Palmer v Harker Transport Service Pty Ltd
[2003] QDC 22
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- Unreported Judgment
- Palmer v Harker Transport Service Pty Ltd[2003] QDC 22
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Palmer v Harker Transport Service Pty Ltd[2003] QDC 22
Palmer v Harker Transport Service Pty Ltd[2003] QDC 22
DISTRICT COURT OF QUEENSLAND
CITATION: | Palmer v Harker Transport Service Pty Ltd [2003] QDC 022 |
PARTIES: | NEVILLE RICHARD PALMER Plaintiff v HARKER TRANSPORT SERVICE PTY LTD ACN 010 934 068 |
FILE NO: | 397 OF 2002 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 25 March 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 February 2003 |
JUDGE: | Boulton DCJ |
ORDER: | Action struck out with costs |
CATCHWORDS: | Motor Vehicle Accident – Plaintiff sued WorkCover just prior to expiry of Limitation Period – no estoppel |
COUNSEL: | Mr K Holyoak for the Applicant Mr J Lee for the Respondent |
SOLICITORS: | McInnes & Wilson for the Applicant Keith Scott & Associates for the Defendant |
REASONS FOR JUDGMENT
- [1]On 29 January 1998 at about 3.10 pm the plaintiff was driving a Prime Mover and Trailer, both of which belonged to his employer, in a southerly direction along the Leichhardt Highway just north of Theodore. He lost control of the vehicle which overturned to the right hand side. The plaintiff suffered personal injury.
- [2]The plaintiff consulted his solicitors for the first time on 9 March 1998. On 18 March 1998 his solicitors wrote a letter to WorkCover which is Ex KDS1 to the affidavit of Keith Douglas Scott filed by leave on 10 March 2003 seeking documents relating to any past or current WorkCover claims and went on:
“We note further that at some stage in the future we will be wishing to have the National Safety Council attend at the premises where the accident occurred to conduct a safety report. In that regard we would appreciate it if you would appoint loss adjusters and have those loss adjusters contact us as to the possibility of such an inspection.”
- [3]The plaintiff made an application for Workers Compensation payments on 30 January 1998 and 6 February 1998. These application forms are Ex SF3 and Ex SF4 to the affidavit of Scott Anthony Falvey filed 10 February 2003. Both the forms refer to a truck accident and relate to compensation. The plaintiff, however, would seem to have done nothing in relation to a claim for damages until lodging a notice which bears a WorkCover Queensland stamp “6 Nov 2000 Cairns”. This document is Ex SF5 to the affidavit of Mr Falvey. It would seem to have prompted the response of Tutt & Quinlan dated 20 December 2000. Those letters are Ex KDS2 and Ex KDS3. It should be noted that the plaintiff’s notice was lodged less than three months prior to the expiry of the limitation period.
- [4]The liability paragraph in the notice is expressed in the terminology of a master/servant claim:
“Liability
B1.Detail the negligence against the Worker’s employer.
The negligence alleged against the employer is as follows:
- (a)failed to provide a safe system of work;
- (b)failed to provide a safe place of work;
- (c)failed to instruct or train the claimant properly in the handling of the truck in difficult conditions on a winding road;
- (d)failed to warn the worker of the dangers involved and the risks associated with driving the said vehicle in windy conditions;
- (e)failed to provide a safe vehicle for use in the course of the worker’s employment;
- (f)instructed, directed and required the worker to use the vehicle when it is known as a bad vehicle to steer when empty. The vehicle has air bags suspension and the brushes have worn in the air bags;
- (g)failed to warn the worker of the problems associated with the said vehicle or direct the worker to travel along an alternate route so as to minimise the risk of the accident.”
- [5]Further correspondence between solicitors dealt with questions of compliance and with quantification of the claim. The limitation period expired on 29 January 2001. It was only when the plaintiff’s legal advisers issued a claim and statement of claim on 1 February 2002 that the defendant’s solicitors expressed the view that the claim was “a motor vehicle claim arising from a motor vehicle accident … governed by the provisions of the Motor Accident Insurance Act.”
- [6]On 19 February 2002 the defendant requested Further and Better Particulars. Those Particulars are Ex KDS 5.
- [7]This is not to suggest that a plaintiff may not allege negligence on the part of an employer in an action for damages for personal injury arising out of a motor vehicle accident. This was made clear by the Court of Appeal in Curtain Bros. (QLd) Pty Ltd v FAI General Insurance General Insurance Company Limited (1995) 1 QdR 142. In that case the plaintiff had been driving a motor vehicle provided by her employer being unaware of the fact that on the previous night her employer had made an excavation as part of its mining operations. She drove into the excavation. The trial judge had found that the appellant’s legal liability to the plaintiff for damages was not “in respect of” the motor vehicle.
- [8]In the unanimous judgment of the court the abovementioned finding was set aside. The court observed at p146:
“It is fallacious to seek to subsume this specific basis of legal liability into some wider or different basis merely because the presence of additional factors makes the other basis of liability also available. Thus, for example, it does not exclude the particular basis of the appellant’s liability to the plaintiff in respect of the vehicle if it is also liable to her as an occupier in respect of the dangerous excavation or as an employer in respect of the unsafe place of work. The trial judge drew a false dichotomy when he said that “the negligence of the appellant was in respect of the roadway and not in respect of the [vehicle]. One basis of liability is not exclusive of the other and the correct view is that the appellant was negligent, and liable, in respect of both.”
- [9]The issue of insurance, however, is governed by legislation. Section 11 of the WorkCover Queensland Act 1996 provides in part as follows:
“11. Meaning of “Damages”
- (1)“Damages” is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –
- (a)the worker; or
…
- (2)A reference in sub-section (1) to the liability of an employer does not include a liability against which the employer is required to provide under –
- (a)another Act; or
… .”
- [10]The Motor Accident Insurance Act 1994 sets up a statutory scheme for insurance against liability for personal injury caused by, through or in connection with a motor vehicle. In particular, Pt 4 Div 1 of that Act lays down principles for determining the appropriate insurer:
“Principles for determining the insurer”
31.(1)If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles –
- (a)if the motor vehicle is an insured motor vehicle the insurer under the CTP insurance is, subject to this division the insurer;
… .”
- [11]In the present case the Prime Mover and the Trailer which were both owned by the employer were covered by CTP insurance.
- [12]A very similar case to the present one is the unreported case of Gregory Neil Purt v State of Queensland No 1 of 2000, a decision of Jones J in the Supreme Court at Cairns on 19 December 2002.
- [13]In that case the plaintiff had been injured when a vehicle provided by his employer overturned in the performance of his work. There were cross applications before the court. The plaintiff sought to have para 4 of the defence struck out. That paragraph had raised the operation of the Motor Accident Insurance Act. The defendant sought to have the plaintiff’s proceedings summarily dismissed by way of summary judgment for the defendant under UCPR Rule 293. Jones J referred to the High Court decision in Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45 where reference was made to the necessity of “some discernible and rational link between the basis of legal liability and the particular motor vehicle”. He went on to refer to the Queensland decisions of Suncorp Insurance and Finance v Workers’ Compensation Board of Queensland (1990) 1 QdR 185, Curtain v FAI (supra), Megaw v Suncorp Metway Insurance Limited (2002) 1 QdR 499 and Brew v WorkCover Queensland (2002) QSC 416. He refused to follow the decision in Megaw before finding:
“However no notice of an accident claim has been given, as is required by section 37(1) of the MAIA, nor has any application been made to the court pursuant to section 39(5) to further proceed on the claim despite the non compliance. Further the period of limitation has ended and so, pursuant to section 57(1) no application for leave to bring a proceeding may now be made. Hence, as Counsel for the plaintiff has conceded in these circumstances the proceedings are a nullity.”
- [14]In his written submissions Mr Lee of Counsel advanced an argument based on the Insurance Contacts Act. However, s 9(e)(ii) of that Act expressly excluded from the ambit of the Act actions for personal injury arising out of motor vehicle accidents.
- [15]The plaintiff also contends that the defendant is estopped from denying liability. The argument is expressed in Counsel’s written submissions:
“36. The decision in Horinack was handed down on 27 October 2000. It is to be presumed that WorkCover knew of the decision when it was handed down. It follows that WorkCover either gave consideration to the application of Horinack in the notice of claim delivered 31 October 2000, and allowed the period of limitation to expire on 29 January 2001 without informing the claimant that it would later intend to rely on the Horinack principle, or WorkCover failed to give the question any consideration before the expiration of the limitation period. In either case, the Acts or omissions of WorkCover amounted to a representation to the claimant that the Horinack principle would not be relied upon. This conclusion is reinforced by the fact that the Horinack principle is not raised in the section 285(4)(a)(ii) response as to liability. The claimant, in reliance on WorkCover’s demonstrated and stated position as to liability, took no advice nor any steps in relation to the Horinack principle prior to the expiration of the limitation period, or indeed until it was raised by paragraphs 6-13 of the defence. As a result, the plaintiff has moved to his detriment in reliance upon the representations by WorkCover as to the liability position, and WorkCover is now estopped from pleading and relying upon the Horinack principle as defeating the plaintiff’s otherwise just claim against WorkCover.”
- [16]The only topic raised between the plaintiff’s solicitors and WorkCover prior to the expiry of the limitation period concerned the issue of compliance of the Notice of Claim form approved on 23 November 2000, a copy of which had been provided to the plaintiff’s solicitors. In the letter of Tutt & Quinlan dated 11 January 2001 to the plaintiff’s solicitors it is observed:
“If either of these options is exercised, WorkCover undertakes to regard any notice of claim once considered compliant (sic), as compliant from the date compliance is advised by us. This will enable the claimant to then take advantage of section 308 of the Act. Non compliance issues have already been notified to your office.”
- [17]There is no indication that to this point of time either party had adverted to the fact that this was an MAIA case. This is certainly so as far as the defendant was concerned. I have already pointed out that the particulars of negligence contained in the original notice would suggest to a superficial reader that this was a typical WorkCover case. In any event the only representations on behalf of the defendant related to the issue of compliance. At no stage did the defendant accept liability. Its written notice under section 285(4) of the WorkCover Act was dated 27 July 2001 and advised as follows:
“1.Liability in connection with the event which the notice of claim relates to is denied on the basis that there was no negligence on the part of Harker Transport.
2.The complainant’s offer to settle contained in the notice of claim dated 26/02/01 is rejected and;
……”
- [18]It cannot be said in the present case that the defendant created or actively furthered the wrongful assumption by the plaintiff that the appropriate insurer was WorkCover. That assumption was made by the plaintiff’s own legal advisers when they lodged the notice of claim for damages to WorkCover approximately three months prior to the expiry of the limitation period.
- [19]The actions of the party said to be estopped are crucial. It was pointed out by Deane J in the Commonwealth v Verwayen (1990) 170 CLR 394 at 444:
“The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust or oppressive conduct if he were now to depart from it.”
- [20]This is not a case like Newton, Bellamy and Wolfe v State Government Insurance Office (Qld) [1986] 1 QdR 431 or Morris v FAI General Insurance Company Limited (1996) 1 QdR 495. In Newton there had been a written communication on behalf of the defendant at an earlier stage in proceedings that liability was not in issue. In Morris there was again a written communication on behalf of the defendant stating that it was “prepared to accept your client’s claim for personal injuries.”
- [21]Mr Lee on behalf of the plaintiff makes reference also to some unreported cases involving the availability of Workers Compensation damages to Queensland workers who suffer injury in New South Wales. He refers to a decision of Shanahan DCJ in Salisbury v Farley Constructions Pty Ltd and Workers’ Compensation Board of Queensland dated 8 June 2000 and Foster v Skilled Communication Services Pty Ltd and Work Cover Queensland a decision of Brabazon DCJ on 26 July 2002. In both of these cases it was held that the Workers’ Compensation Board and its later equivalent WorkCover Queensland were estopped from denying liability as insurer.
- [22]In Salisbury there had been three telephone enquiries made to the Workers’ Compensation Board which accurately represented the fact that the plaintiff who normally worked in Queensland had been injured during a period when working in New South Wales. Shanahan J held that the Board had on these three occasions given an assurance to the defendant that the defendant was covered by the Queensland policy of insurance. He went on to consider the comments of Deane J in The Commonwealth v Verwayen (supra). He went on to hold that the defendant relied upon the representations in not seeking appropriate cover in New south Wales before finding that the Board was estopped from denying its liability to indemnify the defendant.
- [23]The facts of the situation in Foster was somewhat closer to those in the present case in that there was no mention in WorkCover’s s 285 response of the fact that the injury happened in New South Wales although there was a denial of liability. However on 27 April 2001 there was a compulsory conference pursuant to s 293 of the Act where Counsel for Work Cover raised the issue. Brabazon DCJ points out at p 23 of his unreported judgment:
“(23). The evidence does not reveal that Counsel’s raising the issue had any other immediate consequences. It is not mentioned in contemporaneous correspondence. There is no suggestion that WorkCover reserved its position.”
- [24]A claimant’s statement of claim followed on 5 June 2001 and the defence on 23 August 2001 this latter pleading contending that the damages or entitlement thereto should be determined according to the law of New South Wales. Further steps occurred in the litigation amongst them the issuing of a damages certificate by WorkCover which said:
“This certificate allows proceedings for damages for an injury to be commenced.”
Further correspondence took place concerning compliance. It was only on 27 May 2002 that the solicitors for WorkCover raised “an indemnity issue” that was followed by a refusal of Work Cover on 19 June 2002 to indemnify the defendant. Significantly there was a change in the New South Wales legislation. Brabazon DCJ points out at para 42:
“Significantly, in November 2001, the New South Wales regime governing an injured worker’s right to claim damages was substantially altered . Whereas Mr Foster had some prospect of recovering damages before that date, afterwards his prospects became nil.”
He proceeded to find that WorkCover was estopped in the circumstances from denying liability.
- [25]However, for the reasons that I have adverted to above, the factual situation in the present case is very different. It is true that a careful reading of the Notice of Claim would readily have disclosed that, despite the particulars of negligence being framed in terms of employer’s liability, the initial incident was a motor vehicle accident. There was no canvassing of the point as to who was the relevant insurer. The assumption that it was WorkCover was made by the plaintiff’s own legal advisers and at a late stage. As soon as the claim and statement of claim was issued the insurance point was taken.
- [26]No estoppel then arises. For the reasons outlined by Jones J above and by McGill DCJ in a similar situation in Ferguson v Kropp Pty Ltd the action is a nullity. The plaintiff should pay the applicant’s costs of the application and the action to be assessed on a standard basis.