Coyne v Coyne[1997] QDC 19

“In response to your client's Notice of Claim we advise:—

LIABILITY

Liability for the cause of the accident is admitted.

OUR OFFER

We note claimant's injuries have not stabilised and we are therefore not in a position to make an offer.”

“1. A declaration that the correspondence dated 13th November 1996 does not comply with Section 41(1)(b) of the Motor Accident Insurance Act 1994.

2.  An order that the Second Defendant so comply with Section 41(1)(b).

3.  Alternatively that judgement be entered for the Plaintiff against the Defendant for damages to be assessed.

4.  Such further orders that the Court may deem meet.

5.  That the Defendants pay the Plaintiff's costs of and incidental to this Application to be agreed, or failing agreement to be taxed.”

“(a) 

2. (b)
    ...

3. (c)
    to encourage the speedy resolution of personal injuries claims resulting from motor vehicle accidents; and

4. (d)
    ...”

“(1) Within 6 months after an insurer receives notice of a motor vehicle accident claim under this Division, the insurer must-

3. (2)
    As soon as practicable after an insurer receives notice of a claim under the Division, the insurer must-

3. (3)
    ...

3. (4)
    ...

3. (5)
    ...

3. (6)
    An admission of liability by an insurer under this section-

3. (7)
    If -

 the court must award costs in favour of the claimant on a solicitor-and-client basis unless the insurer establishes good reason why it should not.”

“The 1936 legislation does not provide a process to speed up the resolution of claims for the benefit of injured parties....The Government is looking to reform personal injury litigation arising out of motor vehicle accidents so that early resolution to personal injury insurance claims is achievable in the most practicable timeframes ”

“Judgment or order upon admissions of factes”

When admissions of fact have been made in an action or matter, any party may, at any stage of the action or matter, apply to the Court or a Judge for such judgment or order as upon such admissions the party may be entitled to, without waiting for the determination of any other question between the parties; and the Court or a Judge may, upon such application, make such order, or give each judgment, as may be just”.

“When admissions of fact had been made in a cause, either on the pleadings or otherwise, any party may, at any stage of the cause, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to without waiting for the determination of any other question between the parties and the Court or a Judge may, upon such application, make such order or give such judgment as may be just.” (emphasis added)

“1.3 In paragraph [36.5.3] of Ryan, Weld & Lee “Supreme Court Practice Queensland, it is noted that this Supreme Court Rule is similar to Victorian Supreme Court Rules, Chapter 1, Rule 3504 and the Northern Territory Supreme Court Rules, Rule 35.04 which both refer to admissions “in a proceeding” and dissimilar to High Court Rules, Order 33 Rule 4, Federal Court Rules, Order 18 Rule 4, New South Wales Supreme Court Rules, Part 18 Rule 3, and English Supreme Court Rules, Order 27 Rule 3. The distinction is important. The earlier English Rule, Order 32 Rule 6, was in the following terms:—

‘Any party may, at any stage of a cause or matter, where admissions have been made, either on the pleadings or otherwise, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to without waiting for the determination of any other questions between the parties...’

Under this earlier English Rule, it had been held that the words ‘or otherwise’ were of general application and not confined to the pleadings. So an admission made by letter after” the commencement of proceedings had been held sufficient for a successful application under that Rule Ellis -v- Allen [1914] 1 Ch 904. Similarly, an admission in correspondence made after the commencement of proceedings was held by Barwick CJ to fall within the equivalent High Court Rule, Order 33, Rule 4, in Re-Registered Trademark “Certina” (1970) 44 ALJR 191, at 192-3:—

The admissions on which a Justice may be asked to act under the rule are not limited to admissions formally made in the pleadings or in response to a notice given pursuant to Order 33 Rule 3, see Ellis -v- Allen [1914] 1 Ch 904. The necessary admission may be found in a writing proved to be the Defendant's or it may be proved to have been made by the Defendant orally ’

1.4 The mode of admission ‘in the cause’ is described in Order 36 Rule 5 as being, either on the pleadings or otherwise This would appear to limit the investigation to an admission in the pleadings or otherwise in the cause This view is supported by the decision of Asche CJ in Civil and Civic Pty Ltd -v- Pioneer Concrete (Northern Territory) Pty Ltd (1991) 103 FLR 196 where, at page 208, in construing the similar Northern Territory Rule which provides for the admission ‘in a proceeding’, commented:—

The relevant words are ‘admissions of fact in a proceeding’. The word “proceeding’ is not defined in the Rules but it is defined in the Supreme Court Act 1979 (NT) Section 9 as meaning ‘a proceeding in the Court’ the words ‘or otherwise’ would then cover such matters as admissions made in Answers to Interrogatories or Notice to Admit, which, clearly enough, can be considered part of the proceedings I doubt if they would cover discovery since a discovered document would only become part of the proceeding when tendered. I would leave for another day the question whether, once there had been discovery, discovered documents containing admissions could then be tendered by Affidavit in an interlocutory proceeding and, therefore, become admissions ‘in the proceeding’ Discovery has not yet taken place in this case, and I do not think the Plaintiff can anticipate it by referring to documents which have not been formerly discovered and cannot yet constitute admissions ‘in a proceeding’.”

“Where admissions of fact or part of a case are made by a party to a cause or matter, either by his pleadings or otherwise...”

“Where admissions of fact had been made by one party, the court was empowered under RSC Ord 27, r 3, to give the other party only ‘such judgment or order as upon those admissions he may be entitled to’. Accordingly, in an action founded on negligence a plaintiff was not entitled to judgment unless he could prove the two necessary components of his cause of action ie that the defendant had been negligent and that the plaintiff had suffered damage as a result of that negligence. An admission of negligence was not necessarily an admission of liability, and on the true construction of the pleadings and correspondence the defendants had not admitted that the plaintiff's injuries were caused by their negligence. It followed, that since the plaintiff could not show that both components of his cause of action had been admitted, he was not entitled to an order under RSC Ord 27, r 3.”

“If a defendant wishes to concede that his or her conduct fell short of the proper standard of care, but to deny that it caused the plaintiff any harm, the proper course is to deny liability. It may be that other formulae may be adopted and they sometimes are.”

“I do not consider that the defendant is entitled to withdraw the admission of liability made by its insurer which has the conduct of the case on behalf of the defendant. At common law admissions may be withdrawn. However, in my view, this form of litigation is now covered completely by the provisions of the Act, including where it has preserved certain common law rights The Act envisages that insurers will make binding admissions of liability, either in whole or in part, and envisages that such admissions will be binding throughout the litigation. When this has been done a plaintiff need not do anything to endeavour to search for witnesses or to gather any evidence that he may require, in addition to what might be regarded as the usual evidence as to how the collision occurred, as he would do if liability was denied. I consider a reasonable plaintiff in the circumstances can wait until the insurer's decision on liability in general before gathering such evidence and adding to the costs of the litigation and the burden upon the insurer.

In my view there are two exceptions to what I have just stated. If the admission of liability has been demonstrated to have been given as a result of fraud, either by the plaintiff or, perhaps, in some cases, even the insurer's own insured or someone closely connected with that insured, or even by a misrepresentation not amounting to fraud as to the facts of the accident, or if it is demonstrated that the admission of liability was made on the basis of information given by the plaintiff in his claim form which is demonstrated to be at least prima facie wrong, then a defendant in any such circumstance may be permitted to withdraw the admission of liability and deny it in its, his or her pleading

If a defendant could with no apparent good reason withdrawn an admission of liability formally made by the defendant's insurer, then I would have expected the Act, which now covers the field in this form of litigation, to have so provided. It does not do so. In my view there is every reason for having the defendant bound by its insurer's admission of liability and no reason for permitting the action to proceed on the basis that the issue of negligence raised in the statement of claim is a matter of dispute.”

1. (a)
    Sharpe J. did not dispose of the application before him explicitly, at least upon the basis of estoppel or waiver.

2. (b)
    In the case of a sham defence, striking out a defence was appropriate, but that in the case at bar, the defence denying liability was not in that category notwithstanding an admission of liability pre-action. General Steel Industries Ltd. v. Commissioner for Railways (N.S.W.) & Ors. (1964) 112 C.L.R. 125, 129.

3. (c)
    If the letter admitting liability was to be relied upon, the plaintiff could plead estoppel in her reply if appropriate.

4. (d)
    The defendant in any event ought to have been given leave to re-plead and raise the defence of inevitable accident.

“As I read s 45 it places on the insurer at the risk of its licence the obligation to determine the matters as quickly as possible. In doing so it must turn its attention immediately to the question of liability and, if that is determined favourably to the plaintiff, then to the question of damages. In my view in its correspondence with the plaintiff the defendant makes it quite clear that the admission of liability is made under the Motor Accidents Act not as a result of any agreement between the solicitor for the plaintiff and the insurance company. This is not a contractual situation. It is a situation where the defendant is carrying out the duties that are required of it by the legislation. It was required to admit liability because it appeared that the defendant was liable. Subsequently further evidence came available which suggested that liability ought to be denied and that there was a good case for contributory negligence. The defendant did no more than act on this additional evidence. In my view there was no contractual relationship between the plaintiff and the defendant. I draw this inference on two bases. First, I do not think the facts of the situation indicate that a contract was entered into, and secondly, the defendant has made it quite clear in making the admission of liability that the admission is made not pursuant to any agreement but by virtue of its obligations under the Motor Accident Act.”

“There is a further ground for the plaintiff's failure. It would be contrary to public policy if an insurer acting on the early information it has available to it adopts its responsibilities under the Motor Accidents Act and admits liability but subsequently is prevented from denying liability when further information comes to hand.

Such a situation would result in an insurer denying liability until such times as every possible avenue relating to liability was explored. This is not the intention or the spirit of the Act There will be circumstances where the conduct of the insurer is such that an estoppel may well arise. It does not in this case. However, I am of the view that the plaintiff is entitled to use the evidence about the defendant's admission of liability as evidence in the hearing of the action if he so chooses.”

1.  That a letter pre-action admitting liability under s. 41(1)(b) of the Motor Accident Insurance Act 1994 is not an admission of fact in the action within the meaning of r 202 of the District Court Rules.

2.  An admission of liability pre-action under the said Act may be pleaded by the plaintiff in the Plaint as a basis for establishing liability

3.  If the insurer denies liability in its defence, once having admitted it pre-action, it ought not to be prevented from so doing, particularly in light of the above construction of rule 202. It ought be allowed also to re-plead if necessary and subject to any estoppel raised by the plaintiff.

4.  The plaintiff is entitled to plead in its reply an issue such as estoppel where appropriate, based upon the earlier pre-action admission and subsequent detriment (if any).

5.  Once the insurer denies liability and/or the issue of estoppel is raised, it is not appropriate to grant interlocutory judgment until the hearing of one or both issues.

6.  If the insurer denies liability in its defence, without good reason, and if the matter proceeds to trial, an appropriate order for solicitor client costs in the action in the plaintiff's favour may be made if the plaintiff be successful in the action.

7.  In the present case, the defence admits a breach of duty but not damage This is an appropriate case where it is obvious that the only issue is damages. If there were a denial of negligence, a different conclusion would have been reached.

8.  It is ordered that: