Johnson v Hill[2001] QDC 205

CITATION: Johnson v. Hill & Anor [2001] QDC 205

PARTIES:

v.

And

And

FILE NO/S: 4836 of 2000

DIVISION:

PROCEEDING: Application

ORIGINATING COURT: District Court Brisbane

DELIVERED ON: 13 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 1 June 2001

JUDGE: Shanahan DCJ

ORDER: The defendants are granted leave to file a third party notice and Statement of Claim directed to the Nominal Defendant

CATCHWORDS:

TORTS - law of torts generally - contribution - statutory interpretation - joining the nominal defendant as a tortfeasor - Law Reform Act 1995 (Qld) s. 6(c) - Motor Accident Insurance Act 1994 (Qld) s. 29, s. 34, s. 37, s. 39, s. 52(A)

Bonser v. Melnacis & Anor [2000] QCA 13

Austral Pacific Group Ltd v. Airservices Australia (2000) 74 ALJR 1184

Brambles Constructions Pty Ltd v. Helmers (1966) 114 CLR 213

Commonwealth of Australia v. Flaviano (1996) 40 NSWLR 199

Tanks v. WorkCover Queensland [2001] QCA 103

Young v. Keong [1999] 2 Qd.R. 335

Horinack v. Suncorp Metway Insurance Limited [2000] QCA 441

Brannigan v. Nominal Defendant [2000] 2 Qd.R. 116

Re: Guyder v. Lipscombe, Brisbane Service Motors and Lyons [1966] Qd.R. 24

QBE Insurance Limited v. The Nominal Defendant [2001] 1 Qd.R. 319

Berther v. Dragut and Anor, Plaint 3713/98, District Court Brisbane, 2 February 2001 (unreported)

Mathieson v. Workers' Compensation Board of Queensland [1990] 2 Qd.R. 57

2. [1]
   This is an application by the defendants that leave be granted to file a third party notice and Statement of Claim directed to the Nominal Defendant.

2. [2]
   The relief sought in the third party notice is for tortfeasor contribution pursuant to s. 6(c) of the Law Reform Act 1995. That provides, as here relevant,

2. [3]
   The first defendant collided into the rear of a motor vehicle driven by the plaintiff on 7 February 1998 and the plaintiff was injured as a result. The second defendant was the compulsory third party insurer of the vehicle driven by the first defendant, under the (Motor Accident Insurance Act 1994 (“the 1994 Act”)). The collision apparently occurred when the plaintiff braked and stopped suddenly to avoid a collision with a vehicle travelling into the plaintiff's path from the opposite side of the roadway. That vehicle has not been identified.

2. [4]
   In order to issue a claim against the Nominal Defendant, a plaintiff must give notice within three months of a motor vehicle accident (s. 37(3) 1994 Act). If a notice is given after that period, it must contain an explanation for the delay and must be given within nine months of the accident. If a compliant notice is not given with in that time, the claim against the Nominal Defendant is barred (s. 37(4)). It is not possible for the Nominal Defendant to waive these provisions, or for a court to give leave to bring a proceeding in court despite the non-compliance (s. 39(8)).

2. [5]
   The chronology of events after the accident are:

The Nominal Defendant's Opposition to the Application

2. [6]
   The Nominal Defendant submits that the absence of effective notification to it by the plaintiff prevents the second defendant from claiming contribution and indemnity. It is submitted that for the purpose of s. 6(c) of the Law Reform Act 1995, there never was or never will be a point in time at which the Nominal Defendant could be said to be a person “who is, or would if sued have been, liable”, in respect of damages for the plaintiff's injury. The respondent relies on decisions made with respect to the WorkCover Queensland Act 1996 (Bonser v. Melnacis & Anor [2000] QCA 13) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Austral Pacific Group Ltd v. Airservices Australia (2000) 74 ALJR 1184) in support of its argument.

2. [7]
   Alternatively, the respondent submits that no claim for contribution is available by the operation of s. 52A(1) of the 1994 Act because, in the absence of invoking s. 52A(2), the Nominal Defendant is not a tortfeasor for the purposes of the Law Reform Act 1995. It submits that s. 52A(2) is not invoked by the facts of this case or otherwise.

Effect of the Scheme Under the 1994 Act

2. [8]
   In relation to the first argument, the respondent accepts that it is a tortfeasor for the purposes of s. 6(c) Law Reform Act 1995. To found the third party claim for contribution, it must be established that the Nominal Defendant was an entity which “is, or would if sued have been, liable in respect of” the damage claimed. That is, there must have been a point in time at which the tortfeasor could have been sued (Brambles Constructions Pty Ltd v. Helmers (1966) 114 CLR 213). It is submitted that where a statutory provision precludes an injured person from effecting recovery proceedings to seek damages, or the person moving to start proceedings for damages until pre-proceeding steps have been exhausted, there is no time that such a person could have sued a tortfeasor so as to enable a claim for contribution against that tortfeasor by another tortfeasor rightly sued by the plaintiff.

2. [9]
   The respondent submits that an analogous situation exists under the WorkCover Queensland Act 1996. That Act contains various sections precluding a worker proceeding against an employer in Queensland for a claim for damages until various steps have been taken. Section 302 of that Act provides that a claimant may start a proceeding in a court for damages only if the claimant has complied with various prescribed steps. The respondent referred to recent decisions in relation to that Act concerning the right to seek indemnity or contribution from joint or several tortfeasors.

2. [10]
   In Bonser v. Melnacis & Anor [2000] QCA 13, the plaintiff was injured when struck by a motor vehicle whilst in the course of his employment. An action was commenced against the driver of that vehicle and the licensed insurer of the vehicle. The plaintiff took no steps against his employer by complying with the provisions of the WorkCover Queensland Act 1996. The defendants issued a summons seeking leave to issue a third party notice against the plaintiff's employer. The employer resisted the application on the basis that it was not caught within s. 6 of the Law Reform Act 1995 as it could not be sued by the plaintiff because he had not complied with the requirements of the WorkCover Queensland Act 1996. The judge at first instance refused to issue the third party notice. On appeal, the Court of Appeal found that the scheme introduced by the WorkCover Act effectively abolished any entitlement on the part of an injured worker to commence proceedings against the employer and that that right came into existence only upon compliance with the prescribed steps. The court, with some reservations, concluded that the submission that the employer had no “liability” to the plaintiff which could support a claim by a third party for contribution under s. 6(c) of the Law Reform Act, had to be accepted. The court reviewed various decisions under other statutory schemes, in particular Commonwealth of Australia v. Flaviano (1996) 40 NSWLR 199 and Airservices Australia v. Austral Pacific Group Ltd (1998) 157 ALR 125. In relation to those authorities, the court stated:

The court noted at para. [34],

2. [11]
   Section 253 in Chapter 5 of the WorkCover Queensland Act 1996 provides:

1. “(1)
   The following are the only persons entitled to seek damages for an injury sustained by a worker

1. (a)
   The worker, if the worker has received a notice of assessment from WorkCover stating that -

1. (i)
   The worker has sustained a certificate injury; or

1. (ii)
   The worker has sustained a non-certificate injury; or

1. (b)
   The worker, if the worker's application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or

1. (c)
   The worker, if the worker has not lodged an application for compensation for the injury; or

1. (d)
   A dependent of the deceased worker, if the injury sustained by the worker results in the worker's death.

“The ratio is in my respectful view found in para. 41 of the reasons for judgment where it is said:

‘We should therefore accept the respondent's employer's submission that the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s. 253, s. 262 and s. 302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps’.”

1. [53]
   Critically, that passage does not say the cause of action is abolished; all that is affected is the right to “commence proceedings”, that is to sue.
2. [54]
   Counsel for the respondent in this case placed emphasis on the use therein of the word “abolishes”, the term taken from s. 253 itself. In the section it is clear that what is abolished is not the cause of action existing independently of the Act, but rather the entitlement to seek (sue for) damages flowing from such cause of action. In the passage from the judgment in Bonser the term must carry that same meaning. What is abolished is the right to sue for damages unless the provisions of the Act are complied with. The cause of action continues in existence, though not enforceable by action until the statutory conditions are satisfied. If the limitation period expires before that is done, the abolition is complete. Pending compliance, the cause of action is suspended and the worker cannot sue on it. Once that is appreciated, it is clear that the employer in Bonser was not someone who could have been sued by the injured plaintiff and therefore the defendant was not entitled to join the employer as a third party. Some may think such a conclusion to be odd, but that is not the only oddity associated with the legislation in question.”

1. “[32]
   However, the election required by s. 45 of the Compensation Act is more than the giving of a notice which is a condition precedent or necessary antecedent step to the maintenance of an action or the issue of initiating process. As indicated earlier in these reasons, s. 44 is provision going, to adapt the words of Dixon J in Harding v. Lithgow Corporation (1937) 57 CLR 186 at 192), ‘to the validity of the title to enforce the liability’ not merely ‘to the mode of enforcing it, or the fulfilment of a preliminary procedural condition’.”

2. “37.

1. (1)
   Before bringing 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 one of the insurers, against which the action is to be brought -

1. (a)
   containing a statement, sworn by the claimant, of the information required by regulation; and
2. (b)
   containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot be made; and
3. (c)
   accompanied by the documents required by regulation.

1. (2)
   The notice must be given within nine months after the motor vehicle accident or the first appearance of symptoms of the injury.
2. (3)
   However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within three months after the motor vehicle accident.
3. (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 the motor vehicle claim relates to an 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 nine months after the motor vehicle accident, the claim against the Nominal Defendant is barred.”

1. (5)
   A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if -

1. (a)
   the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this division or the insurer has waived compliance with the requirement and -

1. (i)
   at least six months have elapsed since the notice or the waiver was given; or
2. (ii)
   the insurer has denied liability on the claim; or
3. (iii)
   the insurer has admitted liability but only in part and the claimant has given the insurer written notice that the extent of liability is disputed; or

1. (i)
   notice of claim has been given as required under this division; or
2. (ii)
   the claimant is taken to have remedied non-compliance with this division; or

1. “[15]
   It may therefore be seen that the legislature saw claims for damages in respect of unidentified vehicles as falling into a special category justifying an even stricter regime, a regime less accommodating of laxity or other non-compliance on a claimant's part, more ‘supportive’, of the Nominal Defendant as the relevant insurer. The reasons for this are obvious enough, principally the prime need for the earliest possible investigation of the circumstances of the alleged accident and seeking out the allegedly negligent other driver, and more broadly the prevention of fraud. In these particular cases, there is effectively no capacity for extension of the nine month cut off limitation, and the requirement for the required notice within that period is apparently inflexible.”

“The Nominal Defendant invokes the limitation which the Act gives him. In my view the limitation clause, 4F(4)(a), cannot be applied directly to the claim of a joint tortfeasor against the Nominal Defendant for contribution. In its original context it could only have applied to claims for damages by an injured person against the Nominal Defendant. But then subsection (3A) came in as part of s. 4F and made room for the suggestion that the words of limitation ‘shall not be liable in respect of any claim made to it under this section’ apply also to a joint tortfeasor's claim for contribution from the Nominal Defendant, treating it as a ‘claim under this section’. At this point it must be recalled that in Genders' case (1959) 102 CLR 363, the majority judgment identified the liability of one joint tortfeasor to relieve the burden of the other by contribution as ‘a liability to pay compensation for the same loss and damage and that loss and damage is in respect of the death of or bodily injury to a person caused by or arising out of the use of the insured motor vehicle’, (at pp. 379-380). This does not, in my view, detract from the force of the opinion of Fullagar J and Taylor J in Unsworth v. Commissioner for Railways (1958) 101 CLR 73 at pp. 86 and 91 respectively, that a claim for contribution by one joint tortfeasor against the other is not ‘an action to recover damages in respect of personal injury’. In Genders' case (supra) the reasoning of the majority from p. 377 to the foot of page 379 and that of Menzies J at pp. 386-7 show that the point at issue was whether the third party policy covered the joint tortfeasors' liability to make contribution. To recognise that a liability to contribute to the payment of compensation for loss or damage is a liability in respect of the bodily injury of a person, against which indemnity is required by the Act and conferred by the statutory policy, is not to say that the proceeding by which that contribution is enforced is an action to recover damages in respect of the bodily injury. A tortfeasor's claim for contribution must, on the authority of Genders' case, be recognised as a claim ‘in respect of’ the death or injury to which it is a sequel and therefore I cannot accept the contrary view of the learned judge of first instance.

Nevertheless, it is clear that the ‘claim’ referred to in the introductory words of subsection (3A) is not a claim for contribution between tortfeasors. The claim referred to is that of, or on behalf of, the victim of a delictual act on the cause of action for damages which subsections (2) and (3) give him against the Nominal Defendant, and to this extent I share the view of the learned judge.

It is to that sort of liability that the limitation of subsection (4)(a) should in my opinion be confined notwithstanding that the liability of the Nominal Defendant to make contribution may be construed as a liability ‘in respect of a claim made to it under this section’. A consideration of the whole provision for limitation, including the machinery for obtaining relief from its burden, shows that it is quite unworkable if applied to a tortfeasor's claim against the Nominal Defendant for contribution. This is particularly apparent if one attempts to apply paras, (b) and (c) of subsection (4) and subsection (5) to such a claim.

The Nominal Defendant claims protection in another way, and this is his main argument. He submits that subsection (3 A) is not available for the relief of the other tortfeasor unless the injured person has made his claim for damages against the Nominal Defendant or notified him of his intention to do so within the prescribed limitation or a permitted extension thereof. This is said to be the implication of the use of the word ‘enforced’ in the description of the claim in subsection (3 A), in conjunction with the words of s. 5(c) of the Law Reform Act ‘or would if sued have been liable’. It is argued that an injured person's claim against the Nominal Defendant to recover damages under subsections (2) or (3) cannot be ‘enforced’ unless there has been compliance with the limitation provisions, and that consequently the joint tortfeasor's right of recourse to him for contribution is restricted to cases in which there has been such compliance. The proposition relies upon the controversial judicial view that the right to recover contribution involves a temporal connotation.”

“The Supreme Court of New South Wales has decided, and in my respectful opinion, correctly, that the claim of the tortfeasor for contribution is a cause of action apart from and independent of the cause of action which the injured party has or would have had against the tortfeasor from whom contribution is sought, and that the failure of the injured party to take formal steps such as the giving of notice of action to the tortfeasor from whom contribution is sought is an irrelevant circumstance in the action between the one tortfeasor and the other tortfeasor for contribution: Nickels v. Parks (1948) 49 SR(NSW) 124.

“An essential feature of the reasoning is that the employee is not to be able to defeat the right to indemnity by his own action or inaction. The right to indemnity is independent of the action or inaction of the employee and is a right directly against the wrongdoer ... Nonetheless, in my judgment, the reasoning is equally applicable when it is borne in mind that the Nominal Defendant is made available by the legislation to satisfy the legal liability of the owner, that cause of action being an ingredient of the cause of action against the Nominal Defendant ... where a legal responsibility in another person for the compensable injury or death is established, the failure thereafter of the injured worker or his dependents to institute or prosecute proceedings for the recovery of damages cannot affect the Board's right to indemnity ... It follows that the fact that the worker's claim for damages becomes statute-barred says nothing to the right of the Board to indemnity”.

“The question is whether legal liability in the Nominal Defendant existed at any time ... The textual differences which are apparent on a reading of s. 4F(2) and s. 4F(4)(a) at first sight lends support to the view that the former provision does no more than permit the making of a claim and the institution of an action against the Nominal Defendant as that liability in respect of such a claim is not to arise unless the claim is made or notice of intention to make it is given within the time limited. There can, however, be no substance in such a contention. To permit a claim to be made against the Nominal Defendant postulates that liability is recognised to exist if the vehicle was uninsured ... It follows that s. 4F(4)(a), in stating that the Nominal Defendant shall not be liable unless a claim is made or the notice is given within the stipulated period, is really providing that the liability shall cease in that event”.

“I agree with Connolly J. that the section referred to enacts a limitation of liability by providing a time within which the claim must be made, or notice of intention to make it be given, and that it does not impose a condition essential to the creation of liability; in other words, failure to make the claim or give the notice within the 1 limits defined by the section defeats a liability which previously existed.

Such a construction accords with that placed on the section by the Full Court in Guyder v. Lipscombe, Brisbane Service Motors and Lyons; Brisbane Service Motors v. The Nominal Defendant (Queensland) [1966] Qd.R. 24. In my view the construction contended for by the first defendant would be irreconcilable with the approach adopted by the Court in that case and that, in my view, is an added reason for now rejecting it”.

“52A. (1) This section applies if-

1. (a)
   the Nominal Defendant is one of two or more insurers liable on a motor vehicle accident claim; and

2. (b)
   the claim is not a claim in relation to which the insurers are, under the industry deed and within the time stated in the deed, required to resolve questions about -

1. (i)
   which insurer is to be the claim manager; and

   2. (ii)
      the basis on which claim losses are to be shared between the insurers.
   3. (2)
      For the recovery of contribution by or from the Nominal Defendant, the Law Reform Act 1995, Part 3, Division 2, applies as if the Nominal Defendant were a tortfeasor.

1. [5]
   In the court below attention was focused on the expression in s. 52A(1) ‘liable on a motor vehicle accident claim’ and it was held that the provisions of S. 52A came into effect when that liability arose. That was, in our respectful opinion, incorrect. The cause of action which is created by, or whose existence is made clear by, s. 52A(2) is not that dealt with in s. 52A(1), but the claim for contribution, a cause of action which does not accrue until judgment or compromise.
2. [6]
   A further point which was argued is that QBE had failed to give the appropriate notice under s. 37(5) of the 1994 Act. The learned primary judge read this section as destroying the claim for contribution. In our opinion that is not so. Section 37(5) has nothing directly to do with any claim for contribution.
3. [7]
   It is true that it has been held that failure by a person claiming damages for personal injuries to give notice of claim to the insurer under s. 37(1) causes an action brought at the time mentioned in that subsection to be a nullity: Young v. Keong [1999] 2 Qd.R. 335, but that authority has no bearing upon s. 37(5). Young v. Keong would be a useful analogy only if s. 37(5) in some way tied the giving of the notice to the bringing of a claim for contribution; it does not do so, either expressly or implicitly.
4. [8]
   Another reason for holding, as we do, that s. 37(5) does not affect any claim for contribution is that, if it did, then it would prevent a claim for contribution in instances in which the insurer given the notice of the claim had at first no knowledge that any other motor vehicle was involved in the accident. For example, an injured pedestrian might ascribe his injury to vehicle A which struck him and it might turn out that it did so partly because it was caused to swerve by vehicle B. If the plaintiff's claim blamed the driver of a certain vehicle, the insurer of that vehicle may not be able within seven days, or indeed a longer time, to ascertain that another motor vehicle was involved.

1. “[10]
   In my opinion, the terminology used in the WorkCover Queensland Act is significantly different from that used in the Motor Accident Insurance Act, where there is nothing to indicate that the cause of action is abolished unless and until the statutory pre-conditions for commencing proceedings are satisfied. It seems to me that it is the comparison between the relevant operative provisions of the two statutes which is more important than a comparison between s. 57 of the Motor Accident Insurance Act and s. 308 of the WorkCover Queensland Act.

...

1. [19]
   There is another distinction between the WorkCover Queensland Act and the Motor Accident Insurance Act; the former legislation is a Queensland example of workers' compensation legislation, which has been in force throughout Australia, including to some extent Commonwealth legislation, for many years. A common feature of that legislation is that it provides benefits to injured workers which are independent of any entitlement to sue at common law, and therefore has to grapple with the question of the interrelationship between the statutory benefits and any entitlement. Those statutes have uniformly rejected the notion that the injured worker should receive both statutory compensation and common law damages, assessed as if compensation had not been paid, and various mechanisms have been put in place in different legislation at different times to prevent what is seen as a process of double compensation. To some extent the statutory provisions which are considered in Bonser, and in authorities in other States referred to in that case, or relied on by the plaintiff, are concerned with or influenced by an attempt to deal with the relationship between these two schemes for compensating injured workers. The various attempts to prevent double compensation under these schemes have had a range of effects on the drafting of this legislation; this consideration is not present and necessarily had no effect on the drafting of the Motor Accident Insurance Act 1994 . That provides a feature which helps to distinguish that Act from the workers' compensation legislation, including the WorkCover Queensland Act.

“Clause 28 inserts a new s. 52A to clarify the position of the Nominal Defendant under the Law Reform Act 1995. The Nominal Defendant is established as a body corporate but it is not given the status of a tortfeasor for the purpose of recovery of contribution between defendants. This has created a legal barrier for insurers and the Nominal Defendant with respect to recovery of contribution. Under the industry deed, forming part of the legislation, there is a mechanism for contribution between insurers but this mechanism is not applicable to all circumstances and claims outside the scope of the deed will need to be determined by the courts. At present, there is no power in the courts to apportion liability between the Nominal Defendant and involved insurers.

The amending provisions adopts a similar provision to that which applied under the former legislation (Motor Vehicle Insurance Act 1936)”.