Hawira v Suncorp Metway Insurance Limited
[2007] QSC 158
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- Notable Unreported Decision
- Hawira v Suncorp Metway Insurance Limited[2007] QSC 158
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Hawira v Suncorp Metway Insurance Limited[2007] QSC 158
Hawira v Suncorp Metway Insurance Limited[2007] QSC 158
SUPREME COURT OF QUEENSLAND
CITATION: | Hawira v Suncorp Metway Insurance Limited [2007] QSC 158 |
PARTIES: | DAVID EDWARD HAWIRA (applicant) v SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (respondent) |
FILE NO: | BS5308/07 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 2 July 2007 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 27 June 2007 |
JUDGE: | Wilson J |
ORDER: | 1.The compulsory conference of the applicant and respondent required by subsection 51A(1) of the Motor Accident Insurance Act 1994 (“MAIA”) in respect of the Applicant’s claim for damages for personal injury arising out of a motor vehicle accident which occurred on 5 April 2006 at Loganholme (“the claim”) be dispensed with, pursuant to subsection 51A(5)(b) of the MAIA. 2.The obligation of the applicant and the respondent to exchange written final offers under subsection 51C(1) of the MAIA (“mandatory final offers”) be dispensed with, pursuant to subsection 51C(11) of the MAIA. 3.An action for damages be started by the applicant in respect of the claim by no later than 27 June 2007, pursuant to subsection 51D(3) of the MAIA (“the action”) and a copy of the proceedings of the action (“the proceedings”) be provided to the respondent within fourteen (14) days of being so started. 4.Upon the undertaking of the solicitor of the applicant to commence proceedings on behalf of the applicant for damages for personal injury, that the costs of and incidental to the application be reserved to the trial judge in that proceeding. |
CATCHWORDS: | ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – GENERAL MATTERS – the applicant was a passenger in a vehicle driven by a third party, which crashed causing him injury – the applicant intends to bring an action for damages for personal injuries against the driver (and her insurer, Suncorp Metway) in the Supreme Court – the driver brought a property damage action against the applicant in the Magistrates Court concerning the same incident – whether a determination of liability in the Magistrates Court action would create an issue estoppel affecting the Supreme Court action Civil Liability Act 2003 (Qld) sch 2 Law Reform Act 1995(Qld) s 10Motor Accident Insurance Act 1994(Qld) s 51A, s 51C, s 52 Arnold v National Westminster Bank plc [1991] 2 AC 93, cited Azzopardi v Bois [1968] VR 183, cited Bollen v Hickson [1981] Qd R 249, considered De Innocentis v Brisbane City Council [1999] QCA 404; [2000] 2 Qd R 349, cited Jackson v Goldsmith (1950) 81 CLR 446, cited Linsley v Petrie [1998] 1 VR 427, considered O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, cited Royston v McCallum [2006] QSC 193, cited Tiufino v Warland [2000] NSWCA 110, considered Webb v Davey [1982] Qd R 356, cited |
COUNSEL: | G Cross for the applicant D Reid for the respondent |
SOLICITORS: | Colin Patino & Company for the applicant M R Hine for the respondent |
- Wilson J: The applicant was injured in a motor vehicle accident on 5 April 2006. He alleges he was a passenger in a vehicle driven by Michelle Connolly, and that she was intoxicated and lost control of the vehicle, which veered off the roadway, passed over two lanes of traffic into an embankment, crashed through some trees and landed on its roof. He alleges he sustained significant head injury, whiplash and soft tissue injury.
- The applicant intends commencing a proceeding for damages for personal injuries against Connolly. Before he may do so, he must pass through the pre-litigation hurdles set up by the Motor Accident Insurance Act 1994.
- The respondent Suncorp is the compulsory third party insurer with respect to the vehicle.
- The applicant duly gave the respondent a Notice of Accident Claim form required under the legislation. It was received by the respondent on 22 June 2006. But there has been no compulsory conference under s 51A or exchange of mandatory offers under s 51C, and the applicant seeks orders dispensing with these steps. See s 51A(5)(b) and s 51C(11).
- Connolly has brought a property damage claim against the applicant in the Magistrates Court at Beenleigh (M 960/2006) in which she alleges that the accident was caused by the conduct of the applicant in grabbing the steering wheel, causing the vehicle to veer off the roadway, pass over the two lanes of traffic, crash through the trees and land on its roof. That proceeding is listed for trial on 5 July 2007.
- Connolly alleges that she sustained personal injuries in the accident, and has herself given the respondent a completed Notice of Accident Claim form. The version of the accident set out in that form is consistent with that pleaded by Connolly in the Magistrates Court proceeding. Interestingly, it is different from that given to the ambulance officers who attended the scene of the accident. According to the ambulance report form, she said that she was not driving because she had been drinking, and that someone she had met at the pub had been driving, and had fled the scene.
- The applicant’s concern is that a judgment in the Magistrates Court proceeding may give rise to an issue estoppel precluding him from running his case on liability in his proposed personal injuries proceeding in this Court. Connolly has refused to agree to an adjournment of the property damage proceeding pending resolution of the personal injury claims. The applicant seeks a declaration that any decision as to liability in the property damage claim in the Magistrates Court would not bind him and the respondent in his personal injuries proceeding.
- The applicant’s concern is a genuine and reasonable one. He is concerned about the risk of an issue estoppel arising. There are two causes of action in negligence – one for the negligent infliction of property damage and the other for the negligent infliction of personal injuries. Damage is an essential element of a cause of action in negligence, and property damage is fundamentally different from personal injury. In Jackson v Goldsmith[1] Fullagar J noted that the plea of res judicata failed in Brunsden v Humphrey[2] because “… the causes of action were not the same. The injuria was the same but the damnum was different, and, since damage was ‘of the gist’ of the particular action, the causes of action were not the same.” He continued –
“On the other hand, if A sues B to judgment and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different. The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therein determined.”
See Linsley v Petrie.[3]
- In Bollen v Hickson[4] a collision occurred between a motor vehicle driven by the plaintiff and a motor vehicle driven by the defendant. The plaintiff brought a property damage claim against the defendant in a Magistrates Court. The magistrate found both the plaintiff and the defendant to have been negligent, apportioned liability as to 15% against the plaintiff and as to 85 % against the defendant and gave judgment accordingly. The plaintiff then brought a personal injuries claim against the defendant in the Supreme Court. The Full Court held by majority that there was an issue estoppel in relation to contributory negligence. As DM Campbell J said at 256 –
“The issues in the two actions pertaining to liability were concerned with the conduct, management and control of the motor vehicles which collided. The parties added an allegation of excessive speed to the particulars that they had supplied in the Magistrates Court. Apart from that, the particulars supplied were exactly the same in each action. Speed was obviously an issue that could have been raised in any event, and was in fact raised before the magistrate who made a specific finding on the subject. Virtually it was the same contest over again.
It was not made out by the plaintiff that she suffers an injustice by having issue estoppel pleaded against her. It is not contended, for instance, that she refrained from calling important evidence in the Magistrates Court because the expense did not warrant it …”[5]
- There are two possible forms of contributory negligence – (i) failure by the plaintiff to take reasonable care for his own safety (eg failure to wear a seat belt) and (ii) the plaintiff’s breach of a duty of care which he owed to the defendant contributing to the accident in which he (the plaintiff) was injured.[6] Bollen v Hickson was an example of the second. On the material before the Court, if there was contributory negligence in the present case, it, too, was of the second form.
- By s 10(1) of the Law Reform Act 1995 –
“10Apportionment of liability in case of contributory negligence
(1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else –
(a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage.”
As Handley JA said of cognate legislation in New South Wales in Tiufino v Warland[7] –
“… Since there are separate claims for property damage and personal injury, the statute creates separate issues of apportionment. The appropriate apportionment depends on the court’s assessment of the relative culpability and causative significance of the conduct of the parties, and different questions of causation can arise in relation to the collision, and the personal injuries it causes …”
- In the Victorian case Linsley v Petrie[8] a property damage claim was brought in a Magistrates Court; it was brought in the plaintiff’s name by her insurer in exercise of its right of subrogation. The magistrate dismissed the property damage claim, finding that the defendant had not been negligent. The plaintiff then brought a personal injuries claim in the County Court. The defendant succeeded on an application for summary judgment, relying on issue estoppel. The plaintiff appealed successfully to a single judge of the Supreme Court, whose decision was upheld by the Court of Appeal. The members of the Court of Appeal differed in their reasons for upholding the appeal. Hayne JA considered that while the same duty of care was in issue in the two proceedings, the issue of breach was different, because different standards of care applied according to whether the loss was property damage or personal injuries. Smith AJA agreed with His Honour, and went on to make some observations about whether the actions were in substance brought by the same parties in the same capacity, without expressing any concluded view on the point. Callaway JA held that the defendant was prevented from relying on issue estoppel because in the circumstances it would be unconscientious of the defendant to take advantage of what was a collateral consequence of the plaintiff’s having done what equity required of her in permitting the insurer to exercise its right of subrogation. Linsley v Petrie has not been authoritatively considered in Queensland; in Tiufino v Warland the NSW Court of Appeal considered the proposition that there are separate questions of breach of duty in respect of different types of damage to be wrong and contrary to authority: see [46] – [47] and the cases cited therein.
- In Arnold v National Westminster Bank plc[9] the House of Lords held that “in special circumstances” issue estoppel would not prevent re-litigation between the same parties of a decided point. Whether that represents the law in this country has not been authoritatively determined, although it has been doubted.[10]
- In Queensland the Civil Liability Act 2003 applies to civil claims for damages for “harm” (with some exceptions which are not presently relevant): see s 5(1). “Harm” is defined in schedule 2 in this way –
“harm means harm of any kind, including the following –
(a) personal injury;
(b) damage to property;
(c) economic loss”
That Act at least modifies the common law in relation to basic questions such as standard of care and causation (ss 8 – 12), and introduces provisions in relation to contributory negligence (ss 23 – 24), including presumptions of contributory negligence in cases of intoxication (ss 46 – 49). The provisions of the Law Reform Act 1995 dealing with tortfeasors contribution and contributory negligence have been made expressly subject to the Civil Liability Act: see Law Reform Act 1995 s 4A. This is not the occasion to consider whether these provisions, or any of them, affect questions of issue estoppel in proceedings arising out of motor vehicle accidents.
- Of course the present applicant’s proceeding for damages for personal injuries has not been commenced yet, and strictly until it is and until pleadings are exchanged, it will not be possible to assess the question of identity between an issue in the Magistrates Court proceeding and an issue in the personal injury proceeding. But on the material available it seems likely that the relevant issue/s will be the same – depending on which version is accepted, whether either the applicant or Connolly is wholly responsible for the accident, alternatively whether liability should be apportioned. Prima facie there is a real risk of an issue estoppel arising from the determination of this issue in the Magistrates Court proceeding.
- By s 52 of the Motor Accident Insurance Act a claim for personal injuries must be brought against the insured person and the insurer as joint defendants, and judgment must be given against the insurer only. There are thus two causes of action – one for damages for negligence against the insured person and the other a statutory cause of action against the insurer. Judgment may be entered only against the insurer – but only after the cause of action against the insured has been proved.[11] While the respondent is not a party to the Magistrates Court proceeding, there may be privity between it and Connolly such that an issue estoppel arising between the applicant and Connolly would be effective also between the applicant and it. See Webb v Davey,[12] a case where the interests of an insurer which became a defendant by election under the Motor Vehicles Insurance Regulations 1968 were held identical with those of the defendant.
- While no issue estoppel has yet arisen – there has been no judgment yet in Magistrates Court, and a proceeding in this Court has not yet been commenced – the potential is there.
- Given the proximity of the trial date in the Magistrates Court, dispensing with a compulsory conference and/or with the making of mandatory offers would not obviate the risk of issue estoppel arising. Unless that trial date were vacated, realistically there would be no prospect of prior determination of a proceeding in this Court. (An application to transfer the Magistrates Court proceeding to this Court pursuant to s 74 of the Supreme Court of Queensland Act 1991 was filed after the hearing of this application, and is awaiting hearing and determination.) On the other hand, I am satisfied that the holding of a compulsory conference would most likely be a futility, given that Connolly has given the respondent a Notice of Accident Claim form alleging that her injuries were caused by the applicant’s negligence.
- Accordingly, I make orders –
●in terms of paras 1 and 2 of the originating application dispensing with the compulsory conference and the exchange of written offers; and
●in terms of para 3 of the originating application fixing the date for commencement of a proceeding for damages for personal injuries as 4 July 2007.
I decline to give the declaratory relief sought in para 4 of the originating application.
- I will hear the parties on costs.
Footnotes
[1] (1950) 81 CLR 446, 467.
[2] (1884) 14 QBD 141.
[3] [1998] 1 VR 427, 431 (Hayne JA).
[4] [1981] Qd R 249.
[5] Bollen v Hickson [1981] Qd R 249.
[6] See Azzopardi v Bois [1968] VR 183, 187.
[7] [2000] NSWCA 110, [45].
[8] [1998] 1 VR 402.
[9] [1991] 2 AC 93.
[10] See O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 258 (Brennan J); see also Linsley v Petrie at 441, 449; Tiufino v Warland at [30].
[11] See De Innocentis v Brisbane City Council [2000] 2 Qd R 349, [20], [21] and [28]; Royston v McCallum [2006] QSC 193, [45] – [47].
[12] [1982] Qd R 356.