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  • Unreported Judgment

Temmerman-Dunn v Maroochy Shire Council

 

[2002] QSC 465

Reported at [2003] 1 Qd R 449

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial division

PROCEEDING:

Civil trial

ORIGINATING COURT:

DELIVERED ON:

26 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25-26 November 2002

JUDGE:

Holmes J

RULING:

That the defendant is not bound by the admission in Exhibit 1

CATCHWORDS:

EVIDENCE – ADMISSIONS AND DECLARATIONS – NATURE AND EXTENT OF ADMISSIONS – OTHER CASES

Civil trial regarding personal injuries sustained by the plaintiff during a work related accident – decision made during course of trial to determine whether liability was in issue – where WorkCover Queensland made an admission of liability to the plaintiff pursuant to s 285 WorkCover Queensland Act 1996 – whether the admission precludes the defendant from denying liability in its defence – whether s 285(4) is simply a means to facilitate pre-trial settlement or whether it was intended to establish a form of irrevocable admission.

WorkCover Queensland Act 1996, s 285

Motor Accident Insurance Act 1994, s 41

Lindsay v Smith [2002] 1 Qd R 610, considered

Till v Nominal Defendant [2000] 2 Qd R 676, applied

 

COUNSEL:

Mr C Newton for the plaintiff

Mr R C Morton for the defendant

SOLICITORS:

Carne Reidy Herd Lawyers for the plaintiff

HBM Lawyers for the defendant

[1] I gave a ruling in the course of this trial, now settled, as to the effect of an admission of liability by WorkCover. Although already formulated, reasons were to be given subsequently so that the evidence could proceed without delay. What follows are those reasons, which I will now have provided to the parties:

[2] The issue requiring determination at this stage of the trial is as to the effect of an admission of liability made by WorkCover Queensland under s. 285 of the WorkCover Queensland Act 1996.  In its amended defence the defendant denies any admission on its behalf or says alternatively that any admission has been withdrawn either by the original defence putting liability in issue or the amended defence in which the admission is specifically withdrawn.  As a further alternative it contends that any binding admission was withdrawn by an agreement between the parties that in consideration of the defendant not taking a point as to whether proper service of the claim and statement of claim had been effected, the plaintiff would accept that liability remained an issue. 

[3] As to the first point, s. 285 makes it abundantly clear in my view that WorkCover has power to negotiate with an employee including the making of admissions of liability and the accepting of offers of settlement;  in short it can do all that is necessary to resolve the proceedings on the employer’s behalf. And specifically Section 306(5) entitles Workcover to conduct any proceedings brought to enforce a claim but also to settle any matter about the claim. In sum, if a binding admission was made by WorkCover in this case it will be binding on the defendant to the same extent.

[4] The real question is as to the effect of s. 285 and the applicability in its construction of decisions of the Court of Appeal in respect of a cognate provisions in the Motor Accident Insurance Act 1994, s. 41.  Section 41(1)(b) like s. 285(4) requires the insurer to give the written notice stating whether liability is admitted or denied.  Section 41(6) provides as follows:

 

(6)An admission of liability by an insurer under this section –

 

(a)is not binding on the insurer on another claim arising out of the same motor vehicle accident;  and

 

(b)is not binding on the insurer at all if it later appears the admission was induced by fraud.

 

[5] The equivalent provision in s. 285(8) is more extensive:

 

(8)An admission of liability by WorkCover under this section –

 

(a)is not binding on WorkCover at all if it is later shown at the trial in the proceeding for damages that the claimant has been relevantly guilty of fraud;  and

 

(b)is not binding on  WorkCover at all if it is later shown that liability was admitted because of misrepresentation by any person;  and

 

(c)is not an admission about the nature and extent of the claimant’s loss or damage or that the claimant has sustained loss or damage, unless it specifically states otherwise;  and

 

(d)does not entitle the claimant to apply for judgment, summary or otherwise, in a court of competent jurisdiction;  and

 

(e)is confined to damages under the claim.

 

[6] In Till v. Nominal Defendant [2000] 2 Qd R 676 the Court of Appeal considered whether an insurer which had made an admission of liability under s. 41(1)(b) was precluded by the Act from denying liability in its defence;  and if not whether in any event it was precluded by the admission from making such a denial.  The Court considered the statement of the objects of the Act in s. 3 which included the ‘speedy resolution of personal injury claims’ and the scheme of the Act which in divisions 2-5 of part 4 contains provisions requiring pre-litigation disclosure and negotiation for the resolution of personal injury claims prior to commencement of litigation.  In particular it considered s. 41 and noted that admission of liability under that section produced two statutory consequences, one being that the insurer must then pay for hospital, medical and pharmaceutical expenses reasonably incurred and the other that it must make available reasonable rehabilitation services.  Denial of liability or admission to the extent of 10 per cent less would, where liability was subsequently established at trial to 80 per cent or more, result in an award of costs in favour of the claimant on a solicitor client basis absent the showing of good reason for another order.

[7] The object of the provisions, the court concluded, was to encourage early resolution by agreement including admissions as to liability where appropriate.  Division 4 which required co-operation between the claimant and the insurer in terms of undergoing examinations and provision of information and division 5 enabling the provision of rehabilitation services were also designed to encourage resolution before the commencement of litigation.  S. 41(6), the court concluded, did no more than re-state the general law to the effect that an admission of liability in respect of one claim would not bind in respect of another and that an admission of liability induced by fraud would never be binding.  The general law position was that an admission of liability would bind only in circumstances of estoppel.  There was no inference to be drawn from s. 41(6) that other than in the circumstances there provided for an admission would otherwise be irrevocable.  The court’s conclusion was that the legislature did not intend to alter the general law.

[8] The second of the Court of Appeal cases considering s. 41, Lindsay v Smith [2002] 1Qd R 610,  does not advance the matter greatly.  It makes it clear that a s. 41 admission may give rise to an estoppel where it is relied on to the detriment of the plaintiff (in that case by not commencing an action within the limitation period) or may give rise to a contract, the elements of which are the plaintiff’s forbearance to sue as consideration for the insurer’s admission of liability and agreement to pay reasonable damages.  In the present case there is no suggestion of any detriment to the plaintiff nor of any consideration provided by her.

[9] Section 285 appears in a similar context in the WorkCover Queensland Act to s. 41 within the Motor Accident Insurance Act.  It is contained in ‘part 5 – pre-court procedures’ the object of which in s. 279 is expressed to be the facilitation of ‘the just and expeditious resolution of the real issues in a claim for damages at minimum of expense’. As in division 3 and 4 of the Motor Accident Insurance Act a notice of claim is to be given.  Thereafter insurer and claimants are to co-operate and attempt to resolve the claim and information must be given.  Just as the Motor Accident Insurance Act does, the WorkCover Act requires rehabilitation to be provided to the claimant where the insurer admits liability (s275A(3)). There is this difference: Costs are dependent on whether there exist offers of settlement, rather than whether there is an admission of liability. Otherwise I do not think that there is any significant difference between the objects or schemes of the two pieces of legislation.

[10] But there is a difference in the wording of s. 285(8) and s. 41(6) on which Mr Newton relies to distinguish Till.  He says that the language of the subsection indicates that admissions made under s. 285 are not limited for the purposes of pre-litigation negotiations but are binding for all purposes.  That is demonstrated by the language of sub-section 8(a) which says that an admission is not binding upon fraud being shown at the trial in the proceeding for damages and (d) which precludes application for judgment on the basis of such an admission. It is difficult to see why subsection (a) exists at all when subs (b) entitles Workcover to escape any binding effect of the admission if it is merely shown to have been made because of misrepresentation; unless perhaps the distinction is that for the purposes of (a) the fraud need not have produced the admission although committed in the context of seeking it.

[11] But subs (d) I think in fact tells against the plaintiff’s argument. The plaintiff wants to rely on the admission as conclusive of liability in this trial so that she need do no more than prove the quantum of her damages. That seems to me in effect to ask for judgment on the admission in whatever amount of damages is ultimately assessed, which is precluded by subs (d). I read subs (d) as an indication rather that an admission under s285(4) is simply a means to facilitate pre-trial settlement, with the further effect that WorkCover accepts by it responsibility for rehabilitation. It may be available as evidence at the trial, but it cannot of itself support judgment on liability; and it follows that it does not foreclose a defence on liability. It may be of course that if there were reliance on the admission resulting in detriment, the defendant would be estopped from denying liability, or alternatively if there were consideration for it that an agreement not to dispute liability might be made out. But otherwise, unless  the admission is maintained in the pleadings or made afresh independently of s285 it cannot support judgment; or, it follows, bind the defendant for the purposes of the trial.

[12] To summarise, I do not think there is anything in s285 which would warrant an implication that it was intended to set up a form of irrevocable admission; and I think to conclude that admissions under the section did bind the defendant at trial would run counter to the purpose of sub-section (d). I rule therefore that the defendant is not bound by the admission in Exhibit 1.

[13] If I am wrong in my construction of the section I should say that I would not regard the letter from the plaintiff’s solicitor of 9 May 2000 as amounting to an agreement to abstain from reliance on the admission.  What that letter indicates in my view is a rejection of the defendant’s proposal that the plaintiff’s statement of claim be amended to abandon reliance on the admission, coupled with an acknowledgement that it was open to the defendant to put liability in issue in its defence.  That statement and the plaintiff’s subsequent conduct in obtaining reports relevant to liability are consistent with the solicitors having taken a view similar to mine as to the effect of Till rather than any agreement with the defendant.

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Editorial Notes

  • Published Case Name:

    Temmerman-Dunn v Maroochy Shire Council

  • Shortened Case Name:

    Temmerman-Dunn v Maroochy Shire Council

  • Reported Citation:

    [2003] 1 Qd R 449

  • MNC:

    [2002] QSC 465

  • Court:

    QSC

  • Judge(s):

    Holmes J

  • Date:

    26 Nov 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment [2003] 1 Qd R 449 26 Nov 2002 -

Appeal Status

No Status