Collins v Pizarro[1998] QDC 110

APPELLATE JURISDICTION

JUDGE DODDS

and

and

MAROOCHYDORE

DATE 1\6\98

JUDGMENT

These were appeals against the orders of a stipendiary magistrate made on the 8th of January 1998 dismissing the appellants' applications' to have the respondent's action struck out or stayed and making orders for the appellants to make discovery and answer interrogatories. The appellants seek orders that the respondents action be struck out or stayed and that the respondents application before the stipendiary magistrate for discovery and answers to interrogatories be dismissed.

The respondent plaintiff in an action in the Magistrates Court (the action) had 9 sought damages for loss of consortium. Her husband was injured in two separate motor vehicle incidents. On the 13th of October 1994 he was struck by a motor vehicle driven by the first appellant (the first defendant in the action) and suffered personal injury. The second appellant (the second defendant in the action) was the licenced insurer of the motor vehicle driven by the first appellant. On the 14th of July 1995 the plaintiffs husband was driving a motor vehicle which was involved in a collision with a motor vehicle driven by the third appellant (the third defendant in the action) and suffered personal injury. The fourth appellant (the fourth defendant in the action) was the licenced insurer of the motor vehicle driven by the third appellant.

The plaint was filed in the magistrates court on the 21st of August 1997.

Application was made in the magistrates court by the respondent for orders the second appellant file and serve a supplementary affidavit of documents and answers to interrogatories and the fourth appellant file and serve an affidavit or documents and answers to interrogatories. The appellants' for their part applied for an order the respondent's action be stayed or struck out by reason of her failure to comply with Sections 37, 39 and 57 of the Motor Accident Insurance Act 1994 (the Act). It appeared the respondents husband had complied with Section 37 but the respondent had not.

On 8th January 1998 the stipendiary magistrate dismissed the appellants application and made the orders sought by the respondent and for costs. He held that the notice contemplated by Section 37 is only required to be given in circumstances “where a person intending to make a claim is personally injured because of a motor vehicle accident.”.

The policy of insurance under the Act insures against liability for personal injury to which the, Act applies caused by through or in connection with an insured motor vehicle; Clauses 1 and 3(a) of the Policy.

Personal injury is said to include fatal injury, prenatal injury and damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices; Section 4 of the Act. The provision is inclusive.

The Act applies to personal injury caused by, through or in connection with a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975, including a trailer, caused wholly or partly by a wrongful act or omission in respect of that vehicle by a person other than the injured person. Section 4 and 5 of the Act.

Section 37 of the Act uses the word claimant to describe a person who must give the notice required by the Section. A claimant is defined as a person by or on whose behalf a claim for damages based on a liability for personal injury arising out of an incident in which the personal injury is caused by, through or in connection with a motor vehicle is made; Section 4 of the Act.

The legislation does not necessarily confine a claimant to a person who actually suffered personal injury. It refers to a claim for damages based on a liability for personal injury arising out of an incident in which the personal injury is caused by, I through or in connection with a motor vehicle. If a claim for loss of consortium is a claim based on a liability for personal injury so arising to which the Act applies, the respondent is a claimant as that word is defined in the Act.

Under the Motor Vehicle Insurance Act 1936-1961 broadly speaking every owner of a motor vehicle was required to indemnify himself by a contract of insurance against all sums for which he or his estate should become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury.....to any person....where such injury was caused by, through or in connection with such motor vehicle.; Section 3(1) of that Act. In SGIO -V- Crittenden 1966 117 CLR 412 the High Court Court found that the indemnity provided by a policy issued in conformity with that Act included liability to a husband for loss of consortium as a result of bodily injury caused to his wife by the negligent operation of an insureds motor vehicle.

In Cardakliya -V- Mount Isa Mines Ltd 1995 1 QR 500 the Court of Appeal was concerned with the application of Rule 149A of the District Court Rules to an action for loss of consortium. Rule 149A(1)(a) provides “This rule applies to actions for damages for personal injury or death.” The Court of Appeal held that given the remedial nature of the Rule and its purpose of ensuring mutual exchange of documents at an early stage so as to enable speedier and cheaper resolution of actions, it should be construed to apply to all actions in tort for damages which arise out of personal injury or death including actions by a person which by common law or statute arise out of the infliction of personal injury or death upon another.

I think a similar approach is required to the Act. Like the Act it replaced it is as Menzies J said in Crittendens case “intended broadly to afford protection to users of motor vehicles who become subject to liability because of bodily injury caused to others by the use of their motor vehicles and to persons who become entitled to damages by reason of the bodily injury so caused”; page 420. Given its social and economic purpose it should not be construed narrowly. I find a consortium claim is capable of being regarded as a claim based on a liability for personal injury to which the Act applies.

I note that Judge Noud in Perlenfein -V- Thomas and FAI General Insurance Company Plaint 5196 of 1997 Brisbane, 14th January 1997 and Judge Forde in Hardacre -V- Johnson and Suncorp General Insurance Limited Plaint 5102 of 1997 Brisbane, 27th January 1998 have each found the Act applies to a consortium claim and that the notices required by the Act must be given. The view I expressed in passing in Mackay and Mackay -V- Madden and NRMA Insurance Limited Plaint 328 of 1997 Maroochydore is incorrect.

Counsel for the respondent submitted that Regulation 10 of the Motor Accident Insurance Regulations which sets out the particulars to be included in a notice pursuant to Section 37 of the Act has many particulars which are not relevant to a consortium claim and that provides a clear indication that in a loss of consortium claim the notice is not required. It is true that many of the particulars required by Regulation 10 are apposite to a claim by a person who has actually suffered personal injury. However not all are. A number maybe provided by a plaintiff claiming for a loss of consortium. That is sufficient I think to dispose of the submission. In Cardakliya's case at page 502 the Court said of a similar submission with respect to Rule 149A of the District Court Rules “The mere fact that some of them might apply would be sufficient to rebut this argument. It is plainly not the intention of the subrule that all of them must apply to every action.”

The purpose of the provisions of Part 4 Division 3 of the Act which includes Section 37 is to provide for an exchange of information and negotiation leading to settlement of a claim without court action. In my opinion once it is accepted that a successful claim for loss of consortium is capable of being indemnified under a policy issued under the Act it follows that the provisions of Part 4 Division 3 must be complied with so far as it is possible to do so. In Young -V- Nominal Defendant 18 QLD Lawyer Reps 21 Newton DCJ held that the provisions of Section 37 of the Act were mandatory and struck out an action commenced where it had not been complied with. His Honour in part relied upon the decision of the NSW Court of Appeal in Hill -V- Bolt 1992 20 NSW LR 329. The Court of Appeal has confirmed His Honours decision; Young -V- Keong CA 2202\97\22\5\98. In this case no notice under Section 37 was given by the respondent. No declaration has been made pursuant to Section 39(5)(b) nor has leave been granted pursuant to Section 39(5)(c) of the Act. In that state of things the respondent cannot bring her action in a court. I note that the date her husband first suffered injuries allegedly germane to her claim was in excess of three and a half years ago.

Counsel for the respondent submitted that in the event I was of opinion that notice should have been given I should grant leave to bring the action pursuant to Section 39(5)(c) of the Act nunc pro tunc and then stay the action pursuant to Section 39(6) so that the requirements of the Act regarding exchange of information and negotiation were complied with.

In Carroll -V- Ives and FAI General Insurance Company Limited Plaint 1976/95 District Court Brisbane 15th September 1995, in a case where the action was commenced prematurely three weeks before the statutory period of six months had expired and when an application was made by the plaintiff pursuant to Section 39(5)(c) for leave to bring the action notwithstanding, Wylie QC DCJ gave leave nunc pro tunc. His Honour considered that in the circumstances of the case no purpose would be achieved by delaying commencement of the litigation.

In Perlenfeins case, a loss of consortium claim where notice pursuant to Section 37 had not been given and where the limitation period had not expired, Noud DCJ considered the most appropriate course was to strike out the plaint.

In Ferrier -V- Leung and Leung and FAI General Insurance Company Limited Plaint 5150\97 District Court Brisbane 14th January 1998 leave to bring the action was given although the action had already been commenced. Leave was backdated to a date prior to commencement of the action. Noud DCJ held the failure to give notice in accordance with Section 37 of the Act was a failure to comply with a directory or procedural provision.

In Hardacre -V- Johnson and Suncorp General Insurance Limited Plaint 5102\97 District Court Brisbane 27th January 1998 Forde DCJ dealt with an application to strike out a plaint in a loss of consortium action where notice under Section 37 had not been given. There was also an application by the plaintiff for leave to bring the action despite the noncompliance. Failure to give the Section 37 notice was due to the plaintiffs legal advisors taking the view notice was not required in a loss of consortium claim. In the particular circumstances of the case His Honour gave leave nunc pro tunc to bring the proceedings.

The scheme of the Act particularly of Part 4 Division 3 is broadly speaking to delay commencement of proceedings in a court and facilitate exchange of information and negotiation to promote settlement without court action. If notice contemplated by the Division is given or the insurer has waived compliance with that notice commencement of an action is delayed for six months so that settlement without court action may be achieved if possible. If the provisions of the Act designed to achieve settlement without court action are rendered nugatory either because there is a dispute about liability; (Section 39(5)(ii) or (iii)) or because of an insurers response to a notice of claim and a claimants attitude to that response;(Section 39(5)(b)) the Act proceeds as if there is no point in allowing six months to elapse before an action may be commenced. In addition the court may give leave to bring a proceeding despite noncompliance with the requirements of the Division; (Section 39(5)(c) of the Act.) If a claimant does not comply with the requirements of the Division a court in which the proceeding is brought may order a claimant to pay an insurers costs incurred because of the non compliance and may restrict an award of interest in a claimants favour; Section 39(6).

A grant of leave involves the exercise of a discretion exercised judicially, that is for reasons which can be rationally justified; Wyatt -V- Albert Shire Council 1987 1 QR 486; “not arbitrarily, capriciously or so as to frustrate the legislative intent.” Oshlack -V- Richmond River Council High Court, 25th February 1998 per Gaudron and Gummow JJ.

In exercising the discretion under Section 39(5)(c) the legislative intent of promoting negotiation and settlement without resort to court proceedings should not be ignored even though non compliance with provisions to achieve that is the basis of leave being granted and conditions may be attached to a grant of leave. In my opinion there should appear a sufficient explanation why there has not been compliance to be considered together with the question of prejudice to the insurer if leave were to be granted.

The appeals are allowed. The stipendiary magistrates orders are set aside. The respondent is ordered to pay the costs of the appeal and of the proceedings before the stipendiary magistrate.

I do not think it is appropriate to make any further orders on the appeals. No application for leave under Section 39(5)(c) has been made in the Magistrates Court where the action is. Any such application would be required to be supported by material and fully argued and if opposed supported by reasons for opposition. The presiding judicial officer would then have to consider whether leave could and should be granted.