Ravenscroft v Warltier[2007] QDC 176

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff, a pedestrian, suffered bodily injury when a motor cycle collided with him on a pathway in the Browns Plain locality near Brisbane on 19 June 2001. He subsequently commenced an action for damages for personal injury and loss.

2. [2]
   The trial of the action commenced on 14 December 2006 in Brisbane. By agreement, the proceeding was significantly shortened. The facts relating to the incident in which the bodily harm was suffered were agreed between the parties. The First Defendant’s negligence, subject to my determination of the liability issue, was admitted. The quantum of damages was also agreed.

AGREED STATEMENT OF FACTS

3. [3]
   The agreed statement of facts between the Plaintiff and the Second Defendant are as follows:

“1. On 19 June 2001, at or about 6.30pm:

1. (a)
   The Plaintiff was a pedestrian walking on a concrete pathway in Grosvenor Park, Browns Plains, Queensland (“the pathway”);

2. (b)
   The First Defendant was the driver and/or controller of a 1998 KLR Kawasaki 250cc motorcycle (“the motorcycle”);

3. (c)
   The motorcycle was an off-road trail bike;

4. (d)
   There was no CTP insurance subsisting in respect of the motorcycle for the purposes of the Motor Accidents Insurance Act 1994 (“MAIA”);

5. (e)
   At the point on the pathway just after a wooden bridge which was located close to the intersection of Camden Street, Berkeley Drive and Wembley Road, the motorcycle collided with the Plaintiff (“the collision”);

6. (f)
   As a result of the collision, the Plaintiff sustained personal injury, loss and damage.

2. In the event the Second Defendant is the insurer of the First Defendant under the MAIA, the Second Defendant admits the collision was caused by the negligence of the First Defendant.

3. The pathway was not a “road” as defined by the Transport Operations (Road Use Management) Act 1995.

4. The pathway was not open for use by the public for the driving or riding of motor vehicles, whether on payment of fee or otherwise.

5. The pathway was not dedicated to public use as a road.

6. The pathway, including the point of collision, was a “public place” within the meaning of that term as defined in the Transport Operations (Road Use Management) Act 1995.

7. In the event the Second Defendant is the insurer of the First Defendant under the MAIA, the quantum of the Plaintiff’s damages is agreed at $75,000.00 inclusive of all statutory refunds and interest.”

4. [4]
   Hence the sole issue litigated before me was whether or not the second defendant is liable and obliged to indemnify the first defendant.

5. [5]
   The plaintiff contended that through a process of statutory construction of the relevant legislation and by reference to cited authority, the motor cycle was required to be registered and that accordingly the second defendant was obliged to indemnify the first defendant.

6. [6]
   The second defendant contended that the motor cycle was not a vehicle that required registration pursuant to any relevant legislation and therefore no issue of indemnity arose.

THE LEGISLATIVE STRUCTURE

7. [7]
   The objects of the Motor Accident Insurance Act 1994 (“Act”) include the following object:

7. a. The continuation and improvement of compulsory third party motor vehicle insurance and the scheme of statutory insurance for uninsured and unidentified vehicles.”

8. [8]
   The Act in section 5 provided as follows:

"Application of this Act

5(1)This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –

(a)is a result of –

(i) the driving of the motor vehicle; or

(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or

(iii) the motor vehicle running out of control; or

(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven, and

(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.

(2)For an uninsured motor vehicle, subsection 1(1) applies if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place (my underlining).

(3)However, this Act does not apply to personal injury caused by, through or in connection with—

(a)a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery; or

(b)an agricultural implement, or

(c)a motor vehicle adapted to run on rail or tram tracks; or

(d)an amphibious vehicle; or

(e)a motor vehicle of a class prescribed by regulation;

unless the motor vehicle accident out of which the injury arises happens on a road."

9. [9]
   The structure of Section 5 of the Act is as follows:

1. a. To provide protection for personal injury caused by, through or in connection with a motor vehicle without locality limitation (Subsection 1);

2. b.To provide such protection in respect of uninsured motor vehicles, but limiting the locality to “a road or in a public place”. (Subsection 2);

3. c.To provide such protection in respect of specific “machinery”, but limiting the locality to “a road” (subsection 3).

10. [10]
    There are relevant definitions is Section 4 of the Act:

1. a. “motor vehicle” means “a vehicle for which registration is required under the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (“torum regulation”).

2. b.“uninsured motor vehicle” means a “motor vehicle” for which there is no compulsory third party insurance policy in force….”

3. c. “compulsory third party (CTP) insurance policy” means (a) a policy of insurance under this Act for a motor vehicle insuring against liability for personal injury caused by, through or in connection with the motor vehicle;

4. d.“public place” has the meaning given by the Transport Operations (Road Use Management) Act 1995 (“Torum”). That is, a place of public resort open to or used by the public as of right. It specifically does not include a road. It does not by definition include private land.

11. [11]
    The torum regulation provides by Section 10 that:

"A person must not use, or permit to be used, on a road, a vehicle that is not a registered vehicle unless - …" (my underlining)

12. [12]
    It is Section 10 of the torum regulation that the second defendant relies upon for its contention that because the collision did not occur on a road, there was no requirement for the motor cycle to be registered or insured under the Act. On the other hand, the plaintiff argues that the factual circumstances as outlined are caught within section 5(2) of the Act because whilst the incident did not occur on a road it occurred in "a public place.”

13. [13]
    “Road” has the meaning given by Torum

14. [14]
    “Registration”, of a motor vehicle, means registration under section 10 of the Torum regulation.

15. [15]
    The “requirement” to register a vehicle is determined by reference to the definitions of “motor vehicle”, “registration”, “public place”, “road” and “CTP insurance policy”, in Section 4 of the Act and Section 20 of the Act.

16. [16]
    Section 20 of the Act provides that a person must not drive an uninsured motor vehicle on a road or in a public place.

17. [17]
    The plaintiff submitted that because section 20 of the Act does not permit an uninsured vehicle to be driven "in a public place" (as defined in “Torum) the mere fact that there had been no regulations made pursuant to the torum regulation with respect to the registration and use of vehicles in public places does not affect an obligation to insure an uninsured vehicle with a compulsory third party policy before it is driven in an area which falls within that definition. The second defendant submitted that because third party insurance is compulsory upon the registration of a motor vehicle, the Act as amended intended that a vehicle be covered by a policy of insurance (and by implication registered) when driven in a public place.

18. [18]
    If the contentions of the second defendant were correct, it was submitted that the clear legislative intent of section 5(2) of the Act would be negated, contrary to any rational construction of the Act as amended in 1996 and to it’s legislative purpose – including any policy objective.

19. [19]
    The Second Defendant submitted that Section 20 of the Act implies, at least, the requirement for registration. The making of the torum regulations are authorised by the Torum in Section 147. Specifically, the section authorises the making of regulations about the operation of vehicles and their use in a “public place”. However, as yet no regulations have been made. It is submitted that until regulations are made, the intention of Parliament cannot be implemented.

20. [20]
    The second defendant submitted that this view has support form a “registration requirement” provision in repealed legislation (Motor Vehicle Control Act 1975 (“MVCA”)), which created an offence of using a “motor vehicle” (as defined in section 4 of the MVCA) in a “public place” (as defined), that was unregistered. Section 10 of the MVCA required such a motor vehicle, if it was to be used in a public place, to be registered. It was submitted that no such offence is extant and that, by implication, it follows that there is no implied requirement that such a motor vehicle be registered. Reliance for this analysis is made upon the decision in Mosely v Atherton and Ors (2005) QDC 008 (“Mosely”).

21. [21]
    The second defendant submitted that in order for the plaintiff's submission to succeed, it would be necessary to read into section 10 of the torum regulation the words "or in a public place" where they do not literally appear in the regulation. That is, to do so would expand the operation of the Act rather than read it down or confine it. It is submitted that this amounts to impermissible statutory construction.

22. [22]
    Finally, so far as is relevant, the Act provides for the Nominal Defendant’s statutory liability in Section 33. Section 33(1) deals with the status of the Nominal Defendant, as the insurer, in the following terms. By virtue of section 33(1), if the motor vehicle is not insured "the Nominal Defendant's liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle." Hence the second defendant’s contention that by reference to the definitions of “motor vehicle” and “uninsured motor vehicle”, in Section 4 of the Act, a “motor vehicle” for the purposes of the Act is one that requires registration.

THE ISSUE

23. [23]
    Thus the immediate issues arising out of the legislation involve the “registration” requirement in the context of “a public place”. The resolution of those issues depends on how the legislative provisions are construed.

24. [24]
    The term "or in a public place" was added to section 5(2) by amending legislation in 1996. The section when first enacted in 1994 was more restrictive in that it applied only to an uninsured vehicle being driven at the relevant time “on a road”.

25. [25]
    The explanatory note to the amending legislation makes it clear that the objective of the amendment was to extend the Nominal Defendant scheme to provide greater protection for people injured in motor vehicle collisions and to ensure that the protection covered places beyond the then more restricted definition of a "road.” The amendment was stated not to alter the then existing legislative provision in respect of other classes of vehicles outlined in subsection 3 which limited cover to injuries happening on a road. It is this amending legislation that the plaintiff contends clearly demonstrates the legislative intent of Parliament and that this intent was to extend the protection of the insurance scheme beyond collisions on a road to “public places”.

26. [26]
    It is the constitutional responsibility of the Court to give legislation its meaning and effect. The addition by legislative amendment of the words “or in a public place” are significant. The words are not superfluous. Nor are they dormant, in my view, awaiting some other legislative enactment to give them life.

27. [27]
    It is permissible to consider materials outside the legislation (the explanatory notes to the legislation or the readings of the legislation in Bill form in the Parliament) to assist in it’s construction.

28. [28]
    In the Second Reading of the amending Bill in July 2006, the following was stated as to the purposes and policy objective of the Bill:-

“To introduce amendments that will address any ambiguity or omissions in the original legislation.”

The second reading continues as follows;

“Firstly, the Nominal Defendant is a fund that operates to provide access to compensation where the negligent driver’s vehicle is uninsured or cannot be identified. Under the current legislation, the Nominal Defendant provides an avenue of funds in respect of uninsured vehicles where the accident occurs on a road. By definition the term “road” is given broader application but there is some conjecture that the definition may exclude from the cover afforded by the Nominal Defendant places such as beaches, where motor vehicle use is common.

The Motor Accident Insurance Legislation Amendment Bill 1996 addresses this issue by including a “public place” in the scope of cover. This amendment will ensure much wider protection for those injured in such circumstances. It certainly extends the cover to our beaches. The definition of a “public place” is aligned to the Motor Vehicles Control Act 1975. Adopting this definition means that, if an uninsured motor vehicle is involved in an accident at a place where the vehicle, at the material time, would have required registration and therefore compulsory third-party insurance, the Nominal Defendant will be there to provide the avenue for compensation and, if needed, rehabilitation assistance.

However, despite the widening of cover, it is not intended that a person injured on private property as a result of the negligence of the driver of an uninsured motor vehicle can come within the scope of the Nominal Defendant scheme.”

THE PRINCIPAL AUTHORITIES

29. [29]
    The principal authorities are Gideona v Nominal Defendant (2006) (1) Queensland Reports. 31, Gideona v Suncorp Metway Insurance Limited (2005) QSC 275 and Mosely.

30. [30]
    In Mosely the issue of a requirement for registration of vehicles was considered. The plaintiffs were injured in a collision, on a track on private land, between two unregistered motor cycles. The plaintiffs had commenced their proceedings against, amongst others, the Nominal Defendant in its capacity as an indemnifying insurer of unregistered vehicles. It was held that in respect of one of the motor cycles, it was not required to be registered and was not registered, and thus it was not an “uninsured motor vehicle” as defined and hence the Act did not apply and the Nominal Defendant was not liable to indemnify. The other motor cycle was registered and was insured (by Suncorp) and hence the Nominal Defendant was not liable to indemnify. The collision did not occur in a "public place" or on a “road”.

31. [31]
    Robin QC DCJ (at paragraph 14) stated that section 10 of the MVCA "was spent by the repeal of the legislation containing it. There is no longer an offence of using a 'motor vehicle' as relevantly defined in a public place, if it is unregistered – nor is there any longer an implied requirement that such a motor vehicle be registered.”

32. [32]
    His Honour concluded that it was an offence – created by what is now section 10 of the torum regulation – to use an unregistered motor vehicle on a road and by virtue of section 20 of the torum regulation it was an offence to drive an "uninsured motor vehicle on a road or in a public place. The definitions in the Act mean that the Court's concern is with the requirement to register – registration being the necessary condition of not infringing section 12 if one is bent on using a 'motor vehicle' on a road." (paragraph 17)

33. [33]
    Gideona v Nominal Defendant (2006) 1 Queensland Reports 31 involved the appeal from Mosely in respect of the uninsured motor cycle in that case and the circumstance of the collision being on "private land.”

34. [34]
    Two passages in that case were relied upon by the second defendant. At paragraph 8, Williams JA said the following:

"[8] The obligation to register a motor vehicle in Queensland has always been derived from a provision making it an offence to use a motor vehicle that is not registered on a road; there has never been any statutory provision positively defining when or in what circumstances the motor vehicle must be registered. That position has not changed though the relevant statutory provision has been amended or replaced over the years. The current relevant provision is section 10 of the Transport Operations (Road Use Management-Vehicle Registration ) Regulation 1999(Qld)which came into force after the date relevant for present purposes. Clearly therefore the legislature has accepted the fact that the relevant provision providing for registration of a motor vehicle is that provision which makes it an offence to use an unregistered vehicle of a road.”

35. [35]
    Keane JA, at paragraph 19, said the following:

[19]It has been accepted that this kind of prohibition on the use of a vehicle which is not registered imposes a requirement of registration of the vehicle in the sense that the requirement of registration is implicit in the proscription of use of the vehicle while unregistered in certain circumstances. Under the Transport Infrastructure (Roads) Regulation 1991 (Qld), the relevant proscription was of use "on a road.” Use of an unregistered vehicle in a public place other than a road was not proscribed."

36. [36]
    The second defendant submitted that it is only those motor vehicles (subject to specific exceptions) required to be registered which need compulsory third party insurance and that this means vehicles that are only used on a road, not in a public place. Therefore, it is submitted, it is not every motor vehicle which does not have compulsory third party insurance which is an "uninsured vehicle.”

37. [37]
    It was submitted that the rationale of the decision involves the following steps: The vehicle was not being driven on a road, hence it was not a "motor vehicle" for the purposes of the Act and it was therefore not a motor vehicle which, if unregistered, the Nominal Defendant had liability to indemnity pursuant to the Act.

38. [38]
    In my view it is clear in Gideona v Nominal Defendant that the decision dealt with whether there was a requirement for registration if a vehicle was being driven “on private land”.

39. [39]
    It was submitted that there is a distinction between "motor vehicles" as defined in the Act (together with the reference to the definition and the vehicle registration regulation), which are obliged to have compulsory third party insurance and if there is no such insurance, “motor vehicles” that the Nominal Defendant is obliged to indemnify under the Act.

40. [40]
    Third Party insurance is “compulsory” upon registration. Hence if there is in existence a compulsory third party policy of insurance, the vehicle is not an "uninsured motor vehicle.” The second defendant submitted that the definition of "motor vehicle" in section 4 is referable to a motor vehicle that requires registration but that the definition of an "uninsured motor vehicle" is referable to a motor vehicle that requires registration but has no compulsory third party policy.

41. [41]
    Gideona v Suncorp Metway Insurance Limited (2005) QSC 275 involved the appeal from Mosely in respect of the insured motor cycle in that case.

42. [42]
    The distinction between this case and Gideona v Nominal Defendant was the fact that registration and insurance for this motor cycle existed meant that the insurance policy then extended to liability for injury caused "anywhere in Australia.” The fact that the motor cycle was being used on private land, irrespective of any requirement that it be registered, was irrelevant.

43. [43]
    Hence on the second defendant's submission, there is a distinction between a requirement to register (Gideona v Nominal Defendant) and the existence of registration (Gideona v Suncorp) and that the definition of "uninsured motor vehicle" in section 5(2) of the Act requires both the requirement to register and an absence of compulsory third party insurance: Without both, it is said that the definition does not apply.

44. [44]
    However, in the absence of any “statutory provision positively defining when or in what circumstances a motor vehicle must be registered”, I cannot accept that such a distinction – if it is correct – renders the unequivocal purpose and policy objective of the amendment nugatory. In my view the words have the meaning and effect, in the context of the Act as a whole, that the Nominal Defendant is bound to insure a vehicle in a public place whether registered or not.

DISCUSSION

45. [45]
    The Court of Appeal in Gideona v Nominal Defendant considered the requirement for registration to be one in respect of a vehicle used on a road and that use of an unregistered vehicle in a public place other than a road was not proscribed by legislation; and this Court in Mosely, the repeal of a specific provision creating an offence of using an unregistered vehicle in a public place was considered. In both cases the issue of a ‘registration requirement’ in respect of a vehicle as a condition to which the Nominal Defendant’s liability attached, was critical.

46. [46]
    In my view, the present case can be distinguished from Gideona v Nominal Defendant. That case dealt with the discreet issue of a collision “on private land”. Section 5(2) has never applied to “private land”. It originally applied to “a road”. Since the amendment in 1996 it’s application has been extended to “…a road or in a public place”. A “public place” does not include “private land”. Gideona v Nominal Defendant (and by implication, Mosely) is one that can be confined to it’s own facts and that circumstance. The collision in the present case did not happen on a road or on private land. It happened “in a public place” and in my view, in the absence of any “statutory provision positively defining when or in what circumstances the motor vehicle must be registered”, it is open to this court to construe the section to give it meaning and effect.

47. [47]
    It was submitted by the second defendant that to acede to the plaintiff's contention would be to “legislate”: That is, to usurp the prerogative of the executive wing of government in its exercise of the regulation making power granted it by Parliament (my underlining). The gravamen of the second defendant's submission was that whilst seized with a relevant regulation making power, the executive had yet to exercise it, and that exercise was its prerogative alone: It was not for the court to usurp it through a process of statutory construction.

48. [48]
    The plaintiff submitted that the court can ascertain the intent of Parliament, upon a permissible application of the principles of statutory construction and thereby give meaning and effect to the relevant legislation.

49. [49]
    If the submission of the second defendant is correct, then the words “…or in a public place” are redundant. In my view it is illogical to argue that the amendment in 1996 was intended to be of no effect until a specific regulation was made that gave it a ‘legislative life”. Nor can I conceive that there has been an error or oversight in no specific regulation having been made.

50. [50]
    Nor is this a case of “reading words into the Act”. The words are defined in plain and simple terms. It is a matter of giving them meaning and effect in the context of the whole of the Act and in the absence, as I have said, of a “statutory provision positively defining when or in what circumstances a motor vehicle must be registered”. Not is it a matter of “supplying something” that Parliament intended to say. I do not see that the construction made by me in any way “reads up” the words. Cf: R v PLV (2001) NSWCCA 282.

51. [51]
    In Lewis v Hillhouse [2004] QSC 311 the Supreme Court of Queensland considered the meaning of words in the section 5(2) of the Limitation of Actions Act. The issue was whether the meaning contended for by the defendant of the otherwise plain words “A person shall be taken to be under a disability when the person is ……… a convict who after conviction is undergoing a sentence of imprisonment” required, through a purposive construction, a consequential change in the definition of “disability”. In other words, that the court should, because of amendments made in other legislation and a change in the relevant statutory scheme, give the words “undergoing a sentence of imprisonment” a different meaning.

52. [52]
    The Court declined to construe the statute in that way. The words as plainly read bore a like meaning in other legislation.

53. [53]
    It was submitted that this Court should, in effect, take the same course. That is, to not give the words “in a public place” meaning and effect because of the failure of Parliament to amend the torum regulations to “enliven” the words.

54. [54]
    In Lewis v Hillhouse, had the Court acceded to the defendant’s submission, the same or similar words would have had a different meaning – without definitional amendment – in both the Limitation of Actions Act and the Corrective Services Act 1988.

55. [55]
    In my view the latter case is distinguishable. The issue here is different. The construction that I make does not give the words “in a public place” a different meaning. It gives them a literal meaning that is consistent with the Act as a whole, reflects the relevant legislative and amendment history of the Act and the policy objectives of the Act. Those matters are revealed in the Second Reading speech. In addition, it is not the case here that the words are being construed so as to give them a meaning different to that in other legislation.

56. [56]
    There is force in the submission of the Plaintiff that Section 5 of the Act is not literally dependent on the other legislation to which it refers. The torum regulation, in it’s reference to “motor vehicle” in Section 10, makes no reference to the list of machinery referred to in section 5(3) of the Act.

57. [57]
    The definitions in Section 4 (including the references to definitions in the other legislation) are not definitive of the issue. It is section 5(2) that is being construed in the context of the purpose of the Act as a whole. See Gideona v Suncorp Metway Insurance (at paragraph 12): Allianz Australia Insurance v GSF Australia Pty Ltd (2005) 79 ALR 1079 at 1082; and section 32A of the Acts Interpretation Act 1901 (Cth) (AIAC).

58. [58]
    Section 15AA of the Acts Interpretation Act 1901 (Cth) and Section 14A(1) of the Acts Interpretation Act 1954 (Qld) contain in similar terms the critical statutory construction principle.

59. [59]
    In the Queensland Act s 14(1) provides as follows:

“In the interpretation of the Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.”

60. [60]
    However, Section 36 of the Queensland Act has an extended effect providing that “’purpose’ for an Act, includes policy objective”.

61. [61]
    Thus the proper approach to determining the issue in this case is to discover the purpose of the amended S 5(2) of the Act: See Mills v Meeking (1990) 169 CLR 214 (including Dawson J at 235); Macalister v R (1990) 169 CLR 324 (at 330 where the court endorsed the statement of principle expounded by Lord Reid in Luke v Inland Revenue Commissioners (1963) AC 557 at 577).

62. [62]
    A literal construction of the amended section 5(2) would produce an absurd or mistaken result (that is, that the words “in a public place” were redundant or dormant) that was inconsistent with the purpose (including the policy objective) of the whole of the Act when considered in the context of it’s objects. I do not accept that the parliament legislated an amendment that was either intended to have no effect or was simply left dormant.

63. [63]
    The amendment has meaning and effect. A regulation is not required to give it “legislative life”. The fact that the amendment was made and added a significant expansion of locality limitation cannot be overlooked when one considers the purpose of the amendment to the Act.

64. [64]
    I do not consider the construction that I have applied is introducing into the Act words (such as a requirement for registration) that expand its meaning and effect.

65. [65]
    I find that the Second Defendant is the insurer of the First Defendant and is liable and is obliged to indemnify the First Defendant.

66. [66]
    The Plaintiff has, on the basis of the agreed statement of facts and my finding on the critical issue, discharged the onus of proof in respect of the issue of liability.

67. [67]
    The Plaintiff’s injuries were caused by the negligence of the first defendant. It follows that, in the circumstances the Second Defendant being obliged to indemnify him, the Plaintiff is entitled to a Judgment and an award of damages.

QUANTUM

68. [68]
    The parties have settled quantum in the sum of $75,000.00 inclusive of all statutory refunds and interest. I will therefore award that sum in damages.

ORDERS

69. [69]
    1.Judgment for the Plaintiff.

2.The Second Defendant pay to the Plaintiff by way of damages the sum of $75,000.00 inclusive of all statutory refunds and interest.