Thorburn v BBC Hardware[2001] QDC 51

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured on 2^nd February 1996 whilst working for the defendant, BBC Hardware. It appears that there had been a period of heavy rain and he drove the defendant’s Isuzu truck through a washout on the road. The truck bottomed out, and the seat upon which he was sitting collapsed thereby causing injury.

On 14^th April 1998 the plaintiff commenced a claim for personal injuries against the defendant. Proceedings were also served at that stage on WorkCover Queensland (hereafter “WorkCover”). The conduct of the defence was then assumed by WorkCover. An entry of appearance and defence was filed on behalf of and in the name of the defendant by WorkCover on the 4^th February 1999. This was later amended on 29^th June 1999. On 26^th May 2000 the defendant was advised by WorkCover that it was withdrawing its indemnity from the defendant under the WorkCover Queensland Act 1996, as it was of the view that the Motor Accidents Insurance Act 1994 applied to this case and therefore WorkCover was not liable for the injuries sustained. On 2^nd February 1999 WorkCover, on behalf of the defendant, served Suncorp with a third party notice in relation to the plaintiff’s claim. The statute of limitations in relation to this matter expired on 3^rd February 1999. On 4^th February 1999 WorkCover, on behalf of the defendant, filed an entry of appearance and defence alleging that the plaintiff’s action was barred by a reason of non-compliance with the provisions of Motor Accidents Insurance Act 1994. The first attempt by the plaintiff to comply with Motor Accidents Insurance Act 1994 took place on 4^th August 2000, when the plaintiff filed a notice of claim with Suncorp pursuant to s. 37 of the Motor Accidents Insurance Act 1994.

2. [2]
   As a consequence of the above a number of applications were brought in this court:

1. the plaintiff applied to the Court for orders:

1. (a)
   that leave be granted to include Suncorp Metway Insurance Ltd as second defendant pursuant to rule 69(1)(b)(i) of the Uniform Civil Procedure Rules 1999; and

2. (b)
   that leave be given to issue proceedings nunc pro tunc against Suncorp Metway Insurance Limited, despite non-compliance with division 3 of the Motor Accidents Insurance Act 1994 pursuant to Section 39(5)(c) of the Motor Accidents Insurance Act 1994 (Qld).

2. the defendant has applied to the Court for the following orders:

1. (a)
   that all times to enable the hearing of the applications herein be abridged pursuant to Rule 7 of the Uniform Civil Procedure Rules 1999;

1. (a)
   that the proceedings between the plaintiff and the defendant be struck out as failing to reveal a reasonable cause of action pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999;

3. (c)
   that alternatively to (b) the defendant be granted summary judgment on the ground that it has a defence to proceedings between the plaintiff and the defendant pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999;

4. (d)
   that alternatively to (b) and (c) that the defendant be granted leave to file and serve a third party notice and statement of claim against WorkCover pursuant to Rule 194 of the Uniform Civil Procedure Rules 1999.

3. the third party applied to the Court for the following orders:

1. (a)
   that there be judgment for the third party against the defendant pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999 for its standard costs of and incidentals to the third party proceedings to be assessed on the grounds that:

1. (i)
   there is no reasonable cause of action disclosed in the third party proceedings;

2. (ii)
   the third party proceedings are frivolous and an abuse of the Court’s process;

3. (iii)
   the third party has a clear defence to such proceedings.

2. (b)
   that alternatively there be directions with respect to the further conduct of the third party proceedings.

3. [3]
   The defendant’s application was opposed by WorkCover Queensland on the basis that the injury was sustained as a result of a motor accident under the Motor Accidents Insurance Act and therefore the WorkCover Queensland Act 1996 does not apply.

Leave nunc pro tunc

4. [4]
   The first question that requires resolution in this matter is whether the Court has power to give leave to the plaintiff to issue proceedings nunc pro tunc pursuant to s. 39(5)(c) and s. 57 of the Motor Accidents Insurance Act 1994.

The Motor Accidents Insurance Act 1994 is an Act to provide for a compulsory third party insurance scheme covering liability for personal injury arising out of motor vehicle accidents and for other purposes. The objects of the Motor Accidents Insurance Act 1994 are outlined in s. 3 of the Act and include:

“(a)  to continue and improve the system of compulsorythird party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland; and …

(c)  to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.”

A motor vehicle accident is defined in s. 4 of the Motor Accidents Insurance Act 1994 as:

“an incident in which personal injury is caused by, through or in connection with a motor vehicle.”

Section 5 of the Motor Accidents Insurance Act 1994 provides:

“1.   This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if the injury –

1. (a)
   is a result of –

1. (i).
   the driving of a motor vehicle; or
2. (ii).
   a collision, or action taken to avoid a collision, with the motor vehicle; or
3. (iii).
   the motor vehicle running out of control; or
4. (iV).
   a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

2. (b)
   is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.”

5. [5]
   The Motor Accidents Insurance Act 1994 establishes a duty to notify the insurer if personal injury arises from a motor vehicle accident (s. 34), to provide information in relation to the accident (s. 35), and a duty to advise the insurer of any claims as a result of his/her personal injury arising out of the motor vehicle accident (s. 36). Furthermore the Motor Accidents Insurance Act 1994 bars an action being brought in Court for damages for personal injury arising out a motor vehicle accident unless the claimant has given written notice of the claim to the insurer against which the action is to be brought (s. 37(1)). The notice must be given within nine months after the motor vehicle accident or first appearance of the symptoms of the injury (s. 37(2)) and, if outside nine months then the notice must also contain an explanation of the delay (s. 37(4)).

Section 39(5) states:

“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

2. (b)
   the court, on application by a claimant dissatisfied with the insurer’s response to a 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 noncompliance with this division; or

3. (c)
   the court gives leave to bring the proceeding despite noncompliance with the requirements of this division.

6. [6]
   Section 52(1) of the Motor Accidents Insurance Act 1994 states:

“If an action is brought in a court for damages for personal injury arising out of a motor vehicle accident, the action must be brought against the insured person and the insurer as joint defendants.”

7. [7]
   Section 57 of the Motor Accidents Insurance Act 1994 states:

“(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.”

8. [8]
   There have been a number of decisions dealing with whether leave can be granted nunc pro tunc in the situation where there has been non-compliance with the notice provisions under the Motor Accidents Insurance Act 1994. In Hardacre v Johnson, Queensland District Court, No. 5102 of 1997 (27^th January 1998), Forde D.C.J. granted leave nunc pro tunc on an application under s. 39 of the Motor Accidents Insurance Act 1994 where notice had not been served at all in a claim for loss of consortium. In Jenkins v Clark, Queensland District Court, No. 4433 of 1997 (29^th January 1998), Botting D.C.J. granted leave to proceed nunc pro tunc in the situation where a plaint was filed on 16^th October 1997 the limitation period expired on 21^st October 1997 and on 8^th November 1997 a s. 37 notice was served on Suncorp. In Leyshon v Sekulla, Queensland District Court, Plaint No. 193 of 1998 (4^th September 1998), Boulton D.C.J. granted leave nunc pro tunc where proceedings were commenced within the time limit and a s. 34 notice under the Motor Accidents Insurance Act 1994 was forwarded to the insurer within the statutory time limit. Leave was also granted in the Supreme Court in McKelvie v Page (1999) 2 Qd R 259. In that case the motor vehicle accident occurred on 27^th July 1995. A writ was issued in July of 1998 against the defendant and s. 34 and s. 37 notices were also given before the expiration of the limitation period. Finally, in McCauley v Tradelink Plumbing Suppies, Queensland District Court No. 2666 of 1998 (5^th February 1999), Brabazon Q.C., D.C.J. following the decisions of Hardacre v Johnson and McKelvie v Page granted leave nunc pro tunc in relation to a s. 35 application. In that case the injury occurred on 16^th November 1995. A notice under s. 37 was served on 16^th August 1996, without an explanation for delay. The plaint was filed on 23^rd June 1998 and the application under s. 39(5) was filed on 6^th November 1998. Therefore all steps were taken within the limitation period.

9. [9]
   Since these decisions however the weight of judicial opinion appears to have moved away from granting leave nunc pro tunc. This is demonstrated in the cases of Cooling v Nelson 2 Qd R (1999) 231 where White J. held that, where notices were not given under the Motor Accident Insurance Act 1994 and an application was not made under s. 39(5)(c) before the expiration of the period of limitation, the applicant was not entitled to and could not be granted leave nunc pro tunc. At p. 234 her Honour noted:

“Sections 37(1) and 39(5) are in terms mandatory, Young v Keong (1999) 2 Qd. R. 335. Similar provisions in New South Wales have been held to be mandatory and in the absence of an order legal proceedings cannot be commenced where there has been non-compliance. Hill v Boult (1992) 28 N.S.W.L.R. 329 per Kirby P. at 331 and Priestley J.A. at 336; Serhan v Serhan (1996) 24 M.V.R. per Mahoney P. at 7 and Clarke J.A. at 6. Both cases were cited with approval in Young v Keong per McPherson J.A. at 336 and Williams J. at 339. It follows then that the writ issued on 21 October 1997 is of no legal effect.

The question is may the court give leave to bring a proceeding in a court despite non-compliance with the requirements of the Act in the circumstances of this case? The discretion in s. 39(5)(c) is limited in my view by the provisions of s. 57. At the least a notice of claim or an application for leave to bring a proceeding must be brought before the end of the period of limitation applying to the claim, s. 57(1). There is no reduction in the period allowed under the Limitation of Actions Act 1994 because notice can be given on the last day of such period, to preserve the entitlement. The six months waiting period required by s. 39(5)(a)(i) can elapse and then the proceedings may be brought. Subsection (3) takes account of last minute instructions, as would seem to have occurred here, by permitting notice to be given to the Motor Accident Insurance Commission where a claimant is unsure of the identity of the licensed insurer”

In Bryant v Queensland Rail [2000] QSC 81 (13^th April 2000), the plaintiff was injured on 23^rd April 1995. A writ was issued on 15^th April 1998. The plaintiff did not comply with the requirements of s. 37(1) of the Motor Accidents Insurance Act 1994 before issuing a writ. In that case Muir J. followed the reasoning of White J. in Cooling v Nelson & Ors and held:

“… in my view the clear purport of s. 57(2) is to prevent the bringing of proceedings after the expiration of limitation periods unless the notice of claim is given within the limitation period. An exception to this restriction is provided for in s. 57(5) which permits a limitation period to be extended by application under Part 3 of the Limitation of Actions Act 1974. No such application was made.”

10. [10]
    In The White Group International Limited v Suncorp General Insurance Limited (2000) QDC 037, Samios D.C.J. followed the decisions of Cooling v Nelson, Young v Keong and declined to grant leave nunc pro tunc in relation to a motor vehicle accident where notice under the Motor Accidents Insurance Act 1994 was not served within the limitation period.

11. [11]
    In my opinion the question has been decisively answered in Horinack v Suncorp Metway Insurance Limited [2000] QCA 441 (and affirmed in Peter John Sweeney v Volunteer Marine Rescue Currumbin Inc Defendant & Ors [2000] QCA 455, 6^th November 2000). Here the court held that where an action is sought to be commenced upon application of s. 39(5)(c) of the Motor Accidents Insurance Act 1994 the application for leave to bring proceedings must be brought within the ordinary limitation period. In the leading judgement White J. stated at [20]:

“It follows that s. 39(5)(c) does not confer a general discretion on a court to give leave to bring a proceeding in a court despite non-compliance. If the application to do so is brought outside the period of limitation, there is, therefore no basis as a matter of construction for making such an order nunc pro tunc and it follows that the statement in McKelvie v Page (1999) 2 Qd. R. 259 that “leave can be granted nunc pro tunc cannot stand.”

In the present case no notice was given before the expiration of the limitation period and no application to bring proceedings was made before the expiration of the limitation period. Accordingly there are no legal proceedings on foot in relation to the motor vehicle accident and leave cannot be granted nunc pro tunc. The application by the plaintiff is refused.

12. [12]
    It follows from this decision that if the incident during which the plaintiff was injured is in fact a motor vehicle accident within the meaning of the Motor Accidents Insurance Act 1994 then it must fail because of failure to comply with the notification provisions of the Motor Accidents Insurance Act 1994 (s. 52).

Application for summary judgement

13. [13]
    The defendant applies to have the proceedings struck out or summary judgment granted on the grounds that there is a defence to the proceedings or alternatively that the defendant be granted leave to file and serve a third party notice and statement of claim against WorkCover.

14. [14]
    The case for the plaintiff is that he was driving the Isuzu truck when the driver’s seat in which he was sitting collapsed and fell to the floor causing him to fall off the seat.

15. [15]
    It is said that the injuries were caused by the negligence of the defendant in:

1. (a)
   failing to design, provide and maintain a safe system of work;

2. (b)
   failing to provide and maintain a safe workplace;

3. (c)
   failing to provide and maintain safe plant and equipment;

4. (d)
   failing to have any proper or adequate regard for the safety of the plaintiff when a reasonably prudent employer would do so;

5. (e)
   failing to perform any or any proper or adequate inspection as to whether the driver’s seat of the said Isuzu was loose;

6. (f)
   failing to repair and/or secure the driver’s seat of the said Isuzu in the circumstances where it knew or ought to have known that the seat was loose;

7. (g)
   failing to provide the plaintiff with a vehicle which was free from defect for the purposes of delivering timber and hardware; and

8. (h)
   causing, permitting or allowing the plaintiff to drive a vehicle which was not free from defect.

In order for the plaintiff to succeed against the defendant the plaintiff will have to prove that the provisions of the Motor Accidents Insurance Act 1994 do not apply and that the injury is not as a result of the driving of the Isuzu truck or as a result of a defect in the motor vehicle causing loss of control of the vehicle while it was being driven.

16. [16]
    It is said on behalf of the plaintiff that the defect to the seat was such that the seat would have collapsed whether the vehicle was in motion or whether the employee was simply sitting in the stationary vehicle. Whether that can be proven to the requisite standard is a matter of fact to be determined at trial. Clearly if there is no reliable evidence that can be called to prove that proposition and that the employer had some knowledge or should have had some knowledge of that fact then the plaintiff will not succeed and the defendant will not be liable.

17. [17]
    This is not a case in my opinion where summary judgment should be allowed. There is a triable issue that needs to be addressed. I agree that the present case is distinguishable from Evans v Transit Australia Pty Ltd 2000 QDC 39 because it involves a single incident rather than an accumulation of incidents. If the plaintiff can establish that injury occurred in circumstances that are not covered by the Motor Accidents Insurance Act 1994 then the defendant is entitled to be indemnified by WorkCover. In these circumstances it is appropriate that the defendant be granted leave to file and serve a third party notice and statement of claim against WorkCover.

Costs

18. [18]
    As to the question of costs, it appears that the plaintiff took his application because the defendant chose to join the third party to the action. Prior to that action the plaintiff did not intend to join Suncorp and was content to proceed against the defendant. The defendant did not seek to join the third party to the action. WorkCover did that, and then withdrew its indemnity from the defendant. In my opinion, WorkCover was wrong to do so and was the one party responsible for these applications coming before the Court. The third party is entitled to its costs as it has been successful in its application. The defendant has been unsuccessful in its application for judgment against the plaintiff. The defendant should pay the costs of the plaintiff and the third party. WorkCover should indemnify the defendant against these costs.

Orders

The order of the Court is:

1. (a)
   the plaintiff’s application to join the third party as second defendant and issue proceedings nunc pro tunc is refused;

2. (b)
   the defendant’s application for abridgement of time is granted;

3. (c)
   the defendant’s application to strike out proceedings or alternatively for summary judgement is refused;

4. (d)
   the defendant is granted leave to file and serve a third party notice and statement of claim against WorkCover Queensland;

5. (e)
   the third party’s application for summary judgment is granted;

6. (f)
   the plaintiff is ordered to pay the costs of the application to join the third party as second defendant. The defendant is ordered to pay the plaintiff’s costs of the defendant’s application for summary judgement. The defendant is ordered to pay the third party’s costs of the third party’s application for summary judgment. WorkCover is ordered to pay the defendant’s costs of the application to join WorkCover as a third party together with all costs ordered to be paid by the defendant arising out of these applications..