Court rules on residency debate

The Queensland Supreme Court has granted the son of a man who died following a house fire the right to sue his father’s insurer.

Guy Murray, who rescued his father, Raymond John Murray, from the 7 March 2019 fire, made a claim under the Personal Injuries Proceedings Act 2002 (Qld) against his father’s house and contents insurer AAMI for personal injuries.

The policy covered “legal liability to pay compensation for death or bodily injury to other people, or loss or damage to their property, resulting from an incident which happens during the period of insurance”.

However, the policy excluded anyone ordinarily resident at the insured property. When the fire occurred, Guy Murray was residing in his father’s home.

Arthur Lesley Douglas Crummer, the executor of Mr Murray’s will, sought the court’s advice on whether he could to pursue AAMI on Guy Murray’s behalf.

Raymond Murray died on 27 March 2019 from injuries sustained in the fire at his Noosaville home.

A news report at the time said Mr Murray, 78, a long-term Noosaville resident, known as Bones, had been taken to hospital with burns to his legs.

Justice Jean Dalton said police investigated and found the fire was not suspicious and had occurred after Mr Murray spilt petrol in the garage and accidentally ignited it.

Mr Murray was married in the 1960s and he and his wife’s only child, Guy, was born on 4 April 1968. After the couple divorced, his former wife took Guy to the United Kingdom and never returned to Australia.

Justice Dalton said Guy lived in the UK and did not visit his father until shortly before the fire and Mr Murray’s subsequent death.

Guy arrived to visit his father in January 2019. Justice Dalton said Ray Murray was “living alone and concerns had been raised about his health ... [he] was apparently suffering from some sort of dementia or other illness which was affecting his mind”.

The policy, which would pay up to $20 million for legal liability, listed exclusions, including that it did not cover “anyone who usually lives at the insured address”.

AMMI declined to indemnify the estate for Guy Murray’s personal injuries claim, arguing he was ordinarily resident at his father’s address when the fire occurred.

Justice Dalton said material before her showed Guy Murray was a UK citizen, travelled on a UK passport, and did not live in Australia between 1972 and January 2019.

“Guy Murray’s intention was to stay in Australia only long enough to attend to arrangements for his father’s ongoing care and then return either to the UK, or South Africa, where he anticipated finding work, in April 2019. He had made no application for Australian residence,” Justice Dalton said.

However, the executor’s position was “slightly complicated” by the fact Guy Murray planned not to return to his UK residence when he had finished helping his father, but to travel to and work in South Africa.

“In rejecting the estate’s claim, the insurer relied on the notion Guy Murray had given up his residence in the UK, had not taken up any new residence, say in South Africa, and therefore must have been ‘ordinarily living’ with his father, as he had no other residence,” Justice Dalton said.

But she found that reasoning was not sound. “Just as a person may have more than one residence, it is possible a person may have no residence. It seems to me Guy Murray fell into this class.”

She said Guy Murray intended to abandon his UK residence and reside in South Africa. “He had achieved the former part of his plan, and was yet to achieve the latter. In the meantime, he was visiting his father in Australia. At no time was his intention to reside or ‘ordinarily live’ in Australia, or with his father.”

Justice Dalton said Guy Murray was having a holiday, or paying a visit, before resuming a residence. “It makes no difference that the purpose of the visit was to attend to his father’s declining health. His intention was to stay with his father for a limited duration and a limited purpose.”

Justice Dalton concluded it was in the interests of the estate to challenge the insurer’s rejection of the claim.

But she said while launching litigation against AMMI was justified, “I think relief ought to be granted in a more nuanced way. It is to be hoped that the matter of indemnity could be resolved without instituting legal proceedings in the first instance”.

Re Murray (deceased) [2020] QSC 155 judgement 12 June 2020