Berther v Dragut[2001] QDC 3

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 27 Aug 1998 a plaint claiming damages for personal injuries caused by the negligence of the first defendant together with interest was filed in the District Court. In accordance with the requirements of the Motor Accident Insurance Act 1994, the second defendant, the licensed insurer of the first defendant’s vehicle, was joined as a defendant.   The plaint alleges that the plaintiff suffered injury in a collision on 20 August 1995.  There is nothing to indicate that the plaintiff’s injuries were not caused immediately in the collision. 

2. [2]
   On 20 October 1998, an Entry of Appearance and Defence on behalf of the second defendant was filed. That defence admitted that the collision occurred on 20 August 1995, but did not admit that the plaintiff suffered injury as a result, or that the first defendant was negligent. It is admitted that the second defendant was the licensed insurer of the first defendant’s vehicle at the relevant time. That defence also alleged that the plaintiff’s claim is barred by s. 11 of the Limitation of Actions Act 1974. 

3. [3]
   On 8 January 2001 the plaintiff’s solicitors applied for an order that the paragraph of the defence by which the Limitation of Actions Act was pleaded be struck out pursuant to r. 171 as disclosing no reasonable defence, and on the other grounds referred to in that rule, and seeking further or in the alternative a declaration that the period of limitation did not expire prior to 20 November 1998 or in the alternative prior to 28 August 1998.  When that application came before me it was supported on behalf of the plaintiff with an argument that the limitation period did not begin to run until a notice which complies with s. 37 of the Motor Accident Insurance Act 1994 had been served and there had been some appropriate response on behalf of the licensed insurer under the statute.  That was the only issue which was ventilated on the hearing of the application. 

Procedure

4. [4]
   One difficulty which emerges in circumstances where a court is dealing with an issue such as this, where the court is in effect being asked to decide in advance of the trial what the law is on a particular point, is that an application under r. 171 is not a particularly suitable vehicle, at least in a case where the legal position is not clear. A plea will not be struck out under r. 171 unless it is clearly bad, and unless that is the case a plea which is at least fairly arguable will ordinarily be allowed to stand to be decided at trial. But that is not a convenient course in the present case; if the plaintiff’s claim is statute barred, it is better that the plaintiff know that now rather than go to the trouble and expense of preparing for a trial. No doubt the defendant would also like to know definitely what the situation is in relation to this plea. In these circumstances it is, in my opinion, better for the issue to be decided by the court in advance of the trial pursuant to r. 483(1). When that is done, the court decides whether the defendant’s plea is good, rather whether it is arguably good, or not clearly bad. I therefore ordered on the hearing of the application that the application be amended to seek an order that whether the plaintiff’s claim was statute barred be decided separately prior to the trial, and instanter.  Neither party objected to this course. 

When Did The Limitation Period Begin To Run?

5. [5]
   The plaintiff submitted that the limitation period had not expired when the plaint was filed, because it did not begin to run until after there had been compliance with s. 37 and s. 39(5) of the Motor Accident Insurance Act 1984.  This required the plaintiff to have given notice under s. 37, and for the second defendant to have made some appropriate response.  This submission was made, not on the basis of any authority under that Act, but on the basis that its provisions were similar to those of the WorkCover Queensland Act 1996 and the Safety Rehabilitation Compensation Act 1988 (Cth).  In relation to the former Act, it has been held in Tanks v. WorkCover Queensland [2000] QSC 326 that the limitation period for a claim for damages which was within the scope of that Act did not commence to run until compliance with the prerequisites established in that Act for commencing proceedings to enforce such a claim for damages.  That decision was followed in Craig v. BHP Coal Pty Ltd (Mackay S160/99, Dutney J, 19.10.00, unreported).

6. [6]
   It was submitted that the situation was similar to that which applied under the Commonwealth Act. Reference was made to Austral Pacific Group Ltd v. Airservices Australia (2000) 74 ALJR 1184, where the High Court held that an employee did not have a cause of action against an employer in respect of an action within the scope of that legislation until the employee had made a written election to institute an action or proceeding against the Commonwealth for damages for non-economic loss. 

7. [7]
   Reliance was also placed on the decision of the Court of Appeal in Bonser v. Malnacis & Ors [2000] QCA 13.  In that case an employee injured in the course of his employment had claimed damages in respect to the injury from a party other than his employer, and that party sought to join the employer as a third party on the ground that the injury had been suffered also by the joint or concurrent fault of the employer.  The Court of Appeal held that this course was not open to that party, because the employer was not liable to be sued by the plaintiff because the plaintiff had not complied with the requirements of the WorkCover Queensland Act.  The Court held that the effect of that Act was to abolish any entitlement on the part of an injured worker to commence proceedings against the employer, and such a right comes into existence only upon compliance with the prescribed steps: para. 41.  This decision was relied on as the basis for the conclusion in Tanks (supra)

8. [8]
   It was submitted that s. 37 of the Motor Accident Insurance Act was to similar effect to the provisions of the WorkCover Queensland Act considered in Bonser.  Relevantly, s. 37 provides:

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 … against which the action is to be brought … .”

Section 39 provides:

5. “(5)
   A claimant may bring a proceeding in the 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 lease 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 parts and the claimant has given the insurer written notice that the extent of liability is disputed;  or

2. (b)
   the court, on  application by a claimant dissatisfied with the insurer’s response to the notice of a claim under this division, declares that –

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

3. (c)
   the court gives leave to bring the proceeding despite non-compliance with requirements of this division.”

It has been held that compliance with these provisions is mandatory, so that an action commenced in breach of them will be struck out:  Young v. Keong [1999] 2 Qd.R. 335.

9. [9]
   A number of the provisions of the WorkCover Queensland Act are set out in Bonser.  The key section was said to be s. 253 which 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

2. (ii)
   the worker has sustained a non-certificate injury;  or

2. (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

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

4. (d)
   a dependent of the deceased worker, if the injury sustained by the worker results in the worker’s death. 

2. (2)
   The entitlement of a worker, or a dependent of a deceased worker, to seek damages is subject to the provisions of this chapter. 

3. (3)
   To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.”

10. [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.  I shall return to the significance of s. 57 later. 

11. [11]
    There have been a number of cases dealing with the Motor Accident Insurance Act, and the consequences of failing to give the notice required by s. 37.  In none of those cases however was it said that the effect of the provisions of that Act is that the limitation period does not begin to run until the notice has been given and there has been some appropriate response under s. 39.  Indeed, there have been a number of cases where the contrary has been said or assumed.  In Young v. Keong [1999] 2 Qd.R. 335, Williams J, with whom the other members of the court agreed, said at p. 341:

“It is clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement …”

That is inconsistent with the view adopted in Bonser that legislation there under consideration effected substantive changes to the requirements of a relevant cause of action. 

12. [12]
    More significantly for present purposes is Horinack v. Suncorp Metway Insurance Ltd [2000] QCA 441, a case concerned with the question of whether the notice given in purported compliance of s. 37 was valid and effective. White J, with whom the other members of the Court of Appeal agreed, said at para. 8:

“The period of limitation of three years provided for in the Limitation of Actions Act 1974 in respect of Mrs. Horinack’s personal injury claim expired on 30 January 1999 [ie 3 years after the date on which she suffered the injury].  If her notice of claim complied with the requirements of s. 37 of the Act then the limitation period applicable to her claim, by virtue of s. 57(1) and (2) of the Act was extended to (4) or (6) July 1999.”

Her Honour also said at para. 18:

“Contrary to the submissions advanced on behalf of Ms. Horinack, her application for leave to bring proceedings must be brought within the ordinary limitation period.  That this is so is clear from s. 57 of the Act.”

13. [13]
    Whether or not these statements are part of the ratio of that decision, they are a clear statement by the Court of Appeal that the limitation period runs from the date of the injury, not from the date on which the plaintiff complies with the requirements of s. 57 of the Act, or is excused from doing so.  Indeed, Her Honour’s analysis clearly proceeded on the basis that a claim may become statute barred under the Limitation of Actions Act before it is permissible to bring it under the Motor Accident Insurance Act.  In my opinion, such a conclusion is either binding on me or is so highly persuasive that it would be inappropriate for me to depart from it, and in those circumstances the correct outcome of the application before me is obvious.  If the arguments advanced on behalf of the plaintiff before me are to be upheld, in my opinion that can only be in the Court of Appeal. 

14. [14]
    In those circumstances, it is probably unnecessary for me to say much more as to my own opinion about the operation of the legislation. I will, however, say that my view is that the statements in Horinack which I am following are, with respect, entirely correct.  Both the requirement for notice before action and the operation of the limitation period are products of statute law, and it is therefore a matter for the legislature how these two requirements interrelate, and in particular whether the restriction imposed by the Limitation of Actions Act can begin to operate, notwithstanding that the requirement of the statutory notice before action has not been satisfied.  Ultimately, this is a matter of construction of the statute concerned, relevantly the Motor Accident Insurance Act because that is the later Act. 

15. [15]
    In my opinion, what is of most importance is the indication in that Act that the limitation period can run out prior to the giving of the notice in s. 37, which indication is found in s. 57. That section provides:

1. “(1)
   If Notice of a motor vehicle accident claim is given under Division 3 (claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

2. (2)
   However, 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 is granted. 

3. (3)
   If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under Division  3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the commission.

4. (4)
   After receiving a notice of claim under subsection (3), the commission must make inquiries to decide the insurer against which the claim properly lies, and pass the notice of claim on to the appropriate insurer.

5. (5)
   If a period of limitation is extended under Part 3 (extension of periods of limitation) of the Limitation of Actions Act 1974 , this section applies to the period of limitation as extended under the Part.”

16. [16]
    In my opinion, that section is quite inconsistent with the notion that the limitation period cannot begin to run until after the notice under s. 37 is given. Such construction would deprive subsection (3) in particular of any meaning or operation, and is plainly inconsistent with the general operation of the section as a whole. It necessarily follows, in my opinion, that the legislature has indicated that the way in which the two statutes are to interrelate is that the requirement to give notice under the Motor Accident Insurance Act is not to prevent the limitation period under the Limitation of Actions Act from running. 

17. [17]
    It is not to the point that there is a drafting deficiency in s. 57, in that where it operates because a notice of claim is given before the end of the limitation period, it provides an extension only if the proceeding is brought within six months after the day on which the notice is given;  however, unless the insurer has denied  liability, or admitted liability but only in part, and the claimant has given written notice that the extent of liability is disputed, a claimant is prevented by s. 39(5(a) from bringing a proceeding for damages until “at least six months have elapsed since the notice … was given”.  The extension provided under s. 57 in these circumstances is useless because the limitation period as extended will still expire before s. 59 permits a proceeding to be commenced.  It is, of course, possible that this inconsistency is really only apparent and indicates that there is at least some aspect of the operation of this legislation which I have not fully grasped, but I think it is more likely that the explanation is that this is a drafting deficiency.  I do not consider, however, that the fact that s. 57 has been badly drafted should mean that no effect should be given to the consideration that it is plainly inconsistent with the notion that the limitation period does not begin to run until a notice under s. 37 has been given. 

18. [18]
    I acknowledge that in the cases discussing the WorkCover Queensland Act reference was made to the fact that the construction there adopted led to the conclusion that s. 308, which is similar in its operation to s. 57 although it does not suffer from that particular drafting deficiency, was effectively rendered unnecessary by the construction adopted of the Act.  The Court of Appeal in Bonser expressed reservations about the decision at which it arrived, and clearly working out the true effect of that legislation is a matter of considerable difficulty, including the difficulty involved in giving some proper effect to all of the parts of the Act.  The Court of Appeal has explained how that difficulty is to be resolved in respect of that Act.  It has not yet confirmed that the single judge decisions drawing conclusions as to the interrelationship between that Act and the Limitation of Actions Act are correct. One of the reasons why I think it most appropriate for me to resolve this matter simply by following the statements of the Court of Appeal in Horinack is that this whole area is one of considerable difficulty, and will doubtless only be properly resolved ultimately by the Court of Appeal, if not indeed by the legislature. 

19. [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. 

20. [20]
    I therefore refuse to strike out para. 6 of the defence and refuse to make a declaration sought in the amended application on behalf of the plaintiff, or to declare that the period of limitation did not expire prior to 20 November 1998, or prior to 28 August 1998. It follows that the plaintiff’s claim must fail, being statute barred, and accordingly pursuant to r. 484, the plaintiff’s claim will be dismissed.

21. [21]
    Accordingly, the orders that I make are:

1. A:
   The following question be decided separately in advance of the trial, and instanter: Is the defence in para. 6 of the second defendant’s Entry of Appearance and Defence filed on 20 October 1998 a good defence to the plaintiff’s claim?

2. B:
   That question be answered as follows: Yes

3. C:
   The plaintiff’s claim is dismissed.

4. D:
   The plaintiff pay the costs of the action, including this application, to be assessed.