Warren Lyons v Paul Finnan and ors [2004] NSWSC 814

Warren Lyons v Paul Finnan and ors [2004] NSWSC 814

Although the pleaded case and available evidence indicated that the plaintiff's injuries did not fall within the definition of "injury" in the Motor Accidents Act 1988, the plaintiff's prior conduct, including serving a claim form and particulars on GIO, serving the statement of claim on GIO, referring to GIO as the third defendant's insurer, and pleading that GIO was the licensed CTP insurer, showed that the plaintiff was keeping open and asserting an alternative right to recover from GIO any damages awarded against the third defendant. GIO was therefore entitled to be joined, to remain in the proceedings, and to take part in the trial. Once the plaintiff no longer pursued the claim...

Jurisdiction
Australia
Judgment Date
15 November 2004
Procedural Posture
Common Law Division Proceedings Arising Out of Personal Injuries Sustained During Loading of a Truck, With CTP Insurer Joined Under the Motor Accidents Act 1988 / After Settlement Between the Plaintiff and the First, Second and Third Defendants; Fourth Defendant Sought Judgment and Costs, Including Indemnity Costs
Outcome
Judgment entered for the fourth defendant against the plaintiff; plaintiff ordered to pay the fourth defendant's costs of the proceedings and costs application; application for indemnity costs dismissed.
Legal Topics
['joinder of Insurer' 'ctp Insurance Indemnity' 'definition of Injury Under Motor Accidents Legislation' 'ordinary Costs and Indemnity Costs' 'entry of Judgment']
['civil Procedure' 'costs' 'motor Accidents' 'insurance'] ['joinder of Insurer' 'ctp Insurance Indemnity' 'definition of Injury Under Motor Accidents Legislation' 'ordinary Costs and Indemnity Costs' 'entry of Judgment']

Case Brief

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Procedural Posture

Common Law Division Proceedings Arising Out of Personal Injuries Sustained During Loading of a Truck, With CTP Insurer Joined Under the Motor Accidents Act 1988 / After Settlement Between the Plaintiff and the First, Second and Third Defendants; Fourth Defendant Sought Judgment and Costs, Including Indemnity Costs

Legal Issues

  1. 1 ['Whether GIO General Limited was entitled to be joined and remain in the proceedings under s 47A of the Motor Accidents Act 1988 to contest liability to indemnify the third defendant.' 'Whether judgment should be entered for GIO General Limited against the plaintiff after the plaintiff no longer pursued relief against it.' 'Whether GIO General Limited was entitled to its costs of the proceedings and costs application.' "Whether GIO General Limited's costs should be ordered on an indemnity basis after its offer of settlement."]

Ratio Decidendi

Although the pleaded case and available evidence indicated that the plaintiff's injuries did not fall within the definition of "injury" in the Motor Accidents Act 1988, the plaintiff's prior conduct, including serving a claim form and particulars on GIO, serving the statement of claim on GIO, referring to GIO as the third defendant's insurer, and pleading that GIO was the licensed CTP insurer, showed that the plaintiff was keeping open and asserting an alternative right to recover from GIO any damages awarded against the third defendant. GIO was therefore entitled to be joined, to remain in the proceedings, and to take part in the trial. Once the plaintiff no longer pursued the claim...

Court Disposition

Judgment entered for the fourth defendant against the plaintiff; plaintiff ordered to pay the fourth defendant's costs of the proceedings and costs application; application for indemnity costs dismissed.

Orders

  • ['Direct the entry of judgment for the fourth defendant against the plaintiff.' "Order the plaintiff to pay the fourth defendant's costs of the proceedings, including the costs of this application for costs." "Dismiss the fourth defendant's application for indemnity costs."]