- Unreported Judgment
- Appeal Determined (QCA)
 QCA 52
SUPREME COURT OF QUEENSLAND
Johnson v Hill & Ors  QCA 52
DENNIS NORMAN JOHNSON
Appeal No 9152 of 2001
DC No 4836 of 2000
Court of Appeal
Application for leave s 118 DCA (Civil)
District Court at Brisbane
1 March 2002
1 February 2002
McMurdo P, Davies JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1.Application for leave to appeal granted
INSURANCE - THIRD PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED - QUEENSLAND - GENERALLY - where plaintiff sued respondents and not the Nominal Defendant - where action against Nominal Defendant is time barred - whether the Nominal Defendant would, if sued, have been liable in respect of the same damage for which the respondents may become liable - whether s 37 of the Motor Accident Insurance Act 1994 affects the validity of the title to enforce the liability
Law Reform Act 1995 (Qld), s 6(c)
Motor Accident Insurance Act 1994 (Qld), s 37(3), s 37(4), s 39(8), s 52A
WorkCover Queensland Act 1996 (Qld), s 252(2), s 253(1),
Bonser v Melnacis  1 QdR 1, distinguished
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213, considered
Brannigan v Nominal Defendant  2 QdR 116, considered
Harding v Lithgow Corporation (1937) 57 CLR 186, considered
Tanks v WorkCover Queensland  QCA 103; Appeal No 9435 of 2000, 20 March 2001, considered
R J Douglas SC with K N Wilson for the applicant
P A Keane QC with P A Hastie for the respondents
O'Shea Corser & Wadley for the applicant
Eardley Motteram for the respondents
- McMURDO P: I agree with the reasons of Davies JA in which the issues, facts and relevant legislation are set out. I make these additional brief comments only by way of emphasis.
- The plaintiff was injured in a motor vehicle accident involving the defendant's vehicle and another unknown vehicle. The plaintiff's claim in negligence for damages for injury arose against the defendant and the driver of the unknown vehicle at the time of the accident. Under the Motor Accident Insurance Act 1994 (Qld), the Nominal Defendant is liable for personal injury caused by the unknown motor vehicle as if it were the insurer of that vehicle.
- The plaintiff did not give notice to the Nominal Defendant under s 37(2) or (3) Motor Accident Insurance Act 1994 (Qld) so that her action against the Nominal Defendant is barred. The Motor Accident Insurance Act 1994 (Qld) does not specify that these notice provisions apply to bar a claim for contribution under the Law Reform Act 1995 (Qld).
- Whilst the plaintiff is now barred from pursuing her claim against the Nominal Defendant because of her non-compliance with the notice provisions, until those notice periods expired the Nominal Defendant, together with the defendant's insurer, Suncorp, were potentially "liable on a motor vehicle accident claim" under s 52A(1)(a) Motor Accident Insurance Act 1994 (Qld). Under sub-s (2) of that section, s 6(c) Law Reform Act 1995 (Qld) applies as if the Nominal Defendant were a tortfeasor. That has the result that where, as here, it is alleged the plaintiff has suffered personal injury caused by the defendant's negligence, the defendant may recover contribution from the Nominal Defendant because the Nominal Defendant was, until the expiry of the notice periods in s 37 Motor Accident Insurance Act 1994 (Qld), a "tortfeasor who … if sued would have been liable in respect of the same damage".
- This conclusion is strongly supported by the comments of Starke J in Harding v Lithgow Corporation, Barwick CJ in Brambles Constructions Pty Ltd v Helmers and the additional comments in that case of Windeyer J:
"The description, a tortfeasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent court, by proper process, at a proper time and on evidence properly presented – that is anyone whose liability as a tortfeasor could have been ascertained in an action. I see no reason for limiting the denotation of the description by assuming that the words 'if sued' refer to some particular point of time. It is enough that there was a time, before the liability of the defendant tortfeasor was actually ascertained, at which the plaintiff (the victim of the tort) could have successfully brought an action against some other person (the third party), either independently of or jointly with the defendant."
- For the reasons given by Davies JA, ss 252(2) and 253(1) WorkCover Queensland Act 1996 (Qld) and the cases concerning those sections are of no assistance in interpreting these provisions of the Motor Accident Insurance Act 1994 (Qld). The learned District Court judge rightly granted leave to the defendant to join the Nominal Defendant as a third party.
- I agree with Davies JA that the application for leave to appeal should be granted but the appeal dismissed with costs.
- DAVIES JA: This is an application by the Nominal Defendant for leave to appeal against a judgment of the District Court given on 13 September 2001 granting leave to the respondents, effectively Suncorp Metway Insurance Limited, to file a third party notice and statement of claim directed to the Nominal Defendant. The central question in the application in the District Court and in this appeal is whether, within the meaning of s 6(c) of the Law Reform Act 1995, as applied by s 52A of the Motor Accident Insurance Act 1994, the Nominal Defendant would, if sued, have been liable in respect of the same damage for which Suncorp may become liable to the plaintiff in the action against it by Dennis Norman Johnson arising out of a motor vehicle accident which occurred on 7 February 1998.
- On that date a vehicle insured by Suncorp, driven by the other respondent, ran into the back of the plaintiff's vehicle injuring the plaintiff. The collision occurred after the plaintiff had braked suddenly to avoid another vehicle travelling into its path. The other vehicle left the scene and was not identified but the plaintiff sued only Suncorp and not the Nominal Defendant. Hence this application and appeal. Mr R J Douglas SC who with Mr R Wilson appears for the Nominal Defendant, submits that there has never been a time when the plaintiff had a title to sue the Nominal Defendant and that the Nominal Defendant is therefore not a tortfeasor who would if sued have been liable in respect of the plaintiff's injuries. In support of that submission he relies on the application of the statutory provisions, principally those in the Motor Accident Insurance Act, to the facts of this case.
- The Motor Accident Insurance Act was amended on 1 October 2000. However it is common ground between the parties that it is the Act in the form in which it was enacted prior to that date which is relevant for the purposes of this appeal. That is because, it is submitted on both sides, the phrase "would if sued have been liable in respect of the same damage" in s 6(c) of the Law Reform Act 1995 means would if sued on or immediately after 7 February 1998. That may, for present purposes, be accepted; in my opinion it does not, in the end, matter which version of the relevant provisions applies.
- Section 37(3) of the Motor Accident Insurance Act provided that, before bringing an action in a court for damages for personal injury against the Nominal Defendant arising out of a motor vehicle accident, a claimant must give written notice of the claim to the Nominal Defendant within three months after the motor vehicle accident. The plaintiff had not given any such notice within that period. Subsection (4) then provided that if the notice is not given within that time the obligation to give it continues and the notice when given must contain an explanation of the delay but if it is not given within nine months after the motor vehicle accident the claim against the Nominal Defendant is barred. The plaintiff gave written notice, but not including an explanation for the delay within the period of nine months. Consequently pursuant to s 37(4) his claim against the Nominal Defendant was barred. And by s 39(8) if a claim against the Nominal Defendant is barred because, as in this case, it relates to personal injury caused by, through or in connection with an unidentified motor vehicle and the claimant failed to give notice of claim within nine months after the accident, the Nominal Defendant cannot waive compliance with the requirement to give that notice nor can the court give leave to bring a proceeding in a court despite the non-compliance.
- It follows from the application of these provisions, as Suncorp appears to concede, that the plaintiff has never given the required notice before bringing an action against the Nominal Defendant and could not now do so; and that, consequently, there never was a point in time at which, had the plaintiff sued the Nominal Defendant, his actions would not have been struck out and now there never can be a point in time at which any such action would not be struck out. For this reason, the Nominal Defendant submits, there never was and never will be a point in time at which the Nominal Defendant could be said to be a person "who is, or would if sued have been, liable" in respect of damages for the plaintiff's injuries. For the purpose of this submission the Nominal Defendant also seeks to draw an analogy between the relevant provisions here and those of the WorkCover Queensland Act 1996 considered in Bonser v Melnacis and Tanks v WorkCover Queensland.
- The starting point for consideration of this question is s 52A of the Motor Accident Insurance Act and s 6(c) of the Law Reform Act. Subsection (1) of the first of those sections relevantly provides:
"(1)This section applies if -
(a)the Nominal Defendant is 1 of 2 or more insurers liable on a motor vehicle accident claim …
It was agreed by the parties to this appeal, correctly it seems to me, that "liable" in that provision means "who is liable (in the case in which the Nominal Defendant is seeking to recover contribution) or who would if sued have been liable (if another insurer is seeking to recover contribution against the Nominal Defendant)".
- Subsection (2) of that section then provides:
"For the recovery of contribution by or from the Nominal Defendant, the Law Reform Act 1995, part 3, division 2 applies as if the Nominal Defendant were a tortfeasor."
- Section 6 of the latter Act then relevantly provides:
"Where damage is suffered by any person as a result of a tort (whether a crime or not) -
(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought."
- The effect of s 52A(2) is to apply s 6(c) to a claim for contribution against the Nominal Defendant as if the Nominal Defendant were a tortfeasor within the meaning of s 6(c). The question then is whether that deemed tortfeasor is a person who would, if sued, have been liable. It is common ground that "liable" in s 6(c) means "come under an obligation to pay money in respect of the same damage" and a tortfeasor who would, if sued, have been liable is a tortfeasor "who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act." So the question here is whether, if the Nominal Defendant had been sued by the plaintiff, it would have been found, as the deemed tortfeasor in respect of the unidentified motor vehicle, to have caused or contributed to the same damage by a tortious act.
- Putting the question in that way does not require, as a condition precedent to a claim for contribution against the Nominal Defendant, compliance or capacity to comply with s 37. It assumes a suit and requires only that, if sued, the Nominal Defendant would have been found to have caused or contributed to the same damage by a tortious act; that is, to have substantive liability for the tort. That, it seems to me, is the meaning of s 6(c).
- That this is the proper construction of s 6(c) appears clear enough from the judgments of Barwick CJ and Windeyer J in Brambles Constructions Pty Ltd v Helmers. Barwick CJ, with whose reasons McTiernan J agreed, said:
"The Supreme Court of New South Wales has decided, and in my respectful opinion correctly, that the claim of the tort-feasor for contribution is a cause of action apart from and independent of the cause of action which the injured party has or would have had against the tort-feasor from whom contribution is sought and that the failure of the injured party to take formal steps such as the giving of notice of action to the tort-feasor from whom contribution is sought is an irrelevant circumstance in the action between the one tort-feasor and the other tort-feasor for contribution: Nickels v Parks."
Similarly Windeyer J said:
"The description, a tort-feasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent court, by proper process, at a proper time and on evidence properly presented - that is anyone whose liability as a tort-feasor could have been ascertained in an action."
- That being the correct construction of s 6(c), it must also be its correct construction as applied by s 52A(2) of the Motor Accident Insurance Act. There is nothing in that Act which would require a contrary construction. In particular, there is nothing in that Act which would make the validity of a right to claim contribution against the Nominal Defendant under s 52A(2) dependant on compliance by the plaintiff with the notice requirements of s 37.
- The result is that the notice requirements of s 37 can be relevant to the question whether the Nominal Defendant, if sued, would have been liable only if they affect the substantive liability of the Nominal Defendant for the tort; that is if they are an element of the cause of action against it so that, unless they are complied with, no such cause of action comes into existence.
- There is an important distinction between, on the one hand, in the words of Sir Owen Dixon in Harding v Lithgow Corporation, "the validity of the title to enforce the liability" and, on the other, the "mode of enforcement of it, or the fulfilment of a preliminary procedural condition". The "title to enforce the liability" may be equated with "cause of action"; that is the way in which his Honour used the phrase in Harding. And in the same case Sir John Latham, speaking of a legislative provision of the latter kind, said that authorities to which he referred showed:
"… that where a condition precedent to bringing an action (such as notice of action) has not been satisfied and the case comes to trial, the plaintiff necessarily fails. But, in my opinion, they do not show that a person can be said not to be 'entitled to maintain' an action unless he has taken all the necessary procedural steps at the time when the question arises. If, in the cases cited, the question had been asked, before any procedural steps had been taken, whether the plaintiff was entitled to maintain an action, the action would have been in the affirmative, even though a failure to give the necessary notice might ultimately have led to the right of action being lost."
- In Bonser this Court held that provisions of the WorkCover Queensland Act affect the validity of the title to enforce the liability, at least so far as they relate to rights to contribution. It held that, for the purposes of considering whether a person, other than a worker's employer, sued by the worker for damages for negligence for personal injury, could recover contribution from the employer, the combined effect of the scheme introduced by the WorkCover Queensland Act effectively abolishes ("destroys") any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps. It is plain that by "such a right" the Court meant, for this purpose, a right of action for damages for negligence for personal injury; in other words, a cause of action. That is clear from the Court's earlier identification of the question before it as "whether the relevant WorkCover Act provisions are of a …. kind that destroys the plaintiff's right of action against the employer" and their reluctant conclusion to follow two Victorian decisions. Their Honours said in respect of them:
"If the Victorian decisions are correct, it is difficult to think that the language of the WorkCover Act is any less destructive of a plaintiff's cause of action than the words of the Transport Accident Act (Vic). For our part however, with respect, we find the reasoning in these decisions less than compelling. Were the matter free from recent authority such as these decisions and the line of authority which now proceeds from Commonwealth of Australia v Flaviano concerning the Comcare Act, we should have been inclined to hold that an injured worker obtains a right of action when injured through the fault of the employer and that only the remedy is precluded unless and until various steps are taken."
However they held otherwise as they felt constrained to do.
- In Tanks this Court was not asked to reconsider the correctness of Bonser. On the contrary both parties accepted it as correct. However as this Court demonstrated in Tanks, the proposition that the provisions of the WorkCover Queensland Act abolish the common law cause of action of a worker against his employer for negligence and substitute a cause of action which comes into existence only upon compliance with prescribed steps, is not one which is correct for all purposes. It is not, for example, correct for the purpose of the application of the Limitation of Actions Act.
- More importantly for present purposes, the provisions which led this Court to its decision in Bonser are not truly analogous with those of the Motor Accident Insurance Act. In the first place s 253(1) of the WorkCover Queensland Act speaks in terms of an "entitlement to seek damages", a phrase which bears a striking similarity to Sir Owen Dixon's phrase "title to enforce the liability", whereas s 37(1) of the Motor Accident Insurance Act requires merely that notice be given "before bringing an action" and s 39(5) provides merely that "A claimant may bring a proceeding in a court for damages … only if" notice has been given. And secondly s 252(2) of the WorkCover Queensland Act provides that all of the provisions of Ch 5 of the Act, part 2 of which contains s 253, described as "entitlement conditions", are provisions of substantive law. Although, as pointed out in Tanks, s 252(2) was no doubt inserted to resolve difficulties arising in conflictual situations, there is nothing in the Act which would restrict its operation to such situations and this Court plainly construed it in Bonser as having a general operation in that Act, at least except to the extent to which the Act indicated a contrary intention, as this Court later held it did with respect to limitation of actions. There is no provision in the Motor Accident Insurance Act similar to s 252(2).
- In my opinion s 37 is a provision with respect to the mode of enforcement of the cause of action or to the fulfilment of a preliminary procedural condition rather than to the validity of the title to enforce it. In the first place, as already mentioned, in sub-section (4) (now sub-section (3)) it used the phrase "the claim … is barred", as does s 39(8), a phrase which is more appropriate to enforcement of a right rather than its existence. Secondly s 39(8) specifically prevents waiver by the Nominal Defendant of compliance with the requirement to give notice within nine months of the motor vehicle accident, a provision which would be unnecessary if the giving of the notice was a condition precedent to the existence of a cause of action rather than its enforcement.
- There is nothing said by this Court in Brannigan v Nominal Defendant which, in my opinion, is inconsistent with this construction. The critical ultimate issue in that case was described by the Chief Justice as -
"… whether, even though it did not contain the explanation which the statute prescribed be included, this notice given in purported compliance with s 37 was nevertheless sufficient for the purposes of the section."
And McPherson JA described the central question in the case, more specifically, as -
"… what is comprehended by 'notice of the claim' in the extract just quoted from s 37(4). Does it refer only to notice of the claim narrowly confined to that specified in s 37(1); or does it refer more broadly to notice of the claim as expanded by s 37(4) to include 'the explanation of the delay'; which is required by that subsection to be contained in it once the period of three months has expired?"
By answering the Chief Justice's question in the negative because it preferred the second of the constructions posed by McPherson JA this Court did not find it necessary to consider whether s 37 went to the existence or merely the enforcement of the cause of action. McPherson JA adverted to the distinction between the two remarking merely that, because the plaintiff's only claim to recovery from the Nominal Defendant is essentially a product of the statutory enactment "The conditions of its existence or enforcement may therefore be altered, restricted or removed by statute without invading or impinging upon presumptions about legislative intent, or the absence of it, that are more readily available in the case of a right recognised at common law." But he did not say, and it was unnecessary in that case to decide, whether the conditions of the existence of the plaintiff's claim or merely of its enforcement had been altered, restricted or removed by s 37.
- It follows, in my opinion, that the learned District Court judge was correct in granting leave to file a third party notice and statement of claim directed to the Nominal Defendant.
- Application for leave to appeal granted.
- Appeal dismissed with costs.
- DOUGLAS J: I have read the reasons of Davies JA and agree that the application for leave to appeal should be granted, and the appeal be dismissed with costs.
 Motor Accident Insurance Act 1994 (Qld), s 33.
 Ibid, s 37(3).
 Law Reform Act 1995 (Qld), s 6(c).
 (1937) 57 CLR 186, 194
 (1966) 114 CLR 213, 218.
 At 221.
Young v Keong  2 QdR 335. See also s 39(5).
 1 QdR 1.
 QCA 103; Appeal No 9435 of 2000, 20 March 2001.
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 219.
See fn 10.
At 218. The reference to Nickels v Parks, which decides this point, is (1948) 49 SR (NSW) 124.
(1937) 57 CLR 186 at 195.
See Austral Pacific Group Limited (in liquidation) v Air Services Australia (2000) 203 CLR 136 at , , .
See fn 14 at 193.
See for example at .
 2 QdR 116.
- Published Case Name:
Johnson v Hill & Ors
- Shortened Case Name:
Johnson v Hill
- Reported Citation:
 QCA 52
McMurdo P, Davies JA, Douglas J
01 Mar 2002
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 205||13 Sep 2001||Application for leave to file a third party notice and statement of claim directed to the Nominal Defendant granted: Shanahan DCJ.|
|Appeal Determined (QCA)|| QCA 52||01 Mar 2002||Application by Nominal Defendant for leave to appeal against judgment of District Court: McMurdo P, Davies JA and Douglas J.|