IAG NEW ZEALAND LIMITED v FORDE [2020] NZHC 3233

IAG NEW ZEALAND LIMITED v FORDE [2020] NZHC 3233 [8 December 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2019-412-000087[2020] NZHC 3233BETWEEN IAG NEW ZEALAND LIMITEDPlaintiffAND BRYAN WILLIAM FORDEDefendantHearing: 30 November 2020Appearances: I J Thain and A L Sweeney for PlaintiffD R Tobin for DefendantK Stevens for Insurance & Financial Services OmbudsmanJudgment: 8 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 8 December 2020 at 2.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 8 December 2020Introduction[1] On the morning of Saturday, 3 February 2018, the defendant, Bryan Forde, andhis fiancée, Charlene Day, were returning home from work along State Highway Onenear Milton. Ms Day was driving the car and held a learner licence. Although weatherconditions were fine, the road was straight, and there was good visibility, the carcrossed the centreline. It travelled on the wrong side of the road for about 40 to50 metres before crashing into an oncoming campervan.[2] The campervan driver braked heavily but was unable to avoid the collision.Ms Day took no evasive action at all. All three occupants suffered serious injuries,and Ms Day was subsequently charged with two charges of careless use causing injury.While Ms Day cannot remember the accident, she accepts she fell asleep at the wheel.[3] Mr Forde made a claim under his insurance policy for the damage to bothvehicles involved in the crash. IAG declined the claim, in reliance on an exclusionclause in the policy. It said "[t]here is no cover if your vehicle is being driven by orin the charge of any person who is not driving according to the conditions of his orher driver licence". IAG said Ms Day was not driving in accordance with theconditions of her learner licence because Mr Forde, who was a fully licensed driver,was not "in charge" of the vehicle as required by cl 16(1)(a)(ii) of the Land Transport(Driver Licensing) Rule 1999 (the Rule). This is because, on the balance ofprobabilities, Mr Forde must also have fallen asleep shortly before the crash.[4] When IAG advised Mr Forde that it was declining the claim on that ground,Mr Forde, through his lawyer, requested a review of the claim. On 18 July 2018, IAGadvised Mr Forde's lawyer that its decision was unchanged, and the matter had reached"deadlock", allowing the matter to be referred to the Insurance and Financial ServicesOmbudsman (IFSO) Scheme for resolution.[5] After receiving information provided to it by the parties, the IFSO issued aninitial decision on the complaint (referred to as an Assessment) upholding thecomplaint and concluding that IAG should meet the claim under the policy.[6] IAG did not accept this Assessment and, as provided for under the IFSOScheme Terms of Reference, commenced these proceedings seeking the followingdeclarations:A If asleep, a person is not "in charge of" a vehicle for the purposes of16(1)(a)(ii) of the Rule.B When the defendant was asleep:(i) the defendant was not "in charge of" the Car for the purposesof the Rule;(ii) Ms Day was not driving according to the conditions of herdriver licence under the Rule;(iii) the Exclusion Clause in the Insurance Policy applied; and(iv) there was no cover under the Insurance Policy.C The plaintiff was entitled to decline the Claim.[7] At issue is:(a) whether, as a matter of law, the declarations sought are correct; and, ifthey are(b) whether I should exercise my discretion to decline to make some or allof the declarations because to do so would be contrary to the IFSOScheme Terms of Reference (which preclude any right of review orappeal of the IFSO's decision), or for any other reason.The Insurance and Financial Services Ombudsman Scheme[8] The IFSO Scheme was set up in 1995 as a joint initiative by the governmentand the financial services industry,1 to provide a dispute resolution service tocustomers who had unresolved complaints, as an alternative to the Courts.[9] The IFSO Scheme is an approved scheme under the Financial ServiceProviders (Registration and Dispute Resolution) Act 2008 (the Act). It has over 4,600financial service provider participants and, since its inception, has responded to over66,500 complaint enquiries, and investigated more than 7,000 complaints. TheScheme is independent of both the industry and consumers, and its principle powersand duties are to resolve, without charge to a complainant, complaints arising out ofthe provision of financial or insurance services and to do so in a way that is accessible,independent, fair, accountable, efficient and effective.2 The responsibility forexercising the powers and duties of the Scheme is vested in the Ombudsman who maydelegate those powers to employees or contractors of the Scheme.1 Which is defined to include insurance providers.2 Reflecting the principles set out in s 52(2) of the Financial Service Providers (Registration andDispute Resolution) Act 2008.[10] The IFSO Scheme operates in accordance with Terms of Reference whichreflect the provisions of the Act and which require the Ombudsman to make decisionsabout complaints "by reference to what is, in its opinion, fair and reasonable in all thecircumstances"3 and having "regard to any applicable rule of law".4[11] This principle gives the Ombudsman some latitude to depart from a strict legalapproach when considering a complaint and making recommendations. Thisflexibility was identified in Contact Energy Ltd v Moreau, which considered a similarprovision in a complaints resolution scheme for electricity and gas users.5 ThereThomas J observed "the Commissioner may depart from the relevant law if it is fairand reasonable to do so".6 Similarly, Courtney J, discussing the same complaintsresolution service, made the following observation:7[9] However, as I come to later, the Commissioner was not actuallyrequired to apply the law, merely to have regard to it. The obligation to "haveregard to" a specified matter is commonly imposed on administrativedecision-makers and its meaning is well settled as requiring thedecision-maker only to give genuine attention and thought to the specifiedmatter, rather than actually give effect to it.[12] The decision-making process which the Ombudsman must follow is set out inpara 13 of the Terms of Reference. The first stage is for the Ombudsman (or theOmbudsman's delegate) to prepare an Assessment and provide it to both thecomplainant and the Scheme member (the Participant). The Assessment considers theinformation provided by the parties and expresses a view on whether the complaintshould be upheld or not.[13] The parties may agree to resolve the complaint in accordance with theAssessment. However, either party can request a review of the Assessment, althoughthe Ombudsman has a discretion as to whether to carry out a second Assessment. Ifthe Ombudsman does, that can result in a further written decision (called aRecommendation) and, again, the parties can agree to resolve the complaint in3 Insurance & Financial Services Ombudsman "Terms of Reference" (1 July 2015) at 12.1.4 At 12.2.5 Contact Energy Ltd v Moreau [2018] NZHC 2884, [2019] NZLR 692.6 At [121].7 Vector Ltd v Utilities Disputes Commissioner [2018] NZHC 3096.accordance with the Recommendation.8 If the Recommendation is accepted by thecomplainant but not by the Participant, the Ombudsman may, on behalf of the Scheme,issue a decision, called an Award, which is binding on both parties.9[14] Paragraph 13.3 of the Terms of Reference provides that "[n]o decision of theScheme is capable of review or appeal in any form, to any other person, court, tribunal,statutory complaints authority, or any other body, except as contemplated by theAct".10 However, para 15 of the Terms of Reference sets out specific circumstanceswhen a Participant can bring Court proceedings in relation to a complaint.Specifically, paragraph 15.4 provides:A Participant may not prevent the Scheme from considering, or continuing toconsider, the Complaint by issuing proceeding in court, unless:(a) the Participant determines that the Complaint involves an issue whichhas important consequences for the business of the Participant or ofParticipants generally or an important or novel point of law; and(b) the Participant has notified the Scheme, prior to the Scheme makingan Award in relation to the Complaint, that it intends to institute HighCourt proceedings to resolve the issue by way of declaratory judgmentand the Participant provides an undertaking that it will:(i) within 3 months of the date of the notice, institute proceedingsin the registry of the High Court nearest the Complainant'sresidence;(ii) pay the Complainant's costs and disbursements (if nototherwise agreed, on a solicitor and own client basis) of theproceedings at first instance and any subsequent appealproceedings commenced by the Participant (including theComplainant's costs and disbursements associated with anycross-appeal instituted by the Complainant in relation to theParticipant's appeal proceedings);(iii) make interim payments in relation to those costs anddisbursements if and to the extent that this is reasonable; and(iv) prosecute the Complaint expeditiously.8 Terms of Reference, above n 3, at 13.1(b).9 At 13.1 (c) and (d). However, I was advised at the hearing that in its 25 year history, the Schemehas never needed to make an Award.10 The Financial Service Providers (Registration and Dispute Resolution) Bill removed a proposedappeal process before the Bill was enacted, but the Select Committee Report noted that parties"would continue to have the usual right of appeal through judicial review".[15] Paragraph 15.5 provides that when the IFSO Scheme is notified by theParticipant that it intends to institute High Court proceedings, the Scheme must ceaseconsidering the complaint for so long as the Participant complies with the undertakingsrequired by paragraph 15.4(b).[16] In this case, an Assessment issued in respect of Mr Forde's complaint underthe Terms of Reference. At that point, IAG considered the Assessment raised an issuewhich had important consequences for its insurance business and it began thisproceeding seeking the declarations set out at [6] above.The Assessment[17] The Assessment issued on 22 May 2019. It set out the background to thecomplaint, the terms of the relevant exclusion clause from the policy, and the learnerlicence requirements under cl 16(1) of the Rule. It summarised IAG's submission,noting IAG considered it was "almost an irresistible inference" that Mr Forde musthave been asleep at the time of the accident, otherwise he would have alerted Ms Dayor taken some other action to try and correct the vehicle. It referred to the fact thatMs Day had appeared before the District Court on two charges of operating a vehiclecarelessly and thereby causing injury, but not with breaching the conditions of herlearner licence. It also noted that the Judge said, when sentencing her, that it appearedthat both she and Mr Forde had been asleep at the time the accident occurred.11[18] The Assessment then went on to discuss the meaning of the requirement incl 16(1) of the Rule, that a person who has held a full licence for at least two yearsmust be "in charge of the vehicle". The author of the Assessment said:I believe it is clear in the context of the policy and the Rule that to be "incharge of" means to take responsibility for, or be in supervision of, and is notthe same as taking control of the vehicle in an active, physical sense.She went on to say:Mr Forde was "in charge of" the vehicle, which means that he was responsiblefor supervising Ms Day's driving of the vehicle. It appears most likely that hewas asleep, or was otherwise not paying attention, when Ms Day fell asleepand veered across the road.11 Police v Day CRI-2018-012-000652 DC Dunedin, 1 November 2018.[19] However, she concluded that this did not mean that:Ms Day was "not driving according to the conditions of her driver licence",but rather that Mr Forde was negligent in his performance of his obligationsto be "in charge of" the vehicle.[20] The Assessment found Mr Forde was either asleep or not paying attention, butconsidered neither scenario meant he was not "in charge of" the vehicle. Accordingly,it reached the following conclusion:IAG must establish that Ms Day was "not driving according to the conditionsof her driver licence". I do not believe there is any evidence to establishthat Ms Day was driving in breach of her driver's licence conditions, as setout in the Rule. Therefore, I believe that IAG must meet the claim under thepolicy.These proceedings[21] IAG disagreed with the conclusion that Ms Day was not in breach of her learnerlicence if the fully licensed driver accompanying her was asleep, and theseproceedings commenced under para 15 of the Terms of Reference.[22] The parties have prepared an agreed statement of facts for the purpose of thisapplication. In it they outline the facts as set out at the introduction to this decision.They agree that the "facts surrounding the Crash are inexplicable unless [Ms Day] fellasleep either before or at the time that the Car crossed the centreline of StateHighway 1, and [Mr Forde] did not take any action to intervene in time". They alsoagree, albeit for the purposes of this proceeding only:(a) that on the balance of probabilities, Mr Forde had fallen asleep prior tothe car crossing the centreline. He says that may have been just prior;and(b) the evidence does not establish, on the balance of probabilities, theparticular length of time for which Mr Forde had been asleep when thecar crossed the centreline.[23] Mr Tobin appeared for Mr Forde. He candidly acknowledged that his clientwas "agnostic" as to the outcome of the hearing as IAG had made an ex gratia paymentto his client and, as required by the Terms of Reference, IAG was meeting Mr Forde'ssolicitor/client costs in representing Mr Forde's position at this hearing.[24] Submissions were also made on behalf of the IFSO Scheme by Ms Stevens.She participated primarily to inform the Court about the working of the Scheme andto ensure that the terms of any declaration did not usurp the function of the Scheme,nor breach the restrictions found in para 13.3 of the Terms of Reference on reviewingor appealing decisions of this Scheme.The declaratory judgment jurisdiction[25] IAG brings the application under either the Declaratory Judgments Act 1908or the Court's inherent jurisdiction. It does that out of an abundance of caution becauseof uncertainty as to whether interpretation of the Rule is covered by s 3 of theDeclaratory Judgments Act. Section 3 says a declaratory judgment or order may beobtained in circumstances which include "where any person has done or desires to doany act the validity, legality or effect of which depends on the construction or validityof any statute, or any regulation made by the Governor-General in Council understatutory authority, ". The Rule is not "any regulation made by theGovernor-General in Council under statutory authority", but rather, it is a rule madeby the Minister of Transport.[26] However, what is sought is a declaration on the interpretation of the Rule, forthe purposes of construing the exclusion clause in IAG's policy. As such, it isencompassed by s 3 as an "agreement made or evidenced by writing". In any event,it is clear this Court has inherent jurisdiction to make a declaration about theinterpretation of the Rule.1212 Bartle Group Ltd v New Zealand Transport Agency [2020] NZHC 35 at [70].[27] Although I have jurisdiction to determine IAG's application, I maynevertheless decline to grant relief in the exercise of my discretion. As the Court ofAppeal said in New Zealand Insurance Co Ltd v Prudential Assurance Inc Co Ltd:13The jurisdiction to make orders under the Declaratory Judgments Act iswholly discretionary. The cases defining the attitude of the courts in theexercise of that discretion are numerous and they establish certainguidelines which will generally be followed. The Court will not answer purelyabstract questions in anticipation of an actual controversy. It will not deal withmixed questions of fact and law. The procedure is designed to provide aspeedy and inexpensive method of obtaining a judicial interpretation wherethe matter in dispute cannot conveniently be brought before the court in itsordinary jurisdiction and where a declaratory judgment would be appropriaterelief. But the procedure should not be adopted where the party who institutesthem can without real difficulty have the matter in dispute disposed of in anordinary action.[28] I will consider these issues further when discussing whether declarationsshould be made as sought in this case.SubmissionsIAG's submissions[29] Counsel for IAG, Mr Thain, explains the declarations are sought because IAGis not aware that any Court has determined whether a learner driver is driving inaccordance with the conditions of their licence when their accompanying person isasleep. IAG says this issue has important consequences for its business and for thebusiness of other insurers.[30] IAG points out that the Rule is an "enactment" to which the Interpretation Act1999 applies. Therefore, the meaning of cl 16(1) must be ascertained from its text andin light of its purpose.14 The expressly stated purpose of the Rule is "[t]o makesignificant gains in land transport safety through the implementation of an improvedsystem for driver licencing".1513 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.14 Interpretation Act 1999, s 5.15 Land Transport (Driver Licensing) Rule 1999, sch 1, which sets out the Objective of the Rule.[31] Mr Thain submitted that the clear purpose of the Rule is to improve road safetyby targeting the risks associated with young and novice drivers. With that in mind, therequirement for a fully licensed driver to be "in charge", must be a requirement to actin a supervisory capacity.[32] This is supported by judicial decisions. In Anderson v Police, the Courtconsidered an appeal against sentence for disqualification for driving contrary to thecondition of a learner licence.16 In explaining the role of a fully qualified driver toaccompany a learner driver, Miller J said:17The qualified driver's task is to supervise a learner whose practical skills havenot been tested, and so ensure that the vehicle is operated safely and lawfully.The legislature's purpose in imposing these requirements was plainly that ofensuring road safety.[33] Similarly, in Maneff v Police, Mallon J dismissed an appeal against a sentenceof disqualification for driving in breach of the conditions of a learner licence, includingwithout being accompanied by a fully licensed driver. She confirmed that thesupervisory task of the licensed driver is "one directed to road safety and the failureto comply with the requirement is accordingly an offence that relates to road safety".18[34] In light of the road safety purpose of the Land Transport Act 1998, and the Rulemade under it, Mr Thain submits that the requirement to be "in charge of" the vehiclemust mean to be actually in charge, in the sense of supervising the learner and beingable to give instructions or commands and to take corrective action when required. Aninterpretation which allowed for a sleeping person to be "in charge" would defeat thepurpose of the requirement and would be contrary to the ordinary meaning of thewords in the context of a moving vehicle.[35] In addition, he says, the position is not affected by the intention of the learnerdriver. Lack of intention or knowledge by the learner driver does not change the factthat the sleeping person is not, in fact, in charge of the vehicle, nor does it change theroad safety risk posed by a learner driver driving with no actual supervision.16 Anderson v Police HC Wellington CRI-2009-435-7, 24 November 2009.17 At [7].18 Maneff v Police HC Wellington CRI-2011-485-56, 8 September 2011 at [9].[36] Mr Thain pointed out that the exclusion clause applies to driving in breach oflicence conditions because to do so increases the risk of loss, not because it constitutesan offence, and he cautioned against applying the test for criminal liability to thequestion of whether the Rule was complied with in terms of the policy. Heacknowledged that the offence of driving contrary to the conditions of a licence is oneof strict liability and therefore, a defence of total absence of fault would be availableto a defendant. However, the road safety objective that arises from the lack ofsupervision (and therefore, for the insurer, the consequent risk), is independent ofconsiderations of whether the driver deserves to be punished under our criminal law.It is the increased risk caused by a learner driver not having supervision which theexclusion clause addresses.[37] Any harshness of this strict approach can be ameliorated by the application ofs 11 of the Insurance Law Reform Act 1977 (if the breach of the exclusion clause didnot cause or contribute to the accident), or by the ability to moderate the strict legalposition by what is "fair and reasonable" in the circumstances, if a dispute is referredto the Scheme.[38] Mr Thain pointed out that what IAG was seeking was simply a declaration asto the strict legal position when interpreting the exclusion clause in the circumstancesof the fully licensed driver being asleep. That declaration of the law could then betaken into account when resolving disputes through the Scheme.[39] Given the Assessment had not distinguished between a supervising drivercarrying out his or her duties negligently, and a supervising driver being asleep,Mr Thain said it was important for IAG to obtain clarity that the latter was clearly inbreach of the Rule, whereas the former circumstance was one to be determined on thefacts of the particular case.Mr Forde's submissions[40] Counsel for Mr Forde, Mr Tobin, advanced the position that, properlyinterpreted, the term "in charge of" means being responsible and having legal controlof the thing or person, but it did not require the person to be in control in any active orphysical sense.[41] Mr Tobin accepts that the question of construction which arises in this caseshould be approached with the road safety purposes identified in sch 1 to the Rule inmind. However, he says that there is no definition of the term "in charge of" in theRule. The Collins Shorter English Dictionary states that "in charge of" means "havingresponsibility for" or being "under the care of",19 but this does not require activeattention to the object of that responsibility all the time.[42] By way of analogy he referred to the Animal Welfare Act 1999 which defines"person in charge" as: in relation to an animal, includes a person who has the animal in thatperson's possession or custody, or under that person's care, control orsupervision.He submits it is clear from the context that such persons would be subject to the dutiesunder the Animal Welfare Act even if they were, for example, asleep for a time whilethe animal was in their care.[43] Mr Tobin also relies on Ross v Police, where the High Court said:20Clearly enough, , a distinction is to be drawn between "being driven by"and being "in the charge of". . Such a distinction is not novel. It isrecognised as possible, for example, as between a learner driver (driver) andowner (passenger) It is a distinction between actual physical control behinda wheel (driving), and the legal right to control or command (being in charge).[44] In his submission, while Mr Forde's ability to exercise legal control or thepower of command as to Ms Day's driving was inhibited by the fact he hadinadvertently fallen asleep, that did not mean that the car was no longer under his legalcontrol during the time. Rather, it meant that he was unable to properly perform hisobligations to be "in charge of" the car.[45] Similarly, he points to the case R v Crossan, where the accused, the intoxicatedowner of a car, was still found to be "in charge" of it, and therefore in breach of a dutyimposed by s 156 Crimes Act 1961 to avoid a danger to human life, when he allowed19 Collins Shorter English Dictionary (Harper Collins, 1993).20 Ross v Police HC Masterton M 29/87, 17 February 1988 at 10it to be driven by another drunk driver.21 If an intoxicated owner who was merely apassenger in a vehicle could be held to be "in charge" of a vehicle, that pointed againstsuch a role involving active supervision.[46] Mr Tobin also raised concerns about the practicality of requiring the fullylicensed driver to be actively supervising the learner driver throughout the journey.For example, if they were distracted at any point in time in the journey, that wouldmean they were not in charge and therefore the learner driver was in breach. In hisview, that outcome would be absurd and not what was intended by the Rule.[47] Mr Tobin was also critical about the breadth of the declaration sought by IAG.In his view, declarations B and C represent a rejection of the merits of thedetermination made by the Ombudsman and breached the prohibition on pursuing anappeal of a decision of the Scheme in any form. This position was supported byMs Stevens for the IFSO.[48] Finally, Mr Tobin argued that the declaration sought should not be granted inthe exercise of the Court's discretion. Any new case that may arise will not fall withinthe exact same factual setting as this case and so there is little utility in making thedeclarations sought, as each future case will still need to be determined on its ownfacts.AnalysisIs a sleeping licence holder "in charge of" a vehicle for the purposes of the Rule?[49] I have little difficulty accepting the submissions of the plaintiff that in light ofthe road safety purpose of the Land Transport Act and the Rule, the requirement to be"in charge" of the vehicle must mean to be actually in charge, in the sense ofsupervising the learner and being able to give instructions or commands and to takecorrective action when required.[50] That is supported by the totality of the provisions in cl 16.1(a) of the Rulewhich require the full licence holder:21 R v Crossan HC Invercargill T980970, 7 July 1998.(a) to have held the appropriate licence for at least two years and to not besubject to any conditions;(b) to be in charge of the vehicle; and(c) to be seated in the front passenger seat or, if there is no front passengerseat available, to be seated as close as is practicable to the driver.[51] There can be no doubt that this is to ensure that the full licence holder issufficiently experienced themselves to supervise a learner and is in a physical positionin the vehicle to enable that person to exercise those supervisory responsibilities.[52] I consider any lesser reading of the responsibilities of someone who is "incharge of" the vehicle would be contrary to the road safety purpose of the Rule. Wherethe fully licensed driver is asleep, he or she simply cannot exercise thoseresponsibilities, and the learner driver would be in breach of the Rule.[53] I do not consider the examples provided by Mr Tobin of where a person washeld to be "in charge" of something without exercising active control over it, arerelevant to the interpretation of the Rule. Those examples arise where the purpose ofthe statute is to require accountability to avoid harm. Thus, where a person has ananimal in their care, or has the ability to control a dangerous thing, it is appropriatethat they can not avoid liability by failing to fulfil their duty to prevent such harm.[54] While Mr Tobin raised concerns about the practicality of this approach andwhether it would then, by analogy, be extended to a distracted supervisor, that is notthe concern in this particular case. I accept that there is a difference between carryingout the supervisory duties negligently, and not carrying them out at all because thelicensed driver is asleep. This case only concerns the latter scenario.[55] Accordingly, I am satisfied that a full licence holder who is asleep is not "incharge of" a vehicle for the purpose of cl 16(1)(a)(ii) of the Rule.Was Ms Day not driving according to the conditions of her driver licence under theRule in this case?[56] The second part of the declaration sought by IAG relates to the specificcircumstances of this case, albeit on the assumption that the defendant, Mr Forde, wasasleep. That creates a quandary. The Assessment left that issue open. It concludedthat Mr Forde was either asleep or not paying sufficient attention. It did not conclude,on the balance of probabilities, that Mr Forde was asleep nor did it say how likely onescenario was over the other. However, IAG seeks a suite of declarations regarding itsability to decline the claim on this particular case on the assumption, for the purposesof this hearing alone, that the correct position is that he was asleep.[57] That then leads to the third declaration sought by Mr Thain which is adeclaration that IAG was entitled to decline the claim.[58] In my view, I am being asked to make a suite of declarations which are notconsistent with the factual findings in the Assessment, and which, accordingly, haveno obvious utility to the IFSO. It is for the IFSO to determine what the factualcircumstances were and if so, what regard should be had to the strict legal position indeciding what is "fair and reasonable" in the circumstances.[59] These issues all lead directly on to whether I should exercise my discretion tomake the declarations sought by IAG.Should I make the declarations sought in the exercise of my discretion?[60] I accept the question of whether a sleeping licensed driver is in charge of avehicle for the purposes of a Rule has arisen in the circumstances of this case becauseof the real possibility that Mr Forde was asleep when the accident occurred and theIFSO's apparent assumption that a sleeping driver was simply negligently dischargingthat duty. It is appropriate, therefore, that IAG sought to have that issue determinedin the courts, both in the event this claim continues through the dispute process, butalso if that issue arises in future insurance claims.[61] I accept, too, that given the barrier on appealing any decision of the IFSOScheme, it is appropriate that a declaration should be made at this juncture. Thatenables this and future decisions to proceed with a correct understanding of the legalposition. Accordingly, I make declaration A as set out in [6] above.[62] However, in my view, it would be inappropriate to make the other declarationssought. I say this for two reasons.[63] First, IAG's desire to have the legal position clarified is achieved by havingdeclaration A made. If (although it seems unlikely), the current complaint progressesfurther, that can be taken into account. However, it is not determinative of the claim.This is because the issue of whether, on the balance of probabilities, Mr Forde wasalso asleep before the accident has not yet been determined by the IFSO, and Mr Fordedoes not concede that for the purposes of the claim. In any event, the strict legalposition is not inevitably determinative of the claim. While due regard must be had toit, the decision must ultimately turn on what is fair and reasonable in thecircumstances.[64] Second, there is the concern that was raised by Ms Stevens, that making suchdeclarations is effectively exercising an appeal right in contradiction to the prohibitionon appealing any decision of the IFSO Scheme. While Mr Thain argued that nodecision arose which was subject to the prohibition until an award was made, I do notconsider that is correct. At each stage of the decision-making process, a decision ismade as to whether the complaint is upheld or not. What differs is the extent to whichthe parties are bound by it. That said, I accept that IAG was not intending this to be ade facto appeal. Rather, it sought that the law be clarified so that it could, potentially,rely on that finding, both in this case and in others. However, I consider that is satisfiedby making declaration A. The declarations sought at B and C are of no utility if thefactual basis is not agreed for the purposes of the IFSO Scheme's dispute resolutionprocesses. Declaration A can be taken into account in the facts of any particular case,including this one, as they are found to be.Result[65] For the reasons given above, I make the following declaration:A If asleep, a person is not "in charge of" a vehicle for the purposes of16(1)(a)(ii) of the Rule.[66] Noting that the plaintiff has met the defendant's costs in bringing thisproceeding, there is no issue as to costs and no costs order is required.Solicitors:DLA Piper, AucklandSumpter Moore, MiltonKaren Stevens, Barrister (for IFSO, Wellington)