Russell v Suncorp Metway Insurance Limited
[2011] QDC 121
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- Unreported Judgment
- Russell v Suncorp Metway Insurance Limited[2011] QDC 121
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Russell v Suncorp Metway Insurance Limited[2011] QDC 121
Russell v Suncorp Metway Insurance Limited[2011] QDC 121
DISTRICT COURT OF QUEENSLAND
CITATION: | Russell v Suncorp Metway Insurance Limited [2011] QDC 121 |
PARTIES: | Jamie Richard Russell (Applicant) v Suncorp Metway Insurance Limited (Respondent) |
FILE NO/S: | 1758/11 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 16 June 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 June 2011 |
JUDGE: | Kingham DCJ |
ORDER: |
|
CATCHWORDS: | MOTOR ACCIDENT INSURANCE CLAIM – whether Act applies – whether claim futile – whether proceedings should be determined summarily Motor Accident Insurance Act 1994, ss 5, 39, 50 Motor Accident Insurance Regulation 2004, s 18 Best v Selke and Suncorp Metway Insurance [2003] QDC 559, cited Bramble v Suncorp Metway Insurance Limited [2010] QDC 47, distinguished Eaton v Pitman [1991] SASC 2764, cited Lawes v Nominal Defendant [2007] QCA 367, cited Rigney v Littlehales [2005] QCA 252, cited Suncorp Metway Insurance Ltd v Sichter [2010] QSC 164, cited Technical Products v SCIO Queensland [1989] 167 CLR 45, cited |
COUNSEL: | Mr de Plater for the Applicant Mr Dickson for the Respondent |
SOLICITORS: | Schultz Toomey O'Brien Lawyers for the Applicant Jensen McConaghy Solicitors for the Respondent |
HER HONOUR: This is an application for orders that would have the effect of allowing Mr Russell to proceed further with a claim against Suncorp Metway for damages for personal injuries arising out of a motor vehicle accident pursuant to the Motor Accident Insurance Act 1994. The accident was a single vehicle collision. The driver of the vehicle apparently lost control of the vehicle and collided with a tree. She was injured.
Mr Russell attended in his capacity as a police officer and assisted an ambulance officer whilst action was taken by others to free the driver from the wreckage. Mr Russell claims he sustained injuries to his shoulder during that operation. His claim is therefore as a rescuer attending the scene of a collision.
Mr Russell has provided Suncorp with a Notice of Accident Claim Form and subsequently an amended Notice of Accident Claim Form to deal with some issues Suncorp noted in relation to the first form. However, Suncorp has not formally responded as required by section 39 of the Act. It has consistently maintained that the Act does not apply to Mr Russell's claim.
Pursuant to section 39 Suncorp must respond by stating one of the following, that is if the Act applies; that it accepts the notice as compliant; or stating what steps are required to remedy non-compliance; or stating that it is prepared to waive compliance. The practical effect of Suncorp's stance is that this claim cannot proceed further through the pre-litigation steps prescribed by the Act. This Court does have the power under section 50 of the Act to enforce compliance with section 39.
Suncorp submitted the Court should not exercise that power because the claim is futile and should not be allowed to proceed further. Suncorp argues that, insofar as the claim may be against Mr Russell's employer, it is excluded from the Act. That is not controversial. It is clear from 3.2 of the Schedule to the Act that were Mr Russell to be making a claim against his employer under the Act, that claim would be excluded from the statutory scheme. That does not mean that Mr Russell could not pursue other avenues against his employer, simply that he could not avail himself of the statutory scheme of the Motor Accident Insurance Act to indemnify his employer in relation to such a claim.
Suncorp referred to the decision of this Court in Bramble v. Suncorp Metway Insurance Limited [2010] QDC 47 as an illustration of the course it urged upon the Court. Bramble is distinguishable from this case on the facts. That is a case in which the insured person in relation to the motor vehicle was the claimant's employer and a claim was pursued under the Motor Accident Insurance Act. Judge Dorney then refused an application in similar terms to this one.
As in the case of Best v. Selke and Suncorp Metway Insurance [2003] QDC 559, which was also referred to in the decision of Bramble, the claim in Bramble's case was one made under the Motor Accident Insurance Act in relation to the employer's wrongful action.
Here it is evident enough from the notice of claim that the claim relates not to any action or omission by Mr Russell's employer, but to the allegedly wrongful actions of the driver of the vehicle. Suncorp submitted the state of the material left open a possible claim against Mr Russell's employer under the MAIA. This argument was based on the notice itself and a letter sent by Mr Russell's solicitor, which appears as Exhibit TAM7 to the affidavit of Mr McClymont filed 25 May 2011.
The notice under the Act should state the capacity in which the claimant was involved in the accident, who the claimant holds responsible for the accident and why. That is a requirement imposed by the regulation 18(b)(ii) and (c)(i) and (ii). The notice certainly states the claimant attended the accident as a police officer attending the scene. It also clearly attributes responsibility for the injury to the driver, although it does not expressly state why. As such the notice sufficiently addresses two of the three issues of compliance aired in Suncorp's oral and written submissions on this application. The remaining issue, why Mr Russell holds the driver responsible, is a matter of non-compliance that can be addressed by Mr Russell.
Apart from that non-compliance I do not accept the state of the material raises the prospect of a claim under the MAIA against the employer, thereby putting it outside the scope of the Act. The letter from Mr Russell's solicitor does not advance Suncorp's argument. On one reading it might raise the prospect that other action, that is than this case, might be brought arising out of the event. There is already a WorkCover claim not yet resolved.
However, a claim under the Act is not excluded by claims under other legislation. The relevant exclusion is only raised when a claim is made under the Act based on the liability of the employer. No such claim has been notified. Suncorp apparently understood this when it advised the owner and driver of the vehicle of this application and not the employer or any other person. So, I do not accept the claim is futile on the first ground raised by Suncorp.
The second basis upon which Suncorp argued the claim is futile relates to the requirements of section 5 of the Act. Section 5 states that the Act applies when certain circumstances are fulfilled. They are set out in section 5(1)(a) and (b). As to section 5(1)(a), Suncorp asserts that Mr Russell's claim is futile because it cannot meet the requirement, particularly of driving.
It referred to a case of Suncorp Metway Insurance Ltd v. Sichter [2010] QSC 164. This was a case in which the Supreme Course determined that the Motor Accident Insurance Act did not apply to the circumstances of an injury because the vehicle involved had come to a stop. The injury was caused by the operation, in that case, of a mechanical arm on a stationary garbage truck and was not related to the driving of the vehicle.
Although in this case it seems the vehicle was stationary when Mr Russell attended the scene, this does not necessarily determine whether his injury was caused by, through or in connection with that vehicle as a result of it being driven or of any the other circumstances set out in section 5(1)(a).
As for the requirement in section 5(1)(b), this is that there is a wrongful act or omission by a person in respect of a motor vehicle. The accepted test is that there is a discernible and rational link between the liability for injury and the particular vehicle; Technical Products v. SGIO Queensland [1989] 167 CLR 45. As is demonstrated by the case of Lawes v. Nominal Defendant [2007] QCA 367, this is an issue which can be pursued at trial.
To that extent Suncorp is not prejudiced if the claim is allowed to proceed. The question here is whether the matter should be resolved in a summary way. The relevant facts are not yet agreed. In rescuer cases, whether voluntary acts break the chain of causation is a critical question. In this case answering that question will likely overlap, at least to some extent, with applying the test of a discernible and rational link between the liability for injury and the particular vehicle.
On the limited information before the Court it could not now be said that the applicant's claim is futile. Liability has been found to exist in cases which bear some strong similarities, particularly Eaton v. Pitman [1991] SASC 2764, albeit dealing with a different statutory scheme.
Granting this application does not determine the question of whether section 5 excludes the claim. It does allow the claim to proceed further. There will be other opportunities for Suncorp to agitate this issue at or before trial. Mr Russell is at risk of an adverse costs order if the point is ultimately successful against him.
Applying the reasoning in Rigney v. Littlehales [2005] QCA 252, I am not satisfied that the facts are sufficiently established or agreed to enable the Court to determine the matter now against the claimant. I propose to make orders that authorise Mr Russell to proceed further with his claim subject to him providing Suncorp within a set period an amended notice of claim which addresses the requirements of regulation 18(1)(c)(ii) which is the requirement to explain why he holds the driver responsible.