Genders v Government Insurance Office of NSW [1959] HCA 30; (1959) 102 CLR 363 (1 July 1959)

HIGH COURT OF AUSTRALIA

GENDERS v. GOVERNMENT INSURANCE OFFICE OF N.S.W. [1959] HCA 30; (1959) 102 CLR 363

Insurance

High Court of Australia
Dixon C.J.(1), McTiernan(1), Taylor(1), Menzies(2) and Windeyer(1) JJ.

CATCHWORDS

Insurance - Third party - Contribution between tortfeasors - Cause of action - Survival - Compensation to relatives - Collision between motor car and motor cycle - Death of cycle rider and pillion passenger - Cycle rider dying first - Action by wife of pillion passenger against driver of car - Judgment recovered - Subsequent action for contribution by driver of car against legal personal representative of deceased cycle rider and his authorized insurer - Whether driver of car entitled to recover against authorized insurer - Liability of authorized insurer to indemnify estate of cycle rider - Motor Vehicles (Third Party Insurance) Act 1942 (N.S.W.), ss. 10 (1) (b) (i), 15 (2) (a) - Law Reform (Miscellaneous Provisions) Act 1944 (N.S.W.), Pt. II, s. 2 (1) (4) - Law Reform (Miscellaneous Provisions) Act 1946 (N.S.W.), Pt. III, s. 5 (1) (c) - Motor Traffic (Amendment) Act 1951 (N.S.W.), s. 6.

HEARING

Sydney, 1959, April 15-17, 20;
Melbourne, 1959, July 1. 1:7:1959
APPEAL from the Supreme Court of New South Wales.

DECISION

July 1.
The following written judgments were delivered:-
DIXON C.J., McTIERNAN, TAYLOR and WINDEYER JJ. The question which we are declaration in an action brought in the Supreme Court of New South Wales, but it can be best explained by a simple statement of the facts as they appear from the pleading, made perhaps in one or two respects more specific by statements from the bar. It appears that sometime in the year 1948 a collision took place between a motor cycle on which two men were riding and a motor car or truck. The two men on the motor cycle were killed. They both died on the same day but the pillion rider whose name was Dowd survived the other rider whose name was Baxter by some interval of time. The other motor vehicle was driven by a servant of one Genders, a garage proprietor. Dowd left a widow who sued Genders under the Compensation to Relatives Act 1897- 1946 for damages for the loss of her husband and also under Pt. III of the Law Reform (Miscellaneous Provisions) Act 1944 for damages for nervous shock occasioned to herself by his death in the circumstances of the accident. The basis of each cause of action was, of course, the negligence of Genders' servant. (at p373)

2. Baxter's estate had devolved upon the Public Trustee as administrator and his liability for third party risks arising from the use of his motor cycle had been insured with the Government Insurance Office of New South Wales. But Mrs. Dowd did not allege that any negligence of Baxter had caused her husband's death and she made no claim against Baxter's estate or against his insurer. Genders, however, took a different view of the matter. He maintains that Baxter was guilty of negligence and that his negligence was a contributing cause of Dowd's death. Having suffered judgment in the proceedings brought against him by Mrs. Dowd both in respect of damages for the loss of her husband and in respect of damages for nervous shock, Genders now turns to the possibility of obtaining contribution from the estate of Baxter or from his insurer. His claim for contribution is of course founded upon the Law Reform (Miscellaneous Provisions) Act 1946. But his claim to recover it from the estate of Baxter and the claim in the alternative to recover it from Baxter's insurer, the Government Insurance Office, are based upon different provisions. To recover it from the estate, that is to say from the Public Trustee as the administrator of Baxter's estate, Genders resorts simply to s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944. Sub-section (1) of that section provides, amongst other things, that on the death of any person (in this case Baxter) all causes of action subsisting against him shall survive against his estate. As Baxter died before Dowd and as Mrs. Dowd's right of action arose on her husband's death it was perhaps necessary for the purpose of making out the liability of his estate to Mrs. Dowd under the Compensation to Relatives Act to rely also on sub-s. (4) of s. 2: see Partridge v. Chick (1951) 84 CLR 611 . For according to the decision of the Supreme Court in Kebby v. Waldron (1943) 43 SR (NSW) 342; 60 WN 218 s. 6c (1) of the Compensation to Relatives Act 1897-1928 does not operate to give a cause of action to the widow or relatives of a deceased man against the estate of a man by whose negligence or other wrongful act he died if that man, whom we will call the wrongdoer, did not survive him but died first before the cause of action in the widow or relatives was complete. For present purposes we shall assume the correctness of this interpretation of s. 6c (1) which at all events has the support of the exact words of the provision. Sub-section (4) of s. 2 in effect says that if damage is suffered after the death of a person guilty of an act or omission causing the damage and he would have been liable for the act or omission had he not died before or at the same time as the damage was suffered, then for the purpose of the provisions a cause of action shall be deemed to have subsisted against him before his death. It will be noticed that if the liability of Baxter's estate to contribute is ascribed to the devolution of a liability on his part which must have accrued or must be statutorily deemed to have accrued before his death, nothing but recourse to sub-s. (4) could bring that result about and there must be a question whether it can do so. If, however, the liability to contribute is treated as arising from the existence, so to speak, in Baxter's estate of a liability to Mrs. Dowd co-extensive with the liability of Genders upon which she has recovered and to the direct operation upon the liability in Baxter's estate of s. 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the question will depend entirely on the meaning and effect of the latter provision, and sub-s. (4) of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944 may be neglected except as providing the step whereby a liability of Baxter's estate to Mrs. Dowd arose. (at p374)

3. In the action from which this appeal arose Genders joined the Public Trustee as administrator of Baxter's estate, claiming contribution from him as administrator, and upon demurrer the Supreme Court has held that upon the facts assumed the estate is liable to contribute. No appeal has been brought by the Public Trustee from that part of the decision. It seems likely that Baxter's insurer did not perceive the possibility of the insurance extending to the liability. As has been said already, Genders' direct claim against that insurer for contribution, that is to say against the Government Insurance Office of New South Wales, is founded upon quite another provision. The provision is s. 15 (2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942. That sub-section forms part of a provision directed to the purpose of safeguarding a person entitled to recover in respect of death or bodily injury arising from the use of an insured motor vehicle. In its absence it might have been possible for him to lose the advantage of the insurance moneys, the very moneys intended to cover the insured's liability to him. That might have happened owing to the insured's failing to apply them to satisfy the judgment against him obtained by the injured party. It might have happened owing to his inability to recover from the insured because of the latter's death or disappearance. The first of these possibilities is met by sub-s. (1) of s. 15 which enables a party who has recovered judgment for damages from an insured person in the case of death or bodily injury from the use of an insured motor vehicle, if the judgment is not satisfied within a given time, to take measures to have the judgment entered against the insurer. The second possibility is dealt with by sub-s. (2)(a). It is not necessary to set out the whole of that provision. It will suffice, and indeed it will lead to clearness, if the more material words are extracted. These provide that where, in respect of the death of, or bodily injury to, any other person caused by, or arising out of, the use of a motor vehicle, liability has been incurred by any person . . . who is insured against such liability under a third party policy . . . and where the insured person is dead or cannot be served with process, any person who could have obtained judgment in respect of such death or bodily injury against the insured person if he were living or if he could have been served with process, as the case may be, may recover . . . against the authorized insurer who issued the third party policy . . . an amount equivalent to the sum for which he could have obtained a judgment against the insured person. A count in the declaration was based on this provision but on demurrer the Supreme Court held that the provision would not support a claim made directly against the insurer on the basis that the insured, had he not died, would have been or become liable to make contribution to the damages which the party claiming had been adjudged to pay in respect of the death of another party caused by or arising out of the use of the motor car for which the third party policy had been issued. Owen J. so decided on the ground that the liability of Baxter to make contribution was not a liability "in respect of the death of Dowd". Hardie J. did not dissent from this ground but reserved his opinion upon it. He was of opinion that the count failed for another reason. His Honour pointed out that the liability to make contribution to Genders was inchoate only till judgment was recovered against Genders by Mrs. Dowd and that therefore it was not a liability which Baxter had incurred before his death within the meaning of s. 15 (2)(a). Sub-section (4) of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944 could be of no assistance in deeming the liability to have been subsisting against Baxter before his death; for the "deeming" required by that sub-section is not for the purpose of the law in general but only for the purposes of Pt. II of the Law Reform (Miscellaneous Provisions) Act 1944. Herron J. dissented and held that the count in Genders' declaration based on s. 15 (2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942 was good. By a majority, judgment in demurrer upon this count was given for the defendant. The plaintiff now appeals from that judgment by special leave. It is perhaps necessary to say that in joining the two defendants and pleading the two counts the plaintiff treated the claims as alternatives and proceeded under Pt. II of the Law Reform (Miscellaneous Provisions) Act 1946. This was a mistake as is now acknowledged but in spite of the irregularity of pursuing the action against the defendant the Government Insurance Office for an independent liability as cumulative, no objection is taken. (at p376)

4. A study of the case has left no doubt that the conclusion of the majority of the Supreme Court was right as to the invalidity of the count against the Government Insurance Office contained in Genders' declaration. But although one may agree that there are verbal considerations which make it impossible for Genders as plaintiff to maintain a cause of action directly against the insurer under s. 15 (2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942, it is clear that the facts of this case raise a wider question concerning the scope and effect of an insurance under s. 10 (1) of that Act once the law was changed so that the civil liability of a wrongdoer survived his death and it became possible for one wrongdoer to obtain contribution from another liable for the same wrong. In the view we take of that wider question the count cannot be sustained. It seems undesirable in the circumstances that our decision should be placed merely on the verbal considerations to which we refer: for when the combined operation of the material parts of the three statutes, that is to say, of Div. 1 of Pt. II of the Motor Vehicles (Third Party Insurance) Act 1942, of Pt. II of the Law Reform (Miscellaneous Provisions) Act 1944 and of Pt. III of the Law Reform (Miscellaneous Provisions) Act 1946, are considered together it will be seen that these verbal difficulties are not fortuitous but are the concomitants of the developments of the law to which the statutory provisions were directed. (at p376)

5. It is necessary to begin with s. 10 of the Motor Vehicles (Third Party Insurance) Act 1942. When that section was enacted the civil liability incurred, whether directly or vicariously, by reason of the negligent driving or use of a motor vehicle occasioning the death of another or his bodily injury did not survive against the estate of the person liable, in case of the death of the latter, that is, apart from s. 6c of the Compensation to Relatives Act. Moreover, there was no right of contribution between wrongdoers to the damages one might be obliged to pay: Merryweather v. Nixan (1799) 8 TR 186 (101 ER 1337) ; cf. Adamson v. Jarvis [1827] EngR 277; (1827) 4 Bing 66 (130 ER 693) . Moreover, if the party wronged recovered judgment for damages for the wrong against one joint wrongdoer without joining the other or others, the liability of the latter was discharged: Duck v. Mayeu (1892) 2 QB 511 ; Brinsmead v. Harrison (1871) LR 7 CP 547 . The effect of s. 10(1)(b)(i) is to require that the policy of insurance which the owner of a motor vehicle must obtain from an authorized insurer shall insure the owner of the motor vehicle and any other person who at any time drives the motor vehicle . . . against all liability incurred by that 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. It will be noticed that the insurance is against all liability incurred in the manner described by the provision. "All" is comprehensively complete. Any liability must be covered if it falls within the description. At the time this was enacted the nature of the liability covered by the description was such that unless satisfied or enforced before the death of the party liable there was a cesser of liability upon his death. But it seems to be clear that this quality related only to the duration of the liability. When that quality was removed, as it was by Pt. II of the Law Reform (Miscellaneous Provisions) Act 1944, the liability none the less fell within the description of liability insured against. It remained, to repeat the material words of s. 10(1)(b)(i), a "liability incurred by that owner . . . 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 other words, the insurance required by s. 10(1)(b)(i) indemnifies the insured and his executors and administrators against the liability in respect of death or bodily injury to a person caused by or arising from the use of the insured vehicle. (at p377)

6. Further, it will be seen that the liability insured against includes joint liability and several liability. It is obvious that in a case of joint liability the insurer at the time the provision was enacted might be called upon to pay the whole liability or might escape altogether. For the choice of the plaintiff might be to sue the insured covered by the insurer's policy or to sue a joint wrongdoer who might be covered by a policy of another insurer. The choice would always exist in the case of joint liability and where the persons jointly liable were liable in respect of the use of different motor vehicles the exercise of the choice would, if the vehicles were insured with different authorized insurers, determine which of the two insurers bore the whole liability. Of course the injured party might choose to sue both and from that choice other possibilities would arise which it is not necessary to pursue. But, however the incidence of the burden of satisfying the loss or damage might be worked out, it was the same loss or damage, the same burden, and the law left it more or less to chance which of those involved in the liability bore it, if there were more than one. What Pt. III of the Law Reform (Miscellaneous Provisions) Act 1946 stepped in to do was to regulate the incidence of the burdens involved in discharging such a liability. Paragraphs (a) and (b) of s. 5(1) are concerned with the removal of the rule under which the recovery of judgment against one of several joint wrongdoers worked the discharge of the liability of every other of the joint wrongdoers. But par. (c) conferred upon a wrongdoer called upon to pay the damages flowing from the wrong a right to contribution from another wrongdoer or other wrongdoers liable for the same damage. Sub-section (2) provided that in proceedings for contribution under the provisions the amount of contribution recoverable from any person should be such as might be found by the court to be just and equitable, having regard to that person's responsibility for the damage. Now it will be seen that under the law as it is reformed by this provision one of two or more wrongdoers liable for the same damage, that is, liable to pay compensation for the same death or bodily injury, may be called upon directly to bear his proportion or indirectly by proceedings for contribution. The words "called upon directly to bear his proportion" in the foregoing sentence may not seem apt because the supposition is that the plaintiff seeks to be paid in full, but they are used advisedly. They cover two possible situations. One is where the plaintiff sues both wrongdoers jointly if there be two or all of them jointly if there be more: in that case he recovers the full amount against them jointly but in the same proceedings the apportionment of the burden of discharging the judgment is fixed and as a result each is called upon to pay his due proportion. The second possible situation is that the plaintiff sues one wrongdoer only and he is made liable by judgment for the full amount in the first instance. He however may then claim contribution and when the contribution is made he remains under the burden only of his due proportion. If, however, he is not sued at all he may yet be called upon to bear his due proportion. For another of the wrongdoers liable for the damage may be sued to judgment and that wrongdoer may recover contribution in the amount of his due proportion from his fellow wrongdoer. It seems clear enough that all this is a procedural method of working out a substantive rule or principle imposing on one of several wrongdoers who are liable for the same damage for bodily injury or death an ultimate responsibility for a due proportion so that he bears no more. It is this ultimate responsibility which his insurer must bear in order to indemnify him. If he is called upon to pay the full amount in the first instance, his insurer will of course meet it, but the insurer will be subrogated to his right of contribution and will be left ultimately only bearing his due proportion. If there is judgment against him with other wrongdoers for the full amount with an apportionment of the burden amongst them, his insurer must meet the apportioned amount at once. The insurance required by s. 10(1)(b)(i) is expressed in terms which, as consideration will show, suffice to cover this liability whether it be incurred directly to the person who has suffered damage in respect of death or bodily injury or indirectly through a claim for contribution. The policy of insurance which is necessary to fulfil the requirements of s. 10(1)(b)(i) is prescribed by reg. 5(1) and schedule B. of the Motor Vehicles (Third Party Insurance) Regulations and the form may be found in New South Wales Rules and Regulations etc. 1942, p. 400. The form embodies the language of the sub-section omitting, however, the words referring to joint and several liability. But the omission cannot restrict the scope of the cover and it may be convenient to give the terms in which the actual insurance is expressed. The insurer thereby agrees "that . . . the insurer shall insure the owner and any other person who may drive the motor vehicle against all liability . . . incurred by the owner and or the driver in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle." Now it may be true enough that this language was adopted before the liability survived against the estate of the insured and before the burden might be imposed indirectly by a claim for contribution as well as directly. But it is all a liability to pay compensation for the same loss and damage and that loss and damage is in respect of the death of or bodily injury to a person caused by or arising out of the use of the insured motor vehicle. To argue that in the case of a claim for contribution it is not a liability in respect of such death or bodily injury but in respect of the judgment or other ascertainment of the claimant's liability is to overlook the fact that the obligation to contribute is the consequence of the liability in respect of the death or bodily injury which the insured who is called upon to contribute incurred and that contribution is only a method of realising that liability or, in other words, of enforcing it to the extent of the due proportion to be borne. The indemnity given by the insurance policy is an indemnity against liability for wrong and extends in terms to the whole liability in respect of the death or bodily injury and therefore should be understood as covering every part of it, however that liability may be enforced, that is to say, whether directly or indirectly. From this it follows that if Baxter had been found liable to make contribution to the liability imposed on Genders, his insurer would have been liable under the policy giving effect to s. 10(1)(b)(i) of the Motor Vehicles (Third Party Insurance) Act 1942 to indemnify Baxter. It follows too that if Baxter's estate, that is the Public Trustee as the administrator of his estate, is liable so to contribute, Baxter's insurer, that is the Government Insurance Office of New South Wales, is liable under the policy to indemnify the estate. The Supreme Court, as has been said already, adopted the view that Baxter's estate was so liable and has given judgment for the plaintiff Genders on the demurrer to the count against the Public Trustee as administrator of Baxter's estate based upon that view. Apparently it was not understood that, according to the reasoning which is set out above, this meant that the Government Insurance Office was liable under its policy to make good the liability so imposed on the Public Trustee. For if it had been understood one might have expected an appeal by the Government Insurance Office from the judgment on that count as well as or perhaps instead of the appeal by Genders from the judgment on the count in which he claims directly against that company. In the circumstances it seems better at this stage to say how the conclusion may be reached that the estate of Baxter is liable to make contribution to Genders: for there are some difficulties in reaching that conclusion. The difficulties arise on the terms of s. 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 which it will now be necessary to set out. But before setting out the provision it may be desirable to say that the reason why it is s. 5(1)(c) that must be considered is that an inspection of s. 2(4) of the Law Reform (Miscellaneous Provisions) Act 1944 is almost enough to show that that sub-section will not suffice to carry into Baxter's estate the liability of Baxter, inchoate only as it was at his death, to contribute to the damages payable by Genders. At Baxter's death Genders' liability had not of course been established and its amount had not been ascertained. Until it was ascertained no right to contribution from Baxter could arise. There can be no doubt that the possibility of such a right arising in Genders or, if you like, the inchoate right of Genders cannot fall within the words of s. 2(4) "where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against" Baxter had he not died "before or at the same time as the damage was suffered". It is difficult enough to say that the passing of judgment against Genders for a liability he had incurred by his negligence amounted to damage which he suffered, but if that difficulty can be surmounted he certainly did not suffer it by reason of any act or omission of Baxter or any act or omission in respect of which an action would have lain against Baxter if he had lived. The liability of Baxter's estate to contribute must therefore arise from s. 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 or not at all. The material part of s. 5(1)(c) is expressed in the following words: "Where damage is suffered by any person as a result of a tort (whether a crime or not) - any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise." In the present case Mrs. Dowd suffered damage within the meaning of this provision as a result of a tort for which Genders was responsible. Genders' responsibility made him a tortfeasor and he was liable in that character in respect of the damage. But the only recovery of contribution that is authorized by the provision is "from any other tort-feasor" and it must be one "who is, or would if sued have been liable, in respect of the same damage". Sub-sections (1) and (4) of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944 operate to make Baxter's estate liable for the same damage and make it liable for that damage as for a tort. Baxter himself was not liable at his death to Mrs. Dowd - his liability to her was incomplete. On the hypothesis, accepted for present purposes, that he was negligent, he was another tortfeasor, but he could never have been sued for the same damage, that is the damage to Mrs. Dowd; for he died before it accrued. But his death meant only that his estate, that is the administrator of his estate, the Public Trustee, became liable when the damage did accrue. Is an interpretation justified which treats the words "any other tort-feasor" as extending to the liability of the executor and administrator of the dead tortfeasor devolving as a result of the combined operation of s. 2(1) and (4) of the Act of 1944? To interpret it otherwise is to deny a right to contribution at a point where, according to the principle the legislation was designed to express, contribution should be provided. The word "tort-feasor" is used to describe the character of the legal liability: not to connote the moral culpability of the party. It comprises for example a person vicariously responsible for the acts of servants of which he knew nothing. It is used, in other words, to confine the operation of the provisions to cases where a tort has been committed on the side of the person making contribution as well as on the side of the person seeking it and the same damage flows therefrom. In the phrase "whether as a joint tort-feasor or otherwise" the emphasis is on "joint". The words "or otherwise" cover separate and distinct pieces of negligent conduct which cannot be considered joint although as a matter of causation they contribute to the same damage. These words can therefore be put on one side. The fact is that the liability of the administrator of the estate of Baxter for the damage is delictual: it is the same liability as that which, but for the effect at common law of death, would have been transmitted and it falls entirely within the true intent of the legislature to express which par. (c) was framed. In these circumstances to construe the words "any other tort-feasor" so narrowly as to exclude the liability of the executor and administrator of a tort-feasor would be to mistake the sense of the enactment. It would be to disregard the warning qui haeret in littera haeret in cortice. It is preferable to understand s. 5(1)(c) of the Act of 1946 as authorizing the recovery of contribution from the executor or administrator of a wrongdoer where the liability was completed by damage accruing after his death. (at p382)

7. The foregoing examination of the matter means that the Public Trustee as administrator of Baxter's estate became liable to make contribution to Genders and that the Government Insurance Office as the insurer of Baxter is, according to the form of the policy, bound to indemnify the estate against the liability. The question may arise whether sub-s. (1) of s. 15 extends to this part of the indemnity. There are difficulties in so construing it arising from the forms of expression which of course were adopted before a right to contribution existed. But the sense of the provision is that the judgment may be entered against an insurer of the liability in respect of which the judgment was given, provided of course it is within the cover and the liability of the judgment is not otherwise discharged. This, however, is not the occasion to decide such a conflict between the principle the provision is designed to effect and the text adopted to express it at a time when the substantive law supplying the cases falling under the principle was more limited. It is under sub-s. (2) (a) of s. 15 that the actual claim of Genders for direct relief against the Government Insurance Office is made. Putting aside the case of a person who cannot be served, the purpose of the provision is to fix upon an insurer a direct liability where the death of the insured makes recovery from him impossible. The operation of the paragraph is of course limited. It relates to liability in respect of death or bodily injury caused by or arising from the use of a motor vehicle. But the hypothesis upon which a right of direct recourse to the insurer is based is expressed in the words "where the insured is dead . . . any person who could have obtained judgment in respect of such death or bodily injury against the deceased person if he were living". This hypothesis referred to the rule, which still prevailed at the time the provision was enacted, that the liability of a tortfeasor did not survive his death. Judgment could not be obtained in respect of the tort if he died. The very condition expressed by the provision involves the cesser of liability on death. Now the executors and administrators of the tortfeasor are insured persons in the natural sense of that term. The term is defined in sub-s. (2) (a) as follows - "Where, in respect of the death of or bodily injury to any other person caused by or arising out of the use of a motor vehicle, liability has been incurred by any person (in this subsection referred to as the 'insured person') who is insured against such liability under (i) a third-party policy; or" etc. The executors and administrators of a person insured under such a policy are themselves insured under the policy and liability has been incurred which rests upon them. There seems to be no reason why they are not insured persons within the words. But it is clear that with the change in the law the whole hypothesis has become false. The liability survives the tortfeasor: the executors and administrators are indemnified against the liability by the policy and the death of the original insured does not prevent the recovery of judgment upon the liability. The subject of the condition correctly understood has gone. In other words, so far as it concerns the consequence of the death of the insured the provision is spent. (at p383)

8. It seems clear enough that the inappropriateness of the words precludes the application of the provision to such a case as the present and that is no accident. If the paragraph is written with the names of Baxter, Genders and Dowd identifying the persons to whom the general words refer it will be seen that the provision cannot apply. One way of so writing it is this - Where in respect of the death of any other person (Dowd) caused by or arising out of the use of a motor vehicle (Baxter's cycle) liability (scil. to Mrs. Dowd) has been incurred by any person (Baxter's administrator) who is insured against such liability under a third party policy and where the insured person (Baxter) is dead any person (Genders) who could have obtained judgment in respect of such death against the insured person (Baxter) if he were living may recover against the insured person (Baxter) if he were living may recover against the authorized insurer (of Baxter) (The Government Insurance Office) (scil. recover contribution). On this identification of the persons, it will be seen that the person incurring liability is Baxter's estate but the insured who is dead is Baxter. Clearly Baxter did not incur a liability : he died too soon. Sub-section (4) of s. 2 of the 1944 Act deems the cause of action to subsist at his death only for the purpose of Pt. II of that Act, not for the purposes of the Motor Vehicles (Third Party Insurance) Act 1942. Yet plainly liability must have been incurred, for the purpose of s. 15 of the latter Act, by the insured person, and it is he who must be dead. But it is Baxter who is dead not his administrator, the Public Trustee. Again for the purpose of the claim for contribution you must put in Genders' name as the person who could but for the death of Baxter have obtained judgment. But this involves the introduction of a person who is not the person to whom the liability in respect of the death of Dowd was incurred, i.e. Mrs. Dowd, and that plainly is not what the provision intends. Again while it is true enough to say that the liability of Baxter's administrator to pay contribution was in respect of the death of Dowd, it may be another thing to say that Genders' right to sue the estate of Baxter for contribution makes him a person "who could have obtained judgment in respect of such death against the insured person if he were living". (at p384)

9. To write the provision with a different identification of persons is to encounter difficulties still more insuperable. It may be written - Where in respect of the death of any other person (Dowd) caused by or arising out of the use of a motor vehicle (Baxter's cycle) liability has been incurred (scil. to Genders) by any person (Baxter's administrator) who is insured against such liability under a third party policy and where the insured person (Baxter) is dead any person (Genders) who could have obtained judgment (scil. for contribution) in respect of such death against the insured person (Baxter) if he were living may recover (scil.contribution) by action against the authorized insurer. Obviously it is not in the sense of a liability by one tortfeasor to another, that the opening words of the provision say "where in respect of the death of any other person caused by or arising out of the use of a motor vehicle liability has been incurred". Again there is the difficulty that Baxter died but he was not liable and his administrator who is liable did not die. (at p385)

10. The fact is that the provision will not do the work demanded of it and the reason is that the language was framed to deal with quite another difficulty, one that has been removed by the very legislation that is now invoked for the purpose of applying the provision to an entirely new use. (at p385)

11. For all these reasons judgment for the defendant in demurrer was rightly given on the first count. As the appeal is from that judgment it must be dismissed. (at p385)

MENZIES J. This is an appeal by the plaintiff from so much of a decision of the Full Court of the Supreme Court of New South Wales as decided that the defendant's demurrer to the first count in the plaintiff's declaration was good. (at p385)

2. The origin of the action was a collision which occurred on 14th May 1948 when a motor vehicle driven by a servant of the plaintiff Genders collided with a motor cycle ridden by one Baxter - who was insured against third party liability with the defendant Government Insurance Office of New South Wales - and both Baxter and his passenger, Dowd, were killed. The pleadings do not show the order in which Baxter and Dowd died, but on this appeal it was stated by counsel that Baxter died first. After Dowd's death, his widow sued Genders (1) under the Compensation to Relatives Act 1897-1946 for the loss of her husband, for which she recovered 1,065 pounds damages, and (2) under Pt. III of the Law Reform (Miscellaneous Provisions) Act 1944 for damages for nervous shock occasioned by her husband's death, for which she recovered 50 pounds. In the present action, Genders sued to recover contribution or indemnity in respect of his liability under those judgments. In the first count of his declaration, he claimed such relief against the Government Insurance Office and, in the second count, against the Public Trustee as administrator of the estate of Baxter. Both defendants demurred; the demurrer of the Government Insurance Office was upheld and that of the Public Trustee was overruled. The only matter before this Court is the appeal by the plaintiff against the upholding of the demurrer of the Government Insurance Office. (at p385)

3. The first count was based upon s. 15(2) of the Motor Vehicles (Third Party Insurance) Act 1942 which, it is claimed, authorized Genders to recover from the Government Insurance Office an amount equivalent to that for which he could have obtained judgment against Baxter, if he were living, by way of contribution or indemnity. The argument took the following steps:-(1) If Baxter were living, Genders would be entitled to recover judgment against him for contribution or indemnity pursuant to s. 5 of the Law Reform (Miscellaneous Provisions) Act 1946; (2) Baxter was insured against such liability to contribute or to indemnify under his third-party policy with the Government Insurance Office; (3) the liability to contribute or to indemnify is properly to be regarded as one which was incurred by Baxter during his life; and (4) the judgment Genders could have recovered against Baxter, if he were alive, for such contribution or indemnity, would be "in respect of" the death of Dowd. (at p386)

4. The contribution between joint tortfeasors provided for by s. 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is in respect of tortious damage for which the plaintiff is liable and the defendant "is, or is if sued, found liable". Genders is liable to Mrs. Dowd in the sums of 1,065 pounds and 50 pounds for his servant's negligence in bringing about the collision which resulted in Dowd's death, and it must be assumed for the purposes of these proceedings that the collision was also brought about by Baxter's negligence. Had Baxter been alive, therefore, he would, had he been sued by Mrs. Dowd, have been liable in respect of the same damage as Genders, so that Genders could have sued Baxter for contribution or indemnity but for his death. The appellant's first contention is therefore made out. (at p386)

5. The next contention is that Baxter's third party policy with the Government Insurance Office covered such liability, and it raises the general question whether a third party policy in accordance with the Motor Vehicles (Third Party Insurance) Act covers liability to contribute or indemnify pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. This turns on s. 10(1)(b)(i) of the Motor Vehicles (Third Party Insurance) Act, which requires a policy to insure the owner and driver of a motor vehicle against "all liability incurred . . . in respect of the death of . . . any person caused by or arising out of the use of the motor vehicle . . . . " The question whether a policy in conformity with the Act such as there was here covers the liability of one tortfeasor to another to indemnify or make contribution in accordance with the Law Reform (Miscellaneous Provisions) Act 1946, seems to me one that should be answered affirmatively, because the liability to bear or share the damage arising out of the use of one motor vehicle involved with another motor vehicle in a collision which results in the death of a third person seems naturally to fall within the description "liability incurred . . . in respect of the death of . . . any person . . . arising out of the use of the motor vehicle". What the one tortfeasor claims against the other is that he should bear in whole or in part the damage for which both are liable in respect of the death which arises out of the use of the motor vehicle; furthermore, because in s. 10(1)(b)(i) the phrase "arising out of" as well as the phrase "caused by" is used, it is clearly immaterial that the death was due to the use of both vehicles involved in the collision. The words "liability . . . in respect of . . . death" are words of wide import and it seems to me that a liability does not fall outside them because it is owed to a person who does not claim through the person whose death arose from the use of the motor vehicle and whose right depends upon his own tortious liability for the death. It is the liability of the person insured with which the sub-section is concerned, not the person to whom the liability is owed and, in the case under consideration, that liability arises because death arose from the use of a motor vehicle for which the insured is "liable". The question has from time to time arisen whether an action for contribution or indemnity falls within a particular statutory description, e.g., an action in respect of neglect or default in the execution of an Act, duty or authority, Tuckwood v. Rotherham Corporation (1921) 1 KB 526 ; an action for the recovery of a sum of money for having negligently done or omitted to do something under a relevant Act, Nickels v. Parks (1948) 49 SR (NSW) 124; 65 WN 273 ; an action for damages in respect of personal injury causing death, Unsworth v. Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73 . In each of these cases, it was decided that the action for contribution fell outside the description, but it seems to me that the description we are concerned with here is wider than any of those with which the cases cited were concerned, and while in some cases there may be good reason for confining the meaning of the general words "in respect of", there is no reason for restricting their amplitude in a statutory provision that is clearly enough intended to secure comprehensive protection to drivers of motor vehicles, not only for their own good but for the benefit of those who are affected by the use of such vehicles. I conclude, therefore, that the second contention is made out. Before leaving this part of the case, I should say, however, that my foregoing conclusion about the meaning of the words "liability incurred . . . in respect of the death of . . . any person . . . arising out of the use of the motor vehicle" in s. 10(1)(b)(i) does not carry with it as a necessary corollary the conclusion that a judgment for contribution or indemnity would be a "judgment in respect of the death of . . . any person caused by or arising out of the use of (the) motor vehicle" for the purposes of s. 15. This latter problem is similar to that which has given rise to the difference of opinion between O'Bryan J. in Australian National Airways Pty. Ltd. v. Vines (1950) VLR 510 and Coppel A.J. in Knowles v. Sheen (1953) VLR 109, at p 110 . In Unsworth v. Commissioner for Railways (1958) 101 CLR 73 , Fullagar J. (1958) 101 CLR, at p 86 expressed his preference for the view of Coppel A.J. that a judgment for contribution was not a judgment "in respect of (the) death or bodily injury" of the original plaintiff and, in this case, Owen J. has expressed a similar preference. As Hardie J. points out in this case, there is a similar difference of opinion in New Zealand to that which exists in Victoria. In these circumstances and because it is not necessary to decide the question, I think it better to leave it open whether a judgment in favour of Genders against Baxter for contribution would be a judgment in respect of the death of Dowd. (at p388)

6. Having thus dealth with the fourth contention, it remains to consider the third, and this necessitates resort to the actual language of s. 15(2)(a) of the Motor Vehicles (Third Party Insurance) Act, which is set out in the judgment of the other members of the Court and which I will not repeat. Section 15(2)(a) falls naturally into two parts: the first part is concerned with an actual situation and, for present purposes, the three elements of that situation are (1) that the death of Dowd arose out of the use of Baxter's motor cycle; (2) that this occurred in circumstances giving rise to liability on the part of Baxter to Genders; and (3) that Baxter was insured against such liability (if any) under his third party policy. My earlier conclusions cover the first and third of these elements because so far I have decided that any liability of Baxter to Genders is covered by the third party policy and, if Baxter were alive, he would be liable to Genders for contribution or indemnity. This leaves outstanding, however, the second element, which is whether, for the case to fall within the first part of s. 15(2)(a), Baxter must have incurred liability to Genders before he died and whether this was the case here. The language of the provision indicates the necessity for a subsisting liability. The critical words are "liability has been incurred" by a person who is "insured against such liability" and "where the insured person is dead", judgment could have been obtained against him "if he were living". Now it is clear that Baxter, when he died, was not liable to Genders for contribution or indemnity. Dowd was alive and Genders was not liable to Mrs. Dowd. Authorities such as Bitumen and Oil Refineries (Australia) Ltd. v. Commissioner for Government Transport [1955] HCA 1; (1954) 92 CLR 200 , which show that there is no cause of action for contribution or indemnity before the plaintiff tortfeasor's liability has been ascertained, would apply a fortiori to this case. Thus far, Genders' case must fall outside the first part of s. 15(2)(a). It was argued, however, that it is brought within it by the Law Reform (Miscellaneous Provisions) Act 1944, s. 2, sub-ss. (1) and (4), and that by reason of these provisions Baxter's liability to Genders to contribute or to indemnify is one that must be deemed to have been subsisting at Baxter's death. It is clear that sub-s. (1) of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944, by itself, does not go far enough because it does no more than keep alive against the estate of a deceased person causes of action "subsisting against . . . him" and, as I have already pointed out, Genders had no cause of action subsisting against Baxter when he died. It is then sought by resort to sub-s. (4) of s. 2 to make Baxter's inchoate liability to Genders one subsisting at the time of his death for the purposes of sub-s. (1); but I do not think that sub-s. (4) can be so used because of the difficulties of regarding a failure to make contribution or indemnity as Genders' "damage" for the purposes of the sub-section and of treating Genders' liability to Mrs. Dowd as sufficient, since that arose from the negligence of his own servant and not by any act or omission of Baxter; furthermore, it is the "damage" that is covered by sub-s. (4) that is part of the cause of action deemed to be subsisting for the purposes of sub-s. (1), not some other damage. Approaching the matter in this way, it is apparent that the case does not come within the first part of s. 15(2)(a) of the Motor Vehicles (Third Party Insurance) Act. (at p389)

7. An attempt was made, however, to by-pass the difficulties I have just discussed by reading the first part of s. 15(2)(a) as relating to Baxter's liability to Mrs. Dowd rather than to Genders. Such a reading would seek to find subsisting at the date of Baxter's death liability of Baxter to Mrs. Dowd in respect of the death of Dowd, which was covered by the third party policy. To the objection that Baxter pre-deceased Dowd, the reply is made that by virtue of sub-s. (4) of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1944, the liability is deemed to have been subsisting against him when he died. The short answer to this is that although sub-s. (4) of s. 2 can be used to establish a liability subsisting at death for the purpose of the cause of action surviving death and continuing against the estate of the person dying - Partridge v. Chick (1951) 84 CLR 611 - it cannot be used to create a subsisting liability for the purposes of s. 15(2)(a). It is only "for the purposes of this Part" that sub-s. (4) of s. 2 operates. (at p390)

8. It seems to me, therefore, that however the case may be put, it falls outside the first part of s. 15(2)(a) of the Motor Vehicles (Third Party Insurance) Act. (at p390)

9. But even if what happened here could be brought within the first part of that provision, the plaintiff, to succeed, would still have to bring the action within the second part of the provision, which, as I have said, takes as its working hypothesis that judgment could be obtained against the insured person - that is, Baxter - "if he were alive". However, assuming for present purposes that a judgment for contribution is a judgment in respect of the death of Dowd, it seems to me that the section is all of one piece and that the only liability that can be enforced against the third party insurer is a liability which was incurred by the deceased to the plaintiff and which is covered by the third party policy. It is not to be thought that the insurer is made liable under the second part of s. 15(2)(a) for any liability other than the one which would bring the cause of action within the first part of that sub-section. In other words, the sub-section does no more than substitute the insurer for the insured as the defendant in a case where the plaintiff has lost his action against the insured because of his death. It is for this reason that it cannot help the plaintiff in these proceedings to treat Baxter's liability to Mrs. Dowd as the liability to which the first part of s. 15(2)(a) relates. This is the view of the section taken by Owen J. in this case and in two other cases as yet unreported - Boyle v. Nominal Defendant, and Yellow Express Carriers Ltd. v. Government Insurance Office of New South Wales. Because, as I have already said, there was no liability by Baxter to Genders for contribution or indemnity that can be treated as falling within the first part of s. 15(2)(a), such an action cannot be maintained by Genders against the insurer under the second part of the sub-section. There is, therefore, no way in which the case can be brought within the section. (at p390)

10. It was also sought to found the claim directly upon the Law Reform (Miscellaneous Provisions) Act 1946, s. 5(1)(c). As this stood on 11th September 1951, when this action was commenced, it is plain that it had no application because the Government Insurance Office could not be regarded as a "tort-feasor". It was then sought to rely upon the amendment made in December 1951 by s. 6 of the Motor Traffic (Amendment) Act 1951 but, in the first place, the amendment was made too late to have any application and, in the second, the amendment applies only when the phrase "any tort-feasor" appears in s. 5(1)(c), not when the word "tort-feasor" appears. It does not apply, therefore, to expose the Government Insurance Office to any action for contribution by bringing it within the phrase "any other tort-feasor". (at p391)

11. The reasons I have given are sufficient to dispose of this appeal and it is for those reasons that I think that the demurrer was rightly upheld and that this appeal must fail. I would add, however, that I have had the advantage of reading the judgment of the Chief Justice, McTiernan, Taylor and Windeyer JJ. but, while acknowledging the force of their reasoning, I would, for myself, prefer to leave as open questions whether the Law Reform (Miscellaneous Provisions) Act 1946, s. 5, of itself gives Genders a cause of action against Baxter's estate for contribution or indemnity, and whether the operation of s. 15(2)(a) of the Motor Vehicles (Third Party Insurance) Act (except in cases where the insured person cannot be found) is now spent. (at p391)

ORDER

Appeal dismissed with costs.