Dimitri v Cotter
[1997] QDC 20
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Dimitri v Cotter[1997] QDC 20
Dimitri v Cotter[1997] QDC 20
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 314 of 1997 |
BETWEEN:
BARBARA ANN DIMITRI | Plaintiff |
AND
PETER M COTTER | First Defendant |
AND
VACC INSURANCE CO LIMITED (A.C.N. 004 167 953) | Second Defendant |
REASONS FOR JUDGMENT - FORDE D.C.J.
Delivered the 10th day of March 1997
Introduction
The plaintiff, Barbara Ann Dimitri, who is the applicant in this matter, was injured in a motor vehicle accident on 9 June 1996 She was a passenger in a vehicle which was attempting to execute a left turn at a green arrow from Beaudesert Road on to Browns Plains Road, Browns Plains. The first defendant's vehicle, it is alleged, drove through a red light and collided with the said vehicle in which the plaintiff was a passenger. As a result of the collision the plaintiff, it is alleged, suffered personal injuries. As yet no defence has been filed in the action.
Admission of Liability
The second defendant, who is the licensed insurer of the first defendant's vehicle, wrote to the plaintiff's solicitors by letter dated 3 January, 1997 in the following terms:
“We refer to previous correspondence in this matter.
Pursuant to Section 41(1)(b) of the Act, we advise that we are prepared to settle liability in respect of the incident on the basis of 100% apportionment in favour of your client.
doing so, we maintain our right on behalf of our insured to deny:
- (1)The extent of the injuries, damage or loss alleged to have been sustained by your client (if at all); and
- (2)The injuries, damage or loss as alleged are a consequence of our insured's negligence in the subject incident.
We note that we are awaiting you client's response to our offer made on 19 December, 1996.”
It is not disputed that the admission is one capable of being construed as an admission of breach of duty or negligence : Morris v. FAI General Insurance Co Ltd (1996) 1 Qd.R 495
Relief Sought
The action was commenced by Plaint on 28 January 1997
The present summons seeks the following relief:
- Pursuant to Rule 202 of the District Court Rules, the Plaintiff have Judgment against the Defendants for damages to be assessed.
- Alternatively, a declaration that the Second Defendant's Solicitors' correspondence to the Plaintiff'S Solicitor of the 3rd January 1997 constituted an agreement for the admission of the Defendants' liability for the Plaintiff'S damages in this action.
- Such further or other Orders as the Honourable Chamber Judge may deem meet.
- That the Defendants pay the Plaintiff'S costs of and incidental to this Application to be agreed, or failing agreement to be taxed.
Rules of District Court
Rule 202 provides as follows:
“When admissions of facts 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 such judgment as may be just”
In my view r.4 does not apply, as r.202 prescribes the practice in this Court.
For the purpose of this application, I find that the admission made by letter dated 3 January, 1997, was made pursuant to s.41(1)(b) of the Motor Accident Insurance Act 1994 (the “Act”)
For the reasons given by me in Coyne v. Coyne and GIO Australia Limited, Plaint 4569/96, I find that the pre-action letter is not an admission of fact within the meaning of r.202. Judgment is therefore refused on that basis.
Agreement
In order to determine whether there is an agreement by virtue of the same letter, it is necessary to look more closely at the correspondence. The letters are exhibited to the affidavit of John Keith Cunningham.
Exhibit A 9.7.96 - Acknowledgment by insurer of preliminary Notice of Claim pursuant to s 37 of Act - Request for Notice of Claim
Exhibit B 16.7.96 - Letter from plaintiff's solicitor to insurer enclosing Notice of Claim and inviting views on liability.
Exhibit C 26.7.96 - Letter from insurer accepting that Notice complied with Act and asking for medical reports and details of economic loss (if any).
Exhibit D - 31.1.97 - Admission of liability
Before an agreement could be found some consideration is necessary. The discussion in Newton, Bellamy and Wolfe v S.G.I.O. (Qld) (1986) 1 Qd.R 431 at 437 is helpful:
“In any event the arrangement here is supported by consideration. The insurer by accepting liability offers the other party an inducement and impliedly requests him to forebear from taking action with avoidance of costs of formal proceedings at the expense of the insured. Once the negotiations are thus commenced the potential for saving is created and the insurer is bound to pay something, however ultimately it is to be assessed, to that other party
Here negotiations continued for some time to determine whether the appellant would pay the respondent his damages without the need for the latter to commence an actin. In our view an agreement is implicit in the facts constituting the history of the matter, following upon the confirmation that liability was not an issue.”
At 444, Mcpherson J (as he then was) stated:
“Equally I see no great difficulty in identifying the consideration in a case like this. Forbearance to sue, even if only for a short period, is consideration for a promise: Alliance Bank v. Broome (1864) 2 Dr. & Sm. 289; 62 E.R. 631. The forbearance must, however have been granted at the request, express or implied, of the promisor: Miles v. New Zealand Alford Estate Co (1886) 32 Ch. 266, 268; Re Casey's Patents [1892] 1 Ch. 104, 115-116; Australian Woollen Mills Pty Ltd v. Commonwealth (1954) 92 C.L.R. 424, 456-457. It was because of that requirement that the plaintiff failed in Davidson v. Atlas Assurance Co Ltd [1932] N.S.L.R. 1163. There the relevant admission or acknowledgment was communicated to the plaintiff's insurers on September 17. It was not until November 15 (the report at p. 1169 erroneously says September 15) that there was any suggestion from the defendant insurer that there should be a delay; and even then, as Reed J. pointed out, there was no request that, in view of the admission, proceedings be stayed: see [1932] N.S.L.R. 1163, 1169. Here it is not at all difficult to discern in the correspondence at least an implied request by the SG.I.O. that the plaintiffs refrain from suing pending an investigation by the former of the circumstances of the accident. It was in consideration of this forbearance, which was both a detriment to the promisee and a benefit to the promisor, that in the end the S.G.I.O. agreed to accept liability. The delay in instituting proceedings gave it an opportunity of thoroughly investigating the matter of liability. Given that opportunity, which is sought and acted upon, the S.G.I.O. agreed that it was liable. It may not now say that there was no consideration for that agreement”.
He distinguished that agreement from a mere admission of liability revocable at will by the insurer”: Ricketts v. Callan (1992) 15 MVR 220.
Where the admission was made pursuant to the insurer's duty under the Motor Accidents Act (N.S.W.), Master Greenwood said at 221;
“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 it 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.”
With respect, I adopt his view in relation to the admission under s.45(1)(b) of the Queensland Act. No contract has been established
The plaintiff relies upon Newton op.cat and Dempsey v. Dorber [1990] 1 Qd.R 418; Morris v. F.A.I. op. cat.
Firstly, the estoppel arguments relied on in Morris op.cit. are not relevant in the present case. If the plaintiff had pleaded the letter of admission and had to re-plead in light of the defence, some detriment may have been established: Rickets v. Callan op cit. 224. No submissions were addressed to any detriment which the plaintiff may have suffered.
Secondly, in Dempsey v. Dorber, Connelly J relied on Newton's case to which reference has been made. In the absence of agreement, or estoppel there can be no basis for precluding the insurer from putting liability in issue. No forbearance or consideration was shown in the present case.
Nature of Admission
The defendants argue that Exhibit 1 does not admit damage Therefore, as negligence only is admitted, cases such as Davis v. Davis (1995) 21 M.V.R. 348 recognise that the three elements of a cause of action have not been admitted. In Coyne v. Coyne and Anor op.cat, I dealt this submission in the context of pleadings, not correspondence Given my view that the admission is not made in the action, I do not propose to comment further on this aspect.
Discretionary Ground
An interlocutory judgment based on admissions ought only be given where there is a clear case, Re: Registered Trade Mark “Certina” (1970) 44 A.L.J.R. 191. In my view this is not a clear case.
The admission was made in accordance with s.41(1)(b) of the Act. As has been discussed in Coyne v. Coyne and Anor op.cit., the insurer ought not to be shut out from delivering a defence which may for different reasons not be in accord with the pre-action admission. The discussion in GIO v. Phillips CA 40245/92 op.cit. is appropriate. The public policy reasons do have some relevance I do not intend to repeat the observations by other judges as quoted by me in Coyne v. Coyne and Anor op cit.
Without in any way detracting from the submission of counsel, I refer generally to my reasons in Coyne v. Coyne and Anor. Without knowing what the nature of the defence would be, this application is otherwise premature.
Order
1. Summons dismissed
2 Order that the costs of and incidental to the application be costs in the cause.