the actual driving is not the 'act' as defined under the section. The quotation marks around the word 'act' could be a reference to the full definition of 'act' which includes an omission. The High Court's description of the relevant omission immediately afterwards suggests that this is the conduct which they believe meets the definition. The High Court also commented on Johnson. Whilst it did not deal with Chesterman JA's "within the power of the omitter" reasoning, the High Court arguably dealt with this indirectly in saying40: … The operation of the aircraft in breach of air safety regulations was an 'act' which occurred after the contract was entered into. CONCLUSION In circumstances where the High Court has arguably not considered Chesterman JA's requirement that an omission must have been within the power of the 'omitter' to have been done, the writers consider that there is presently an inconsistency at intermediate court of appeal level between the jurisdictions of Queensland and Western Australia. In the writers' view, there is probably enough in what the High Court said about acts and omissions to infer that they would have agreed with the views expressed by McLure P rather than Chesterman JA. However, without words to that effect being expressed, this is merely our opinion. Prior history shows that attempts to limit the scope and operation of s54 are not often successful and we have considered this relevant in forming our opinion. In FAI General Insurance Company Limited v Australia Hospital Care Pty Ltd41, Kirby J delivered a separate judgment in which His Honour had agreed with the conclusions of the majority (McHugh, Gummow and Hayne JJ). In that judgment, Kirby J identified and rejected: Various judicial attempts, grounded in the language of s54(1) of the Act … offered to confine the section so that the acts (and omissions) that are excused are kept within manageable bounds. The first was Handley JA's view in Greentree v FAI General Insurance Co Ltd42 that an omission required a failure to perform some duty or obligation by the insured or someone else for the benefit of the insured. Kirby J rejected that view as being inconsistent with Antico, stating that no duty or obligation is posited, simply a failure to act. The second was Spigelman CJ's 14 | Brief August 2015
approach in Greentree to distinguish an 'omission' as defined by s54 from a so called 'non-event'. Spigelman CJ's view was that a 'non-event' was 'conduct wholly external to the policy'43. Kirby J considered that: "[i] t seems unlikely that this differentiation would provide a sound, universal touchstone for the correct operation of s54."44 The majority also rejected this approach, stating45: The difficulty with referring to events as "wholly external to the policy" is that no question about the effect of a contract of insurance can ever be asked in isolation from external facts and circumstances. The question is inevitably about the application of the contract in light of certain real or hypothesised facts and circumstances. Those facts and circumstances will always be wholly 'external' to the policy. Lastly, there was Hodgson CJ's view in Permanent Trustee Australia v FAI General Insurance Co Ltd46, where His Honour drew a distinction between 'someone's omission to do something' and a relevant event that "did not happen"47. Kirby J deferred to the reasons of the majority. The majority rejected Hodgson CJ's reasoning48 as follows49: Criticism can also be made of the formulation of Hodgson CJ in Eq in Permanent Trustee v FAI, who said that where there is no claim by a third party during the period of cover under a claims made policy "the gravamen of the refusal [by the insurer to meet a later claim on it] is not that someone omitted to do something, but rather that something did not happen" (citation omitted). That distinction is readily applied in cases where, for example, there is no damage by flood to insured premises during the period of cover, but such damage occurs shortly thereafter. The absence of a flood during the period of cover clearly is not an omission; it is much more naturally described as a 'non‑event'. Importantly, however, a flood can be fully described without reference to any act or omission by any person. The distinction drawn by Hodgson CJ in Eq cannot readily be applied when the circumstance or event said to be an omission cannot adequately be described without reference to a person (such as, for example, the failure of a third party to make a claim against an insured during a policy period). By what criteria is a person's failure to take some step to be categorised as a 'non‑event' rather than an 'omission'?.
Perhaps if Chesterman JA's requirement, that an omission must have been within the power of the 'omitter' to have been done, had been put before the High Court, it would find itself on the list of failed judicial attempts to confine 'omissions'. On a final note, the 'state of affairs' argument reared its head recently, though in a different form, in Inglis v Sweeney50. In that case, the state of 'living with someone' was found to be an 'act' for the purposes of s54. The writers are informed that this decision is on appeal and anyone who found this article interesting should keep an eye out for the result. NOTES 1.
1984 (Cth).
2.
[2010] QCA 282.
3.
Johnson, above n 1, [70].
4.
[2012] WASC 53.
5.
Highway Hauliers, above n 3, [57].
6.
Triple C Furniture and Electrical Pty Ltd v Rural & General Insurance Limited & Anor [2011] HCATrans 125.
7.
Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, [39].
8.
Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.
9.
[2010] QCA 282.
10.
Regulation 5.81 of the Civil Aviation Regulations 1998 made under the Civil Aviation Act 1998 (Cth).
11.
Johnson, above, [64].
12.
[70].
13.
Emphasis added.
14.
[72].
15.
[71].
16.
[2011] HCATrans 125.
17.
Triple C Furniture, above n 5, [355].
18.
Triple C Furniture, above, [495].
19.
[2012] WASC 53.
20.
Highway Hauliers, above,[57] and [85].
21.
Highway Hauliers, above, [85].
22.
Highway Hauliers, above, [86] and [87].
23.
[77].
24.
[78].
25.
[86].
26.
Highway Hauliers, above, [88].
27.
[86].
28.
[2013] WASCA 115.
29.
Matthew Maxwell, above, [39], [80] and following.
30.
[1997] HCA 34; (1997) 188 CLR 652, 675.
31.
[81].
32.
Matthew Maxwell, above, [82].
33.
Matthew Maxwell, above, [84].
34.
[83].
35.
Emphasis added.
36.
Matthew Maxwell, above, [121].
37.
Matthew Maxwell, above, [145].
38.
[2014] HCA 33.
39.
[26].
40.
[28].
41.
FAI General Insurance Company Limited v Australia Hospital Care Pty Ltd (2001) 204 CLR 641; [2001] HCA 38.
42.
(1998) 44 NSWLR 706.
43.
Greentree, above, 710
44.
FAI, above, [80].
45.
[37].
46.
(1998) 44 NSWLR 186.
47.
Permanent Trustee Australia v FAI, above, 227.
48.
FAI, above n 22, [39].
49.
[38].
50.
[2015] WADC 34.