers' compensation policy is not identical with the insured under the third-party policies. The insured under the workers' compensation policy is Truform; the insured under the third-party policies is Mr Abbey. Mr Abbey is not, and could not have been, personally liable to Mr Harris for damages.

28. Secondly, the defendant submits that there is not an identity of risk under the policies. The defendant argues that because the injury to the plaintiff was occasioned in New South Wales, the claim by Mr Harris, in so far as it involves injuries caused by or arising out of the use of a motor vehicle, must be viewed by reference to the legislative regime applying to personal injury claims arising out of motor accidents in New South Wales at the time. The applicable legislation was the Motor Accidents Act 1988 (NSW), and Mr Harris could not have made a claim recognised by that Act because his injuries did not arise out of the driving or operation of a motor vehicle or out of a defect in a motor vehicle.

29. I shall deal with the second argument immediately. It seems to me that it is misconceived. The NSW Motor Accidents Act is of no relevance to the issue I am required to determine. Counsel for the defendant sought to persuade me that the decision of the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 compelled such a conclusion. But that was an unloading case where the injury had taken place in New South Wales and both policies under consideration were NSW statutory policies. On the facts of that case the third-party policy did not respond to the claim and the workers' compensation insurer was wholly responsible for it.

30. Counsel for the defendant argued that for the third party insurer to have any liability, the action by Mr Harris would have to have been framed so as to allege negligence related in some way to the motor vehicle, and that the pleadings in Mr Harris's action had been framed against Truform purely as an unsafe system of work claim. I am of the view that the submission must be rejected. The typical dual insurance case, through many reported decisions, has been a loading or unloading case where the motor vehicle was stationary. I am satisfied that the manner in which the claim by the injured person against the employer and vehicle owner is framed is quite immaterial to the issue of whether or not dual insurance applies. I am fortified in this conclusion by the decision of the NSW Court of Appeal in AMP Workers' Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35. In that matter, the injured employee had sued only the driver of a motor vehicle owned by his employer. He had been injured by the negligent driving of the vehicle. The workers' compensation insurer submitted that it was not liable to contribute because it did not insure the driver, and there had been no finding of liability against its insured, the employer and owner. Handley JA, in a judgment in which Mason P and Beazley JA concurred, held that the third-party insurer was entitled to contribution from the workers' compensation insurer: the two policies had covered the same risk, and the equitable entitlement of the third-party insurer to contribution could not be defeated by an act over which it had had no control, namely the decision of the injured person to sue only the driver, and not the owner which would have had no answer to a claim based on its vicarious liability. Accordingly it seems to me that there is no merit in the defendant's submission that the way in which the original claim by the injured person is framed (whether as a claim by an employee against an employer or as a claim against the owner or driver of a motor vehicle) can be determinative of whether or not dual insurance applies.

31. The other issue, as to whether there is identity between the insured under the workers' compensation policy and the insured under the third-party policies, raises greater difficulties. In AMP v QBE, there was no question that the employer and the owner were identical: the problem arose only because the employer-owner was not the named defendant in the original action for damages.

32. There is less of a problem when there is some overlap between the identity of the employer and the identity of the owner. For example, in Workcover Queensland v Suncorp Metway Insurance Ltd [2005] QCA 155, a husband and wife, in partnership, were the employers of the plaintiff. The vehicle out of which his injuries had arisen was registered in the name of the husband only. Jerrard JA and Douglas J found that nevertheless, the two insurers were liable to contribute equally to the claim (McMurdo P in dissent would have altered the proportions but agreed that the principle of dual insurance was applicable).

33. In the present case, on the face of it there is no identity. The insured under the workers' compensation policy is Truform; the insured under the third-party policy is Mr Abbey. Senior Counsel for the plaintiff sought to persuade me that I should find that Truform was the owner of the prime mover and the trailer for the purposes of the policy. I am satisfied that Truform was the owner under the general law and was entitled to immediate possession of both portions of the semi-trailer, so that if they had been unregistered, Truform would have been the owner within the definition in s 4 of the Motor Traffic Act. However, the definition, in respect of a registered motor vehicle, is in unambiguous terms. "Owner" means the person whose name is specified in the certificate of registration as the owner of the motor vehicle. Mr Abbey's name was at all material times the name specified as owner in the certificate of registration of both the prime mover and the trailer.

34. Except where the word "owner" appears in the Act as part of the expressions "former owner" and "new owner", which are separately defined, it seems to me that I have no alternative but to read the provisions of the Act so that the word "owner" means what it is defined to mean: see Elb v Nominal Defendant (1972) 1 NSWLR 580 per Jacobs JA at p. 585. This means that in section 54, and also in the form of policy in the schedule to the regulations, I must find that the third-party policy insured only the owner against liability in respect of the bodily injury to Mr Harris caused by or arising out of the use of the motor vehicle. The policy did not, in its terms, insure Truform against any such liability.

35. There is nothing in s 71 of the Motor Traffic Act which causes me to doubt that interpretation. Section 71 applies where there is a change of ownership, not the case here, and the section is necessary to make it clear that where there is a change of registered owner during the term of a third-party policy, the policy covers the new owner notwithstanding that he or she was not named in it. This is no longer of much practical relevance, as the legislation had been amended by the time of Mr Harris's injury so as not to require the physical issue of a third-party policy, but it would have been of some significance in earlier times (the legislative scheme has been in effect in the ACT since 1947) when there were a number of authorised insurers in the market, and policies were physically issued annually in the name of the registered owner. There is nothing in the section to warrant giving the word "owner" a meaning in it different to the defined meaning.

36. This construction would seem to me to accord with the purpose of the third-party insurance provisions of the Motor Traffic Act, in that they enable an injured person readily to ascertain the name and address of a potential defendant who, regardless of who might have been driving the motor vehicle at the time of an accident, even a thief, will be vicariously liable for the driver's negligence (see s 66, presumption of agency).

37. This brings me to the purpose and effect of s 95. It is not entirely clear whether s 95 is intended to have the effect that the secretary or manager of the company concerned becomes the person whose name is specified in the certificate of registration as the owner of the motor vehicle, or whether its intention is that the company will be registered as owner. The section may be intended simply to facilitate registration and to overcome, for example, the necessity for an application by a company for registration to be executed under common seal in accordance with a resolution of its directors. I have not been referred by counsel to any authorities which would assist in the construction of the section. As a question of fact, I am satisfied that both the prime mover and the trailer were at all times assets of the company, and that their registration fees and third-part insurance premiums were paid by the company. I am satisfied that they were registered in Mr Abbey's name purely as a matter of administrative convenience. I am not able to find that the Registrar of Motor Vehicles had any knowledge that the registration was being applied for by Mr Abbey in a representative capacity. I suspect that this would not have been known to the Registrar, and I am satisfied that it would have been entirely unknown to the defendant.

38. There was some discussion during submissions by counsel as to whether Mr Abbey may have been a trustee for the company of the prime mover and the trailer. It is sufficient to say that what is in question here is the scope of the third-party policies in relation to the two components of the semi-trailer. It does not seem to me that a third-party insurance policy under the Motor Traffic Act is capable of being trust property.

39. It is strongly arguable that Truform had, at the date of Mr Harris's injury (which is the critical date: AMP v QBE per Handley JA at para 17) no entitlement to indemnity under the third-party policy. To test this proposition, let it be assumed for a moment that the workers' compensation insurer had failed, and that Mr Harris had pursued his action against Truform to judgment. He could then have applied under s 61 of the Motor Traffic Act for the entry of judgment for the amount he had recovered against Truform against the authorised insurer. It would have been open to the insurer to defend the application on the ground that the third-party policies did not insure Truform against its liability. The insurer would have been able to argue that the policies obliged it to indemnify (there being no relevant driver) only the owner of the insured motor vehicles, that is the person whose name was specified in the certificates of registration as the owner. The certificates specified Mr Abbey's name. I cannot see that s 95 would have been enough to get Mr Harris over this hurdle. Thus, it seems to me, an application by Mr Harris under s 61 for a direction that judgment be entered against the authorised insurer would have failed.

40. If I am correct in this, then it seems to me that arguments about general fairness in the application of equitable principles cannot avail the present plaintiff. One must have considerable sympathy with the plaintiff, which fails notwithstanding that the motor vehicles out of the use of which Mr Harris's injuries arose were registered and covered by third-party insurance, particularly where the reason for the failure is that Mr Abbey registered both components of the semi-trailer in his own name rather than in the name of the company for reasons of convenience. Nevertheless it seems to me that where the defendant in the proceedings brought by Mr Harris was not identical with the insured under the third-party policies, and where the registered owner would not if sued have been liable, the claim for contribution must fail.

The amount of the claim

41. There is an issue as to whether a contribution claim, had it succeeded, would have extended to the periodical payments of workers' compensation paid by the plaintiff to Mr Harris prior to judgment in his action. Payment had been pleaded as a partial defence to his claim. Judgment was entered for an amount net of rather than inclusive of these payments.

42. The NSW Court of Appeal was confronted by a relevantly identical set of circumstances in Australian Iron and Steel Pty Ltd v Government Insurance Office of New South Wales [1978] 2 NSWLR] 59. In the principal judgment, Glass JA said at 63-64:

I consider that the proper analysis is that the payments had a dual character. They were, it is true, referable to an independent head of liability. But they were also stamped with another character, viz. that they were payments on account of damages for which credit would have to be given if damages were later recovered . . . The compensation and damages due to him . . . appear as two interrelated sums and not as two sums independently calculable by reference to separate considerations. Where the damages are later recovered, compensation previously received can be proved in reduction of liability under a statutory plea of payment. . . The sums which were paid by way of compensation . . . were not recoverable under the third-party indemnity. If the worker had failed to recover damages, the payments would have been made . . . in discharge of a liability to pay compensation in respect of which the employer was a self-insurer.

His Honour held that the workers' compensation payments became on judgment part of the damages payable by the employer.

43. In the absence of any other authority, it seems to me that I should follow that decision. I would accordingly have included the previously paid periodical workers' compensation amounts in the sum in respect of which contribution would have been payable.

Outcome

44. There will be judgment for the defendant. In the normal course costs would follow the event. I shall hear the parties in case there are any circumstances unknown to me which might justify some different order

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 January 2007

Counsel for the plaintiff: Mr R W Seton SC

Solicitors for the plaintiff: Hicksons by their agents Sneddon Hall and Gallop

Counsel for the defendant: Mr M A McDonogh

Solicitors for the defendant: Moray and Agnew

Date of hearing: 14, 15 August 2006

Date of judgment: 29 January 2007