- Unreported Judgment
SUPREME COURT OF QUEENSLAND
27 February 2004
13 February 2004
INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – UNINSURED VEHICLES – QUEENSLAND – application of Motor Accident Insurance Act 1994 (Qld) – where plaintiff injured by an industrial crane – where uncertainty as to whether accident occurred on a road
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – whether question of whether accident occurred on a road can be determined at a preliminary trial
K T Magee for the first defendant/applicant
J B Rolls for the plaintiff/respondent
K N Wilson SC for the second defendant/respondent
Damien Bourke & Associates for the first defendant/applicant
Carter Capner for the plaintiff/respondent
Hunt & Hunt for the second defendant/respondent
 By a claim filed 1 October 2003 the plaintiff commenced proceedings against B & L Steel Fabrications Pty Ltd and the Nominal Defendant ‘for damages for negligence … occasioning personal injury.’ Relevantly the statement of claim alleged:
‘2.At all material times:
(a)The first defendant was a company …
(b)The second defendant was a body corporate incorporated … under the provisions of the Motor Accidents Insurance Act … (“the Act”)
(c)The plaintiff was employed by the first defendants as a labourer.
(d)The first defendant was the owner of an eight tonne … mobile crane.
(e)The incident referred to in paragraph 6 … occurred on a road as that term is defined under the Act.
(f)There is not in existence, with respect to the said claim, a policy of insurance issued under … the Act.
(g)As the … crane was not insured, the second defendant is … the insurer, under the Act.
6.At about 3.00 pm on about 14 June 2000 at Duntroon Street, Brendale …
(a)The plaintiff was in the course of his employment acting as a dogman for … the driver of the … crane.
(b)The plaintiff and the (driver) were required to collect … a quantity of steel … and take (it) to the main workshop …
(c)The plaintiff and the (driver) collected the … steel … and were conveying it to the workshop … with the plaintiff walking to the right of the load steadying it.
(d)As the crane travelled onto a guttering dip coming onto the driveway of (the workshop) the wheel of the crane struck the plaintiff knocking him to the ground …
8.The incident referred to in paragraph 6 … was caused by the negligence of the defendant. Particulars …’
 On 20 October a defence was filed by Messrs Hunt & Hunt Solicitors for both defendants who were described in the pleading as ‘joint defendants’. The defence admitted inter alia the whole of paragraphs 2 and 8 of the statement of claim. The defence took issue with some parts of paragraph 6(c) and (d) of the statement of claim but, given the admissions as to paragraphs 2 and 8 the quibble appears irrelevant. The defence did not allege contributory negligence against the plaintiff.
 On 13 November Messrs Damien Bourke & Associates filed a defence on behalf of the first defendant only. Relevantly this defence denies paragraph 2(e) of the statement of claim ‘because the crane struck the plaintiff at the first defendant’s property … and did not occur on a road as that term is defined in the … Act.’ For the same reason the first defendant denied paragraph 2(g) of the statement of claim. The first defendant also took issue with paragraph 6(d) of the statement of claim. It asserts that the plaintiff was struck by the crane ‘wholly within the first defendant’s property …’. The defence denies negligence and sets up a case of contributory negligence against the plaintiff.
 The conduct of the action is beset with obvious difficulty. The first defendant is represented by two different firms of solicitors who have filed inconsistent defences. By an application dated 16 December 2003 the first defendant, by its solicitors Messrs Damien Bourke & Associates, sought orders that the defence of 20 October 2003 be struck out and that Messrs Hunt & Hunt be restrained from acting on behalf of the first defendant. As well it sought an order that it have leave to join WorkCover Queensland as a third party on the basis, no doubt, that that insurer should indemnify the first defendant in respect of the plaintiff’s claim.
 The application is opposed by the Nominal Defendant and the plaintiff. There is no cross-application to strike out the first defendant’s defence of 13 November but such an order is sought and must surely follow if the application fails.
 A brief description of the circumstances leading up to the plaintiff’s injury appear in a motor accident notice of claim given pursuant to s 37 of the Act. According to the plaintiff:
‘Colin had driven the mobile crane over the road (Duntroon Street). I was walking beside the load, holding on to it. As we approached the work shed there are power lines so Colin had to lower the boom and I had to walk at the back of the load to the left. As I was doing that the wheel gripped my right boot and I was on the ground. Colin did not see me and kept driving. At the time of the accident the crane was partially on Duntroon Street, possibly.’
A diagram which accompanied the statement shows that the front portion of the crane had crossed the boundary line between the first defendant’s property and the roadway, while the rear portion was still on the roadway. The plaintiff was injured while walking at the front of the crane, in the first defendant’s property.
 Another diagram which accompanied a later, slightly revised notice of claim indicates that the whole of the crane may have left the carriageway of Duntroon Street though the rear portion of it remained on the footpath adjacent to the first defendant’s premises. At the time of the accident the Act defined “road” to include a footpath. The inclusion was omitted in later issues of the Act but there is no doubt that the footpath was part of the roadway: Davies v Stephens (1836) 173 ER 251; Bailey v Jamieson (1876) 1 CPD 329 at 332: City of Keilor v O’Donohue (1971) 126 CLR 353 at 363; Brandon v Barnes  1 WLR 1505 at 1514 and Aorangi v Brambles Australia Ltd & Ors  QCA 200.
 On 8 November 2002 Messrs Damien Bourke & Associates wrote to Messrs Hunt & Hunt:
‘Our preliminary investigation and the instructions that we have received from our client indicate that liability in relation to the claim made by (the plaintiff) … was incorrectly admitted by the nominal defendant …
Our client instructs that at the time of the accident … the crane was within the confines of our client’s premises … The diagram of the accident scene contained on … the notice of claim … is inaccurate. At the time of the accident, the crane was within the boundaries of our client’s properties and the crane did not protrude onto the footpath nor Duntroon Street. … in the premises it is our view that the Motor Accident Insurance Act does not apply and accordingly the nominal defendant has admitted to liability … where there was no obligation to do so … It is noted that you chose to admit liability … without first giving our client a reasonable opportunity to put forward its position …’
On 17 January 2003 Messrs Hunt & Hunt replied:
‘Your facsimile of 8 November 2002 contains various legal and factual issues with which our client does not agree.
After our client has settled (the plaintiff’s) claim, our client will take recovery action against your client.’
 Before turning to the submissions it is necessary to set out some of the provisions of the Act. A ‘motor vehicle accident’ means ‘an incident from which a liability for personal injury arises that is covered by insurance under the statutory insurance scheme.’ That scheme is the one established by the Act. An ‘uninsured motor vehicle’ is one ‘for which there is not a CTP insurance policy in force.’
Section 5 provides:
‘(1)This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –
(a)is the result of –
(i)the driving of the motor vehicle; or
(ii)a collision … with the motor vehicle; or
(iii)the motor vehicle running out of control; or
(iv)a defect to the motor vehicle causing loss of control …; and
(b)is caused … by a wrongful act or omission … by a person other than the injured person.
(2)For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.
(3)However, this Act does not apply to personal injury caused by, through or in connection with –
(a)…[an] industrial crane …
unless the motor vehicle accident … happens on a road.’
By s 31 the nominal defendant is the insurer of uninsured motor vehicles as defined in respect of which the owner has not effected a CTP policy of insurance with a licensed insurer.
 The provisions of division 3 of Part 4 of the Act set out the procedures which must be followed if a claim was to be made for personal injuries arising out of a motor vehicle accident. Section 37 requires written notice to be given to the insurer of the motor vehicle by, through or in connection with which the claimant suffered personal injury. Section 39 obliges the insurer on whom notice of the claim is served to respond to it in designated ways. Section 41 requires the insurer to investigate the circumstances of the accident and attempt to resolve the claim by a genuine offer of compromise. Section 44 is important. It provides:
‘(1)If a motor vehicle accident claim is made against an insured person, the insurer –
(a)must undertake the conduct and control of negotiations and legal proceedings related to the claim; and
(b)may compromise or settle the claim or legal proceedings … and act for the insured person in any other way in relation to the claim.
(2)The insured person must sign any document necessary to give effect to this section …
(3)Nothing said or done by an insurer in connection with a motor vehicle accident claim, or legal proceedings related to a … claim, is an admission of liability in, or otherwise prejudices or affects, another claim or proceedings arising out of the same circumstances.’
Section 52 provides that an action for damages for personal injury arising out of a motor vehicle accident must be brought against the insured person and the insurer as joint defendants but judgment (with an irrelevant exception found in s 55) must only be given against the insurer. Moreover service on the insured person is effected by serving the insurer.
 Lastly one should notice the terms of s 60 which gives the Nominal Defendant a right to recover from the owner of an uninsured vehicle the sum which it paid to settle the claim or the damages awarded against it. The section provides:
‘(1)If personal injury arises out of a motor vehicle accident involving an uninsured vehicle, the Nominal Defendant may recover, as a debt, from the owner or driver of the vehicle … any costs reasonably incurred … on a claim for the personal injury.
(2)It is a defence to an action by the Nominal Defendant under this section –
(a)As far as recovery is sought against the owner – for the owner to prove –
(i)that the motor vehicle was driven without the owner’s authority; or
(ii)that the owner believed on reasonable grounds that the motor vehicle was insured
 The first defendant submits that a threshold question of fact must be determined before it can be known whether the plaintiff’s claim is one to which the Act applies. The threshold fact is, of course, whether the plaintiff’s injury occurred on a road. This is made clear by s 5(ii) and (iii). If the Act does not apply, as the first defendant contends, the Nominal Defendant is not the first defendant’s insurer, and accordingly, is not liable to meet the plaintiff’s claim and is not entitled to the conduct of the proceedings begun by the plaintiff. If, as the Nominal Defendant contends, the injury did occur on a road then it is obliged to undertake the conduct and control of the legal proceedings and it may compromise or settle them ‘for the insured person’. Section 35 compels the driver or owner of the motor vehicle involved in an accident out of which personal injury arises to provide any information about the accident which the insurer may reasonably require. That apart the Act does not appear to contemplate that the insured will play any part in the resolution of motor vehicle accident claims or proceedings brought in respect of them. The Act does not require actual service on the insured; proceedings are to be conducted by the insurer and judgment cannot be entered against the insured.
 The first defendant wishes to have the threshold question determined at the trial of the action in which it would seek to join WorkCover as third party from which it would seek indemnity in the event that it succeeded in its contention that the injury did not occur on a road. It claims to be prejudiced by the Nominal Defendant’s admission, on its behalf, of liability with its concomitant pre-emption of the determination of the threshold question of fact, as well as the decision not to defend the claim by pleading contributing negligence.
 The Nominal Defendant, supported by the plaintiff, submits that it has acted strictly in accordance with the provisions of the Act and has done no more than it is permitted, and indeed obliged, to do. It submits that the first defendant will not be prejudiced. The adumbrated action against the first defendant to recover whatever is paid to the plaintiff, and its own costs, can be defended on two bases: the first being that the crane was not an uninsured motor vehicle because, if it was on the first defendant’s own property it was not required to be insured, and secondly, that if the injury did not occur on a road the Nominal Defendant was not the insurer and did not therefore act reasonably in paying out the plaintiff’s claim. If the first defendant makes good its point it will not have to reimburse the Nominal Defendant.
 There appear to me two possible solutions to the problem. One is to order the preliminary trial as a separate issue of the question whether the plaintiff was injured on a road, pursuant to UCPR 483. The question would be resolved by the testimony of a very small number of witnesses, perhaps only two, and could be heard in an hour or two, probably in the Applications list, but certainly quickly. Directions could be given for the first defendant to have the carriage on the trial of that question; that the question be determined without further pleadings; limited disclosure if necessary and that WorkCover be notified of the trial and be given leave to appear. The result of such an order and directions should be the expeditious determination of the threshold question without involving the plaintiff in additional cost and without complicating the further trial of the action which would proceed against the insurer whose liability would have been established.
 The alternative is that proposed by the Nominal Defendant and the plaintiff, which is to allow the action to proceed as though the Act applied, leaving the threshold question to be determined in any recourse proceedings brought by the Nominal Defendant. An objection to this course is that it is possible to read s 60 as meaning that the only defences to an action brought by the Nominal Defendant on the debt created by subsection 1 are those set out in subsection 2, and that whether the costs have been ‘reasonably incurred’ is to be judged only by reference to the nature and extent of a claimant’s injuries. Such a construction would lead to frank injustice to parties in a position of the first defendant here and should be avoided. There would be no injustice if the section were read in the manner suggested by counsel for the Nominal Defendant and the plaintiff. Their submission is that the debt referred to in s 60(1) only arises, and can only be recovered, where the terms of the subsection are satisfied. That means that there must be personal injury arising out of a motor vehicle accident involving an uninsured vehicle and that any costs which the Nominal Defendant seeks to recover as a debt must have been reasonably incurred. The submission, which I accept, is that the Nominal Defendant will not have reasonably incurred costs if it settled, or accepted liability to pay damages, for a claim which did not arise out of an accident involving an uninsured vehicle.
 The first defendant cannot be disadvantaged by the Nominal Defendant’s conduct of the defence of the plaintiff’s claim. Section 44(3) expressly prevents anything said or done by the Nominal Defendant in the conduct of that defence binding the first defendant in any subsequent recovery proceedings.
 I have not found the matter easy to decide but have concluded that the second alternative is to be preferred for the reason that the threshold question does not arise on the statement of claim or the defence delivered by Messrs Hunt & Hunt which was delivered in accordance with the terms of the Act. The issue only arises on the defence filed by Messrs Damien Bourke & Associates which clearly conflicts with the Act. The Act makes the insured and the insurer joint defendants. They cannot have separate interests or be separately represented.
 Things might have been different had the plaintiff framed his case in the alternative against the Nominal Defendant on the basis that the accident occurred on a road, and against the first defendant and WorkCover on the basis that it did not. In that case an early preliminary trial of the threshold question would be appropriate.
 Instead the plaintiff has chosen to frame his case on the basis only that it is one to which the Act applies. The Nominal Defendant has responded, as the Act required it to, and accepted that it is the insurer. It is therefore entitled to conduct proceedings to the exclusion of the first defendant.
 The first defendant’s complaint about the Nominal Defendant’s failure to allege contributory negligence may be disregarded. If the plaintiff’s claim is one to which the Act applies then the Nominal Defendant is entitled to conduct the action and decide whether or not to allege such a defence. If the Act does not apply the Nominal Defendant will not recover anything from the first defendant.
 The appropriate orders are therefore to dismiss the application and order that the first defendant’s defence of 13 November 2003 be struck out. The first defendant should pay the Nominal Defendant’s costs and the plaintiff’s costs of the application to be assessed on the standard basis.
- Published Case Name:
James v B & L Steel Fabrications Pty Ltd & Anor
- Shortened Case Name:
James v B & L Steel Fabrications Pty Ltd
 QSC 25
27 Feb 2004
No Litigation History