QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130

ON 26 APRIL 2005, the NSW Court of Appeal delivered QBE Insurance (Australia) Ltd v Smith by his next friend Avard & Anor [2005] NSWCA 130 (26 April 2005).

The plaintiff was a nine year old boy who had been travelling as a passenger in a truck driven by his father. They had been crabbing on a boat borrowed from a friend and were towing the boat back to it’s owner. The plaintiff’s father stopped the truck across the road from the boat owner’s premises and directed the plaintiff to cross the road and open the gate. The plaintiff was injured when he was struck by another vehicle whilst crossing the road.

The father was held to be at fault in pausing and arranging for the gate to be opened and this was compensable under the Motor Accidents Compensation Act 1999 as it occurred in the use or operation of a motor vehicle.