Hardacre v Johnson[1998] QDC 27

BETWEEN:

AND

MICHAEL JOHNSON

REASONS FOR JUDGEMENT - FORDE D.C.J.

Delivered the 27th day of January 1998

Introduction

The plaintiff, Robert John Hardacre, sues for damages for loss of consortium and servitium suffered as a result of the negligence of the defendant. The plaintiff was the lawful spouse of Alyx Kathleen Hardacre. On or about 6 December 1994, Alyx Hardacre was injured when her motor vehicle collided with a vehicle being driven by the defendant, Michael Johnson. Mrs. Hardacre suffered personal injuries as a result of that accident. The plaintiff says that he has been deprived of the services of his wife and much of her “companionship, comfort, society and assistance and he has suffered loss and damage accordingly.”

Motor Accident Insurance Act 1994

The substantial provisions of this Act came into effect on 1 September 1994. In other words, its enactment preceded the subject accident. The applicant/defendant in the present case seeks to strike out the plaint on the grounds that the plaintiff has breached the statutory prohibition upon the commencement of proceedings provided for in s. 39(5) of the Motor Accident Insurance Act 1994 (Queensland) (“The Act”). The plaintiff, it alleges, failed to deliver a s. 37 notice prior to the commencement of the action. The defendant seeks to strike out the action. It is common ground that a notice has yet to be delivered. Section 37.1 of the Act is in the following terms:

1. “37(1)
   Before bring an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or of the insurers, against which the action is to be brought -

1. (2)
   The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

1. (3)
   However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

1. (4)
   If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.”

Section 39 provides as follows:

The plaintiff was given leave to file a summons pursuant to s. 39(5)(c) for leave to bring the proceedings despite non-compliance with the requirements of Division 3 of the said Act.

The applicant/defendant submits that a claim for loss of consortium is a claim for “personal injury” within the meaning of the Act. The case of S.G.I.O. v. Crittenden (1966) 117 CLR 412 is relied upon. It was held in that case that a policy issued in conformity with the s. 3(1) of the Motor Vehicles Insurance Acts 1936-1961 (Queensland) covers the insured's liability to a husband or parent for loss of consortium or loss of servitium as a result of bodily injuries caused by the operation of the insured's motor vehicle. Section 3 required that every owner of a motor vehicle as a condition of annual registration of such vehicle to indemnify himself by a contract of insurance against “all sums for which he or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person ... where such injury is caused by, through or in connection with such motor vehicle”.

In Crittenden's case, McTiernan ACJ stated that the draftsmen considered the word “for” more suitable than the phrase “on account of” when drafting s. 3. He stated:

Taylor J, at 418, said that the word “for” or “with respect” to “accidental bodily injury” is not confined to a liability to pay damages to the injured person himself. The counsel for the applicant/defendant contends that if a consortium claim is not covered by the words “personal injury” within the meaning of the Act, then such claims would not be the subject of indemnity and all drivers in Queensland would be subject to personal liability for some consortium claim. Notwithstanding the practical consequence of this observation, the schedule to the Act which in effect sets out the policy states:

The decision of Crittenden was referred to by the Full Court in Opperman v Opperman (1975) Qd.R. 345 at 347. The Full Court referred to the fact that s. 3 of the Motor Vehicles Insurance Act ibid and decided that the indemnity provided by a policy issued in conformity with the section included liability to a husband for loss of consortium or servitium as a result of bodily injuries caused to the wife by the negligent operation of the insured's vehicle. An attempt was made to distinguish Crittenden by reference to the fact that it “was a decision on a remedial statute and the interpretation there given to the words ‘damages in respect of such motor vehicle for accidental bodily injury’, should not be given a similar meaning or effect when found in a section such as s. 5 with which this case is concerned.”

The Court was concerned with s. 5 of the Law Reform (Limitation of Actions) Act 1956. It was held in that case that the claim for loss of consortium squarely fell within the meaning of s. 5 and was an action for damages which “consists of or included damages in respect of personal injury to any person”.

Counsel for the present plaintiff attempted to show that the Court of Appeal in Cardakliya v. Mt. Isa Mines Ltd (1995) 1 Qd.R. 500 distinguished between claims for personal injury, loss of consortium, dependency and nervous shock. Cases such as Opperman v Opperman ibid were referred to. The court in Cardakliya's case was concerned with s. 3 of the Law Reform (Husband and Wife) Act 1968 in relation to a claim for consortium. The section provides as follows:

The nature of a claim in consortium was referred to namely as a “descriptive word sufficiently appropriate for the purpose of any plea alleging the consequential loss or damage which any husband suffered whose wife was incapacitated as a result of a battery”, Toohey v. Hollier (1955) 92 CLR 618 at 625-6.

The Court in Cardakliya's case had to determine whether Rule 149A of the District Court Rules applied to an action for damages for loss of consortium. It held that it did so apply. The practical consequence was that a plaintiff was required to file and serve a statement of loss and damage pursuant to that rule. It was held that the rule should not be given a restrictive construction but -

Counsel for the plaintiff attempted to distinguish Rule 149A from the more strict requirements of s. 37 of the said Act. He submitted that the said Act in effect removed accrued rights under s. 37 as distinct from Rule 149 which was remedial in nature. It was submitted by the plaintiff that if s. 37 applied to the instant application, it would amount to a section which destroys accrued rights in respect of actions for damages for loss of consortium. Further, on the assumption that the Motor Accident Act is remedial legislation, it was submitted that the interpretation which was favourable to the claimant should be preferred. In relation to the former proposition, a case of Winsor v Boaden (1953) 90 CLR 345 was referred to. The respondent in that case was convicted and sentenced to imprisonment for three months on each charge. In respect of the third charge the imprisonment was to commence at the expiration of the imprisonment for the first offence. It was held that the respondent had not been sentenced to imprisonment for any term of or exceeding six months. It was held to be a principle of construction that a statutory provision which destroys accrued rights is not to be given a wider or more ample operation than the literal, grammatical meaning of the words conveyed, unless the context or subject matter so demands.

In the present case, the right to sue for loss of consortium accrued some time after the date of the accident, namely 6 December 1994. However, when one looks to the second reading speech 16th February 1994 p. 6902, the following appears:

As was observed in Opperman's case, that Crittenden was a decision on a remedial statute is just as apposite to the present case. The said Act is of a remedial nature in order to provide “optimum recovery for the injured person”. A similarity can therefore be found with Rule 149A as discussed in Cardakliya's case, p. 502. In any event, s. 37 provides for a procedural requirement. It does not remove an accrued right.

One must also have regard to the extent of the indemnity provided under the relevant policy in arriving at any decision. It would be inconsistent for the Act to indemnify persons who otherwise would claim for loss of consortium, and yet for the procedural aspects of the Act not to apply to claims for loss of consortium. In the context that this is remedial legislation, it is important that any claims for loss of consortium be covered by the Act. In my view, a construction of the legislation is required to give it some consistency in view of the fact that the indemnity provisions under the Act would cover such claims.

Two decisions were referred to me which supported the proposition that a claim for loss of consortium was not an action in a Court for damages for personal injury within the meaning of s. 37(1). The first decision was in a matter of McKay & Anor v Maddern & Anor (unrep.) Maroochydore District Court, plaint no. 320/97,13.10.97.

It does not appear the matter was fully argued in that case. No authorities were referred to. There was an observation by the learned Judge that the plaintiff was not bringing an action for damages for personal injuries. No further argument seemed to be addressed on that matter. The other decision was that of the learned stipendiary Magistrate of Maroochydore Magistrates Court of Pizzaro v. Collins & FAI No. 1093/97, 8.1.98. In effect, the learned Magistrate found that the plaintiff did not suffer personal injury as a result of the motor vehicle accident. He found therefore that the provisions of s. 37 did not apply to the plaintiff in that case.

Action By Wife

Alyx Kathleen Hardacre commenced action in the District Court in 1997 for damages for personal injury as a result of the accident which occurred on 6 December 1994. Her action is a distinct action from that of the present plaintiff, her husband. A husband's claim for damages for loss of consortium and the wife's action for personal injuries are entirely separate. “The husband's action is not an off-shoot of the wife's right”: Curren v. Young (1964-65) 112 CLR 99 at 103. The husband does not sue for the injury to the wife. His claim is for loss of consortium consequential upon the injury. That is the damage which he suffers.

The different question which arises is whether the particular statute, namely the Act, should receive a constrictive construction to the effect that s. 37 does not refer to a loss of consortium action, even though such a claim is part of the indemnity which the policy under the Act provides for.

Leave to Proceed

The plaintiff seeks by way of summons an order that pursuant to s. 39(5)(c) of the Act he be granted leave nunc pro tunc to bring the proceedings, despite non compliance with the requirements of Division 3 of the Act. The relevant nature, it was submitted, is the one envisaged by s. 37. No contrary argument was presented on this point.

It was submitted by the defendants that s. 39(5)(c) is designed to cater for a situation in which non-compliance cannot be remedied prior to the commencement of proceedings. It was submitted that delivery of the s. 37 notice was mandatory. It should be noted that where a claimant does not comply with a notice to the Nominal Defendant, s. 37(4) says the claim against the Nominal Defendant is barred. There is no similar provision relating to a failure to give notice within time under s. 37 in relation to claims which do not involve the Nominal Defendant.

Section 37 notices must be given within 9 months after the accident, or the first appearance of symptoms of the injury. Section 39(5) says a claimant may bring a proceeding in a court for damages based on a motor vehicle accident, only if certain conditions are met, including notice to the insurer. Section 39(7) states that if a claimant does not comply with the requirements of the Division, then there may be certain consequences in relation to costs or an award of interest being limited.

Section 57(1) was also referred to by counsel. It provides as follows:

Counsel for the plaintiff presented a scenario which was to the effect that there was an inconsistency between s. 37 and s. 57. If, for example, a notice had been given just prior to the expiration of limitation period, then an action could not be brought for some 6 months since the notice unless the insurer has waived compliance with the notice, or the insurer has denied the claims or admitted liability in part.

Section 57(2) refers to an application for leave to bring a proceeding based on a motor vehicle accident claim being made under Division 3, before the end of the period of limitation applying to the claim, then the claimant may bring a proceeding in a court based on the claim, even though the period of limitation is ended. Proceedings may only be brought after the end of the limitation period if it is brought within six months after the day on which the notice is given or leave to bring the proceedings is granted. Although s. 57 is not strictly relevant to the facts of the present case, it was argued to show the limited basis upon which an application for leave is to be granted.

On the face of it there is some inconsistency between s. 57 and s. 37. In other words, the 6 months under s. 39(5) may not have expired, and yet the Limitation of Actions Act becomes relevant. Under s. 57(2) the proceeding may only be brought after the end of the period of limitation if it is brought within 6 months after the day on which the notice is given or leave to bring the proceeding as granted. It is difficult to see why s. 37(5)(c) should be limited to non-compliance prior to the action being commenced or before the end of the period of limitation. In the present case, if leave is not granted, and the action is dismissed, then the plaintiff's claim would be statute barred.

A solicitor may well give notice within the three years pursuant to s. 37 but prior to the commencement of the proceedings, and before the 6 months expire, the Limitations of Actions Act may become relevant. It is a principle of construction that where a provision destroys accrued rights, it should not be given a wider or more ample operation than the literal nature or grammatical meaning of the words conveys unless there is a context or subject matter which so demands: Winsor v Boaden (1953) 90 CLR 345 at 347. Therefore, I do not take s. 57 to limit the right of a claimant pursuant to s. 39(5)(c) to be able to seek leave to bring the proceeding prior to the commencement of an action.

It has been held elsewhere that the provisions of this Act are mandatory and not directory: Young v. Nominal Defendant & Ors 18 Qld. Lawyer reps 21. In relying upon a decision of Hill v Bolt (1992) 28 NSWLR 329, Newton J held that there was a prohibition forbidding the commencement of court proceedings in respect of claims under the Act. He could not accept that there was a difference in terminology between the Queensland and NSW Acts to warrant a different conclusion to that reached by Kirby P. The relevant provision of s. 48 of the Motor Accident Act 1988 NSW provided that the claimant must comply with a reasonable request and that if the claimant failed to do so “Court proceedings cannot be commenced ... while the failure continues”. In the case before His Honour, there is no application pursuant to s. 39(5)(c). Any prohibition which may be inferred from s. 39(5)(a) must be read subject to (c). Notwithstanding non-compliance, the Court is given power to grant leave to bring proceedings. In the present case, leave would have to be given nunc pro tunc.

Leave Nunc Pro Tunc

The Public Trustee Act 1978 provides in s. 95 that:

This provision was considered in Fitzpatrick v. Jackson [1989] 2 Qd.R. 542.

The consent of the Public Trustee to bring the action had not been sought prior to the issue of the Writ. It was held that provisions of s. 95 were mandatory and the consent required under that section could not be given nunc pro tunc. Macrossan CJ said at 549:

In distinguishing s. 37(1)(2) of the Companies (Queensland) Code, Kelly SPJ said at 548:

Section 371(2) required the leave of the Court as does the present Act, s. 39(5)(c). The prohibition under s. 95 of the Public Trustee Act is similar in effect to the prohibition which was discussed in Hill v. Bolt ibid.

As mentioned by Newton DCJ in Young's case, s. 39(7) prescribes penalties for non-compliance with the requirements of Division 3 in relation to costs and a restriction on recovering of interest, but not that the claim is prohibited. If, for example, the default had been continued to the present time, and the defendants have suffered prejudice, then the remedies under subsection 7(a) and (b) of s. 39 would be available to them. For those reasons, it is my view that the leave requirement is procedural or directory, and therefore the defect can be cured by order of the Court nunc pro tunc. If the Act provided that this type of action, where there is a failure to comply with s. 35, is barred, then it would go to the Court's jurisdiction. If the requirement is jurisdictional or mandatory, an action commenced without leave is a nullity ab initio and the defect is irremediable: see an article “A New Look at Leave Provisions” (1997) 71 ALJ 746. The thrust of the author's comments is that there is a general tendency to regard leave for actions provisions as procedural rather than going to jurisdiction. It referred to the High Court decision in Emanuele v. The Australian Securities Commission 71 ALJR 717 as supporting this trend. The learned author commented that:

In the present case there is the absence of any such provision, unlike actions against the Nominal Defendant which are barred where there is a failure to comply with s. 37.

In Emanuele v. ASC, winding up orders were made prior to leave being granted by the Court. The Full Court on appeal confirmed those orders but granted the Commission leave nunc pro tunc in pursuance of s. 459B(2) of the Corporations Law. It was held by the High Court that the failure to obtain leave was a procedural matter exposing a mere defect or irregularity which the Full Court of the Federal Court had effectively cured by its retrospective order.

In approaching the present case I have had regard to the comments of Kirby J at 735: