Ripper & Ors v Gatenby & Ors

[2002] TASSC 45

Supreme Court of Tasmania

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For Australian Law.

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Interrogate

Catchwords

1. Tort Law
2. › Fatal accidents legislation
3. › Multiple actions
4. › Whether second action bars first action
5. › Whether s 6(1) prohibits only actions against same alleged tortfeasor
6. › Fatal Accidents Act 1934 (Tas), s 6(1)
1. Insurance
2. › Liability insurance
3. › Third party's direct right of action against insurer
4. › Whether pilot was 'the insured' under policy issued to aero club
5. › Meaning of 'insured' in s 51
6. › Insurance Contracts Act 1984 (Cth), ss 48, 51
1. Tort Law
2. › Contribution between tortfeasors
3. › Whether insurer's contractual indemnity obligation constitutes liability to make contribution
4. › Distinction between indemnity under insurance contract and contribution under apportionment legislation
5. › Wrongs Act 1954 (Tas), ss 3(1)(b), 3(2), 3(3)(b), 3(3)(e)
1. Practice and Procedure
2. › Res judicata and estoppel
3. › Consent judgments
4. › What issues are conclusively determined by consent judgment
5. › Onus of establishing defence based on res judicata

Quick Take

The term 'insured' in s 51 of the Insurance Contracts Act 1984 (Cth) refers only to a party to the contract of insurance, not to a person to whom insurance cover extends who is not a party to the contract. A claim by an insured's executors against an insurer for indemnity under an insurance policy pursuant to s 48 of the Insurance Contracts Act is not a claim for 'contribution' within the meaning of the Wrongs Act 1954 (Tas), s 3, and accordingly the provisions of s 3(3) relating to the effect of accords do not apply to relieve the insurer from such liability. The prohibition in s 6(1) of the Fatal Accidents Act 1934 (Tas) against more than one action applies only to actions against the same alleged tortfeasor.