Kingsley v Williams[1999] QDC 213

HELD AT BRISBANE

QUEENSLAND

[Before FORDE DCJ]

[Jennifer Kingsley -v- Nicole Williams and FAI General Insurance Company Limited and Mistearl Pty Ltd]

Plaint No 71 of 1999

BETWEEN:

JUDGMENT

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

Plaint No 71 of 1999

BETWEEN:

REASONS FOR JUDGMENT - FORDE D.C.J.

Delivered the 23rd day of August, 1999

Introduction

1. 1.
   This is an application pursuant to rule 292 of the Uniform Civil Procedure Rules that leave be given for judgment to be entered for the plaintiff against the second defendant for the amount of the plaintiff's claim, such amount to be determined in the way the court directs. The alternative relief sought pursuant to rule 203(2) of the UCPR is that the issues between the defendants and the third party be tried separately from the issues between the plaintiff and the defendants.
2. 2.
   The applicant/plaintiff is Jennifer Kingsley. She was injured at her place of employment at the Shell Service Station at Mooloolaba on or about the 15th day of May 1997 at approximately 1.00pm. The first defendant, Nicole William, was reversing a Mitsubishi sedan when she struck the plaintiff. It is alleged that as a result of the collision the plaintiff suffered severe personal injuries, loss, and other damage. At the time the plaintiff was attempting to measure the level of petrol by dipping the petrol tanks at the said Shell Service Station.
3. 3.
   The allegations of negligence alleged against the first defendant, who was insured by the second defendant, FAI Insurance Company Limited (incorrectly designated in the plaint as FAI Insurance), are as follows:

1. “8

2. (a)
   Driving at a speed which was excessive in the circumstances;
3. (b)
   Reversing in circumstances in which (sic.) was unsafe to do so;
4. (c)
   Failing to stop, slow down or steer clear when a collision was imminent;
5. (d)
   Driving without due care and attention.”

1. 4.
   In the amended defence, which was filed on the 29th day of June 1999, the first and second defendants admit paragraphs 1,2, 3, 12 and 14 of the plaint which are as follows:

1. “1.
   The Plaintiff was born on the 25th May, 1970.
2. 2.
   At all material times:-

2. (a)
   The First Defendant:-

1. (i)
   Was the driver of a Mitsubishi Magna motor vehicle registration number 813 ARG (“the Mitsubishi”);
2. (ii)
   Was an “insured person” within the meaning of that term as provided for in the Motor Accident Insurance Act, 1994 (as amended) (“the Act”).

2. (b)
   The Plaintiff was a pedestrian on or about the garage driveway of the Shell Service Station at Brisbane Road at Mooloolaba.

1. 3.
   At all material times there was subsisting with respect to the Mitsubishi a policy of insurance issued under and pursuant to the Act by the Second Defendant.
2. 12.
   On or about the 15th day of December, 1997, the Plaintiff gave notice of her claim to the Second Defendant in accordance with Section 37 of the Act.
3. 14.
   More than six months have passed since the Plaintiff gave written notice of her claim to the Second Defendant in accordance with the Act.”

1. 5.
   Paragraph 3 of the said amended defence does not admit that the plaintiff suffered personal injuries, loss and damage as a result of the said condition. Further, paragraph 6 of the said amended defence pleads contributory negligence on the part of the plaintiff, and provides as follows:

2. “(a)
   Failing to keep any, or any proper lookout;
3. (b)
   Failing to or to properly or adequately warn the First Defendant of her presence;
4. (c)
   Taking up a position at the rear of the First Defendant's vehicle beneath the eye line of a driver seated in the First Defendant's vehicle without any or any proper or adequate warnings or notifications being given to the First Defendant.”

Admission made pursuant to Rule 41 of the Motor Accident Insurance Act 1994 (“the MAIA”)

1. 6.
   By letter dated the 18th of May 1998, the claims department of the second defendant wrote in the following terms to the solicitors for the plaintiff:

1. 7.
   The pleadings reflect the substance of the correspondence.
2. 8.
   It should be noted the letter is dated the 18th of May 1998, and the Plaint was filed on 5th of March 1999. In accordance with the reasons which I gave in Coyne -v- Coyne & Anor. (1997) 13 Qld Lawyer Reps 44, the admission was not made in the action within the meaning of rule 202. As the insurer in the present case has denied liability in its defence and also pleaded contributory negligence, it is not then appropriate to grant interlocutory judgment based solely upon such an admission pursuant to the MAIA. Reference was made by counsel for the plaintiff to the decision of Till -v- Nominal Defendant (No. 73 of 1997, unreported decision of Demack J, delivered on 26th February 1999). His Honour went on to distinguish the Queensland legislation from the Motor Accidents Act (NSW), and the decision of Government Insurance Office of New South Wales -v- Phillips (CA 40245 of 1992, unreported decision delivered on 27th August 1992), to which reference was made in Coyne -v- Coyneop cit. The general thrust of the Queensland cases do not agree with the reasons in Till's case: See also Ryan -v- Pont (Supreme Court Maryborough, Writ 24/1996, unreported decision of Helman J, delivered on the 12th of June 1997); Mulcair -v- Psekering & Others (Plaint 34 of 1998, unreported decision of His Honour Judge Wylie QC, judgment delivered 19th February 1999); Sundell -v- Bassingthwighte and Suncorp General Insurance Ltd (Plaint 101 of 1998, unreported decision of Robertson DCJ, delivered on the 13th day of November 1998), and Skilton -v- Grochau and FAI General Insurance Company Limited (Plaint 66 of 1998, an unreported decision of Hinson ADCJ delivered on the 24th day of September 1998). The latter three cases referred to and discussed Coyne -v- Coyneop cit. without dissension. I have been informed that Till -v- Nominal Defendant is the subject of an appeal. Counsel for the plaintiff submits that there are compelling reasons apart from any admission to grant interlocutory judgment pursuant to r 292.

Meaning of Rule 292

1. 9.
   Rule 292 provides as follows:

“292

1. (1)
   The plaintiff may, at any time after the defendant serves a notice of intention to defend, apply to the court under this part for judgment.
2. (2)
   The court may give judgment for the plaintiff for all or part of the relief claimed in the application if the court is satisfied -

1. (a)
   the plaintiff has complied with this part and is entitled to all or part of the relief sought in the statement of claim; and
2. (b)
   the defendant has no defence other than in relation to the amount of the claim; and
3. (c)
   there is no need for a trial of the proceeding.”

1. 10.
   Counsel for the respondents/defendants submits that the rule is analogous to order 20, rule 1 of the Federal Court Rules. It has been noted in relation to order 20, it was submitted, that it is not intended to provide an alternative to trial as the ordinary method of resolving litigation in the court and its function is limited to providing an expeditious means of resolving litigation where the applicant can clearly demonstrate that there is no real defence to a particular claim made by it: per Drummond in J Caterpillar Inc -v- Sun Forward Pty Ltd (1986) 36 IPR 411 at 414:

1. 11.
   For the purposes of this application, one has to consider two questions:

1. (a)
   whether the defendants have no defence to the claim other than the amount of the relief claimed, and
2. (b)
   whether there is no need for a trial of the action.

1. 12.
   It should be noted that the other element which has not been contested in the present application is that the applicant plaintiff has complied with the requirements of the part dealing with summary judgment, and is otherwise entitled to the relief sought in the statement of claim. It is the other questions with which the present application is concerned.

“No defence to the claim”

1. 13.
   The circumstances of this case have been referred to generally. The plaintiff was dipping the level of the petrol storage at the garage. In a letter from the plaintiff's solicitors to the second defendant, the version of events put forward by the second defendant were contested in a letter of the 8th of May 1998 being Exhibit M page 6 to the affidavit of Mr Hickey:

1. 14.
   The amended defence pleads contributory negligence on the part of the Plaintiff. These are matters which can only be tested upon a hearing but for the purpose of this application raise substantial factual disputes.
2. 15.
   Rule 292(2)(b) is similar to the provision in the Supreme Court Rules of the Northern Territory (r 22.02). In dealing with that provision, Asche CJ said:

1. 16.
   Apart from the admission pursuant to s. 41 of the MAIA, counsel for the plaintiff submits that she is entitled to summary judgment on the particular facts of this case. I am not satisfied that she is so entitled. Apart from the formal matters raised by way of contributory negligence, there are factual issues from which one may draw inferences which show, to my mind, that a proper defence has been raised which would require further exploration at trial. An affidavit deposing to such facts is unnecessary given the nature of this particular case. Unlike the former procedure for summary judgment, there is no onus upon the defendants to show cause by affidavit: O18 r 2 of the former Supreme Court Rules.
2. 17.
   Asche CJ referred to the remarks of Barwick CJ in Re: Registered Trade Mark “Certina” (1970) 44 ALJR 191 at 192:

1. 18.
   In applying the principles referred to by both learned Chief Justices, I do not regard this as a clear case. The present factual situation should be closely investigated:

Rule 292(2)(c) - Need for a trial

1. 19.
   It is clear that as discussed, further exploration of the issues will be necessary at trial. There may also be a basis for interrogatories being delivered in this case. It is also a relevant consideration, although not determinative, of the present case that there is a third party proceeding which touches upon the liability between the first defendant as driver of the vehicle and the third party as the employer of the Plaintiff. It is convenient to mention in passing that the allegations concerning the third party are as follows:

1. “(a)
   Failing to provide any or any appropriate barricades around the area where the Plaintiff was working such that a vehicle could not enter the area where the Plaintiff was working or materially reduce the prospect that a vehicle would do so;
2. (b)
   Failing to provide any or any sufficient visual clues by barricades, signs, awnings or otherwise at eye level to a driver seated in a vehicle of the presence of the Plaintiff crouched in the driveway;
3. (c)
   Failing to co-ordinate or properly co-ordinary the Plaintiff's activities and tasks so that the task of “dipping the tanks” occurred at a time when it was less likely that vehicles would be in the vicinity of the area where the Plaintiff was working;
4. (d)
   Failing to supervise the Plaintiff's task of “dipping the tanks” by having a co-worker or another person stationed in the vicinity to warn drivers to avoid the Plaintiff and/or to warn the Plaintiff of any danger caused by drivers of vehicles;
5. (e)
   Failing to have any or any sufficient barricades protecting the point where the Plaintiff was working, a sufficient distance away from the actual point where the Plaintiff was working to enable the Plaintiff to take evasive action in time should a vehicle attempt to cross the line of barricades.”

1. 20.
   Although the existence of a third party notice is not determinative of the issues between the plaintiff and the defendants, it is a fact which one should consider in determining whether a trial of the action is necessary particularly where there are common factual issues which remain to be determined. This is not a case where the only remaining questions of liability to be determined are between the defendant and the third party. Asche CJ in discussing rule 22.06(1)(b) which is similar to rule 292(2)(c) said op.cit. at page 52:

“I can certainly envisage cases where the court should properly refuse relief because the question depends on disputed and properly arguable facts as to the main issue in the third party's involvement therein or the question of damages inextricably intertwined as between the defendant and the third party.”

1. 21.
   For those reasons, in applying the principle referred to by Asche CJ, I am satisfied that there is a need for a trial of the action in the present case. See also Miles -v- Ball (1969) 1 QB 258 at 265-266; Hill -v- Sklivas (1995) 1 VR 599 at 606-607.
2. 22.
   It should be noted at in the Civil and Civic case that Asche CJ thought the question of contributory negligence may have been a reason to refuse summary judgment, but on the facts of that case held that it had not been raised, and there was not even an arguable case of contributory negligence. On the contrary, there were unequivocal admissions of liability: pages 49-50. Also, as submitted by counsel for the defendants, the plaintiff's case may well fail to discharge the burden of showing a breach of standard of care namely that the lookout of the first defendant was defective. The cross-examination of the plaintiff at trial is crucial to the question of contributory negligence.
3. 23.
   It was further submitted by counsel for the defendants that even if judgment is entered for the plaintiff that in the absence of a binding admission, contract or estoppel precluding contributory negligence, contributory negligence may still be pleaded and argued at trial: Von Hoff -v- FAI General Insurance Company Limited (1996) 24 MVR 537; Patomia -v- Carter (1997) 25 MVR 429. That submission is referred to for completeness, but is unnecessary to deal with that submission in light of the previous findings.

Third Party Proceedings

1. 24.
   Leave was given at the hearing to extend the time for compliance with the service of the third party notice which was filed before the defence. This was to allow the third party proceedings to be made regular given the initial objection by counsel for the applicant plaintiff. I also grant leave to file third party notice which was filed on 7th June, 1999. It was filed before the Amended Entry of Appearance and Defence.
2. 25.
   It is submitted that paragraphs 41 and 42 of Mr Peterson's affidavit disclosed some of the prejudice which would accrue to the defendants should the third party proceedings be heard separately. It should be noted that an appearance has been filed on behalf of the third party notwithstanding some difficulty in serving it. Solicitors have now been appointed by WorkCover to act on behalf of the third party. In paragraph 41 of the affidavit of Mr Peterson, it is stated that the proceedings against the third party involve a number of witnesses common to the trial of the action of the Plaintiff. Even if liability in the action of the Plaintiff is not an issue at trial, the Plaintiff is a critical witness on liability in the third party proceedings. The defendants have no objection to the whole action being listed for trial provided that a timetable is put in place to enable the remaining steps between the Plaintiff and defendants, and more particularly the defendant and the third party to be completed. It is submitted that any severance of the third party proceedings would effectively preclude the second defendant compromising quantum with the Plaintiff as it would have to justify any settlement as being reasonable in any separate third party proceeding. Although the word “preclude” is a little strong, it is certainly another factor to be considered.
3. 26.
   The Full Court of Queensland in Re Guyder v Lipscombe, Brisbane Service Motors & Lyons (1966) Qd.R. 24 at 28 stated in considering that party proceedings:-

“The cardinal feature of this scheme of relief is that it takes away from the Plaintiff the right to choose as his target and to make solely liable only one of a number whose tortious acts have contributed to his injury. The control passes to the other side of the record. But the interpretation under review would, whenever circumstances implicate the Nominal Defendant, restrict the amplitude of those relieving provisions and restore to the Plaintiff his right to choose and hold his victim at least to the extent of selecting one other than the Nominal Defendant....There needs to be a compelling reason to bring about this result.”

1. 27.
   I accept that no compelling reason exists in the present case to prevent the third party proceedings being heard with the Plaintiff's claim against the defendant. There is no evidence that significant delay would result in any event.

Orders

1. 1.The application pursuant to Rule 292 of the Uniform Civil Procedure Rules that leave be given for judgment to be given for the Plaintiff against the second defendant is refused.
2. 2.The application pursuant to Rule 202(2) of the Uniform Civil Procedure Rules that the issues between the defendants and the third party be tried separately from the issues between the Plaintiff and the defendants is refused.
3. 3.It is ordered that the applicant/plaintiff do pay the first and second defendants costs to be assessed of this application to be their costs in any event.
4. 4.Liberty to apply for further directions.