An insurer must pay damages because it failed to prove a driver deliberately crashed into a truck to commit suicide, even though he posted a 'depressing' message on his Facebook page less than an hour before the incident.

The Victorian Appeal Court heard a car driven by James Boot, 19, and a prime mover, driven by Steven Pevitt, collided on the Princes Highway at Mt Moriac, Victoria, soon after 11pm on April 30, 2009. Mr Boot died as a result of his injuries.

Mr Pevitt was employed by Elmore Haulage Pty Ltd. The prime mover was towing a trailer containing a load of live sheep. The prime mover and trailer were extensively damaged.

Elmore Haulage launched proceedings against Australian Associated Motor Insurers Ltd (AAMI), which had insured Mr Boot’s vehicle, to recover damages on the grounds Mr Boot was liable and negligent for the collision. However, AAMI alleged Mr Boot intentionally collided with the truck to commit suicide. The insurer relied on a policy clause that excluded "loss or damage caused intentionally by you (the insured) or a person acting with your express or implied consent".

Mr Boot's friend Caleb Byrt told the court Mr Boot was "a bit flat and tired" on the night of the incident, but nothing suggested he was depressed. Another friend, Anisha Sorabji, said Mr Boots had had "down times" after his grandmother died, but had never indicated he had suicidal thoughts.

The court heard Mr Boot returned home after socialising with his friends and wrote on his Facebook page at 10.41 pm: “James Boot loves everyone forever. And is very sorry for everything:(“.  There was evidence the colon and bracket were a symbol for a sad face.  Soon after, Mr Boot told his mother he was going for a drive. She told the court he appeared normal and nothing indicated he was "unstable".

The principal issues at trial were whether Mr Boot intentionally collided with the truck; if so, whether damage caused by that conduct fell within the policy's exclusion clause; and, if not, whether Elmore Haulage proved it suffered loss and damage.

On March 30, 2012, Victorian County Court Judge John Bowman found AAMI failed to prove the collision was intentional, so Mr Boot's conduct did not fall within the exclusion clause. Judge Bowman awarded Elmore Haulage $165,000 for loss and damages.

AAMI appealed against the decision, but Justice Stephen Kaye, with whom Justices Simon Whelan and Peter Vickery agreed, dismissed the appeal.

Justice Kaye said AAMI's case was "circumstantial".  "Apart from the Facebook entry, there is no evidence which indicated, at all, Mr Boot was contemplating suicide, or that he was in such a frame of mind that he might have been harbouring such thoughts," he said.

"Given the seriousness of the allegation contained within that hypothesis, coupled with the inherent unlikelihood of the occurrence of suicide, I do not consider it is more probable that Mr Boot intentionally caused the collision, than he momentarily, before the collision, either lost attention or fell asleep."

Justice Kaye said the exclusion clause was expressly directed to loss or damage intentionally caused by Mr Boot, not only whether Mr Boot intended the collision, which resulted in loss or damage to the truck. So, even if AAMI established Mr Boot intentionally caused the collision, the insurer had to prove he intended to cause damage to the truck.

"If Mr Boot did intend to cause a collision, [he] would not have intended to cause damage to [Elmore Haulage's] vehicle. Rather, at all relevant times, his sole focus would have been on ending his own life." Justice Kaye dismissed all AAMI's grounds of appeal.

(AAMI Ltd v Elmore Haulage Pty Ltd [2013], VSCA 54, 19/3/2013)

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