Bramble v Suncorp Metway Insurance Limited [2010] QDC 47

DISTRICT COURT OF QUEENSLAND CITATION: Bramble v Suncorp Metway Insurance Limited [2010] QDC 47 PARTIES: BRIAN BRAMBLE (Applicant) v SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (Respondent) FILE NO: BD 640 of 2010 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 4 March 2010 DELIVERED AT: Brisbane HEARING DATE: 2 March 20010 JUDGE: Dorney QC DCJ ORDER (Made 2 March 2010): 1. The originating application filed 25/02/2010 is dismissed. 2. The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis. CATCHWORDS: APPLICATION - Leave to commence proceedings - Motor Accident Insurance Act (1994), section 57(2)(b) – where policy of insurance not applicable to respondent COUNSEL: J. Wiltshire for the Applicant R. Green for the Respondent SOLICITORS: Everingham Lawyers for the Applicant Jensen McConaghy Solicitors for the Respondent -- 1 of 8 -- 2 Introduction [1] This application was commenced by Originating Application filed 25 February 2010. It seeks orders pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (“Act”) for leave to commence proceedings for personal injuries suffered as a result of motor vehicle accidents that are alleged to have occurred on 3 March 2007 and 10 March 2007, subject to further conditions attaching to that leave. [2] The application came on for hearing before me on 2 March 2010. After considering both written and oral submissions by counsel for both the applicant and the respondent, I ordered that the application be dismissed and that there be an order for costs against the applicant. At that time I indicated that Reasons would be delivered as soon as possible for that decision. Background [3] I take the following background from the written Outline of Submissions on behalf of the respondent. Having checked the affidavits on file as read, I am satisfied that it is accurate. The relevant facts are: • The applicant was involved in an incident at the Paradise Point Bowls Club on 2 March 2007 as a result of which incident he sustained personal injuries. • The applicant’s present assertions concerning the Act refer to a Kato crane driven by him on 2 March 2007 and 10 March 2007, which crane was driven by the applicant in the course of his employment. • The applicant attributes whatever personal injuries that he sustained to being “thrown around in the cabin of the kato crane quite vigorously”. • The applicant first consulted a solicitor on 20 March 2009, after an “injury/illness” report form was completed by him and delivered to his employer (being dated 8 December 2008). • The applicant delivered an Application for Compensation under the Workers’ Compensation and Rehabilitation Act 2003 (dated 21 January 2009), which claim was rejected on 5 February 2009, whereupon the applicant applied for a review of that decision on 5 March 2009, with that review decision being made on 26 May 2009 confirming the original decision. • In respect to that decision the applicant delivered a Notice of Appeal filed 10 June 2009. • The Notice of Accident Claim made pursuant to the Act was delivered on 15 February 2010. • The plaintiff was born on 10 December 1943, making him 63 years of age on 3 March 2007 and 66 years of age presently. • The applicant reported the incidents of 2 March 2007 and 10 March 2007 to police on 26 February 2010. -- 2 of 8 -- 3 Preliminary matters [4] The applicant foreshadowed the seeking of an abridgement of time for the service of the Originating Application and the supporting affidavit material. After I indicated that, since both parties were before the court, since the limitation period was about to expire and since all relevant material which both parties wished to rely upon was before the Court – and that I intended to proceed today – no further issue was taken by the respondent concerning the need for an abridgement. It should be noted that with respect to the affidavit of Susan Lewis sworn 2 March 2010 (for which I gave leave to read and file today) I permitted the same to be read and filed subject to the excision of paragraph 3. Legislative provisions [5] The major provision of concern here is s 57(2)(b) of the Act. It provides that, despite s 57(1), a proceeding may be brought after the end of a period of limitation if it is brought within a longer period allowed by the court. [6] But before considering that particular provision it is necessary to make reference to certain other provisions which are relevant to the determination of a threshold point raised by the respondent. [7] Section 5 of the Act states that the 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; (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 the wrongful act or omission in respect of a motor vehicle by a person other than the injured person. [8] Following appellate decisions revealing the extent of the coverage of s 5(1) of the Act, Parliament amended the Act in 2000 to change the Act’s coverage. In particular, the Schedule was amended widening exclusions from the Policy of Insurance. Relevantly for present purposes, s 3(2) of the Schedule now states that the Policy of Insurance does not insure an employer against a liability to pay damages for an injury to an employee if – (a) the injury arises from the employer’s failure to provide a safe system of work for the employee or the employer’s breach of some other duty of care to the employee; and (b) neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose. -- 3 of 8 -- 4 Threshold point [9] The respondent contended that a correct approach to the legal issues involved, taken with the evidence that the applicant has led, must lead to the conclusion that there is no indemnity provided to the employer under the statutory Policy of Insurance and, for that reason, any leave that is given becomes futile. [10] As to what is required of a court at this preliminary stage (i.e. before any proceeding is actually begun and, thus, before any cause, or causes, of action are alleged by a prospective plaintiff), it is instructive that Davies JA, with whom McPherson JA and Mullins J expressly agreed, held in Palmer v Harker Transport Services P/L [2003] QCA 513, although with respect to a set of different circumstances, that he did not think there was any substance in the contention that a court should refrain from making an order dismissing an action until the evidence had been given and, presumably, findings of fact made, with it being sufficient to answer such a contention with a conclusion that, on no view of the facts alleged, are they incapable of falling “outside” the operation of s 5(1) of the Act. Although that conclusion is opposite to the conclusion reached in this case [namely, that on no view of the facts alleged are they capable of falling “within” the operation of s 3(2) of the Schedule to the Act], I do not consider that any different approach is warranted when considering the threshold issue in this proceeding. [11] By way of context only, Palmer, Brew v WorkCover Queensland [2003] QCA 504 and Purt v State of Queensland [2003] QCA 503 were all decisions which concerned the Act before the abovementioned 2000 amendment. They are also the reason why the respondent conceded that if the argument was simply limited to s 5 of the Act, such an argument as presently being addressed could not succeed. [12] A detailed consideration of the interplay between the assertions of fact made by an applicant for leave under s 57(2)(b), and s 3(2) of the Schedule, of the Act was undertaken by McGill SC DCJ in Kelvin John Best and I & G Selke Pty Ltd v Suncorp Metway Insurance Limited [2003] QDC 559. The actual facts relied upon in that case were not dissimilar in kind to those raised here. The applicant proposed to take proceedings against his employer of the time, such employer being the owner of the motor vehicle involved which the applicant was driving. The applicant alleged an injury to his back following an incident when he drove over a contour bump on a road in the course of his employment while driving a motor vehicle supplied by his employer. As summarised in that decision, the applicant was claiming that he injured his back in circumstances where he said that his employer was at fault and where the applicant was seeking compensation, indeed seeking damages, in respect of that injury: at p 3. [13] What Best decided, on the legal plane, was that: • If a situation arises where, on the appropriate facts, it is possible to determine that on no view of the facts alleged are they capable of giving rise to entitlement to indemnity from the motor vehicle insurer because they necessarily fall within a statutory exclusion to the policy, it would seem to follow from the approach adopted in Palmer that it is appropriate to decide the issue in a summary way: at p. 8. • It was not disputed that s 3(2)(b) applied because it was the applicant who was the driver of the motor vehicle: at p. 9. -- 4 of 8 -- 5 • It seemed clear that the applicant was seeking to assert that there was a failure to provide a safe system of work on the part of the employer which was a cause of the injuries suffered by the applicant, with the potential for a claim for a breach of duty to provide safe plant and equipment in the form of a safe motor vehicle if there was something wrong with the motor vehicle: at pp. 9-10. • The reference in the latter part of s 3(2)(a) to “some other duty of care to the employee” suggests on ordinary principles of construction that the earlier reference to a failure to provide a safe system of work was intended to be a reference to part of the duty of care: at p. 10. • It seems inevitably to follow that the correct construction of s3(2)(a) is that it applies whether the cause of action is in tort, in contract or for breach of statutory duty: at p. 11. • It seems to be clear, whatever the ultimate scope of the applicant’s claim and whatever the ultimate position may be found to be, in view of the determination at the trial of the relevant facts, that the applicant is claiming something which falls within s 3(2)(a) and that, since s 3(2)(b) is uncontroversial, it follows that the injury the applicant claims to have suffered would be one which, if it really occurred, was an injury to which paragraph (a) applied and, therefore, there was no indemnity provided under the policy to the first respondent in respect of any liability of the first respondent to pay damages to the applicant for that injury: at p. 11. Determination of threshold issue [14] Besides the background facts mentioned above, the following are also important to this preliminary determination: • In none of the claims, reports, forms or other documents completed for or on behalf of the applicant is anything asserted to the contrary of the position that, expressed in general terms, the applicant was driving on a road when the Kato crane hit a bump in the road causing the front of the crane to bounce up and down and that this has thrown the applicant up and down in the cab causing him to hit his head on the roof and his backside to be rammed into the seat making his tailbone hurt. • Further, every such document either expressed explicitly, or did not counter, the assertion that such effects on the applicant occurred “every time” the crane was driven, even though 3 March 2007 and 10 March 2007 are expressly identified as specific instances. • No description of the way in which the incident, or incidents, occurred shows other than that there existed at all material times a relevant employer/employee relationship and that the widest that the particularised duty of care could extend would be to a safe system of work and, or alternatively, the provision of safe plant and equipment for work. [15] During oral argument, Counsel for the applicant acknowledged that there was no cause of action against the employer which could be expressed any more widely -- 5 of 8 -- 6 than that just canvassed. Nevertheless, he contended that it was possible that the cause of the applicant’s physical motion within the cabin of the crane – as described by the applicant – resulted from a defect in the suspension of the crane and that such a suspension driven cause was possibly the result of faulty servicing by some third party. [16] A number of things need to be considered concerning that contention. First, the conclusions that I have reached concerning the safe system of work and, or alternatively, the provision of safe plant and equipment, take the evidence led by the applicant at its highest. There has been no suggestion that there is other evidence, including evidence from which a proper inference can be drawn, which would put the relevant duty any differently. Secondly, any involvement of a third party is pure speculation at the best, having no basis whatsoever in facts from which a proper inference could be drawn. Thirdly, as was pointed out by counsel for respondent, even if some third party were to be possibly involved, s 5(1)(a)(iv) of the Act would serve to exclude the present claim from the ambit of the Act. This is because the relevant ground covers only a defect in the motor vehicle “causing loss of control of the vehicle while it is being driven”. There is, of course, no suggestion whatsoever that, although the applicant was thrown about, there was any actual loss of control while it was being driven. Furthermore, as was also pointed out by counsel for the respondent, s 2 of the Schedule to the Act limits the persons insured by the Policy of Insurance to the owner, driver, passenger or “other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else”, as well as any person who is vicariously liable for the wrongful act or omission. When that provision is taken together with s 52(1) of the Act – which requires that, 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 - where, as here, there is an absence of any identification of that “insured person”, it is impossible for this Court to place any relevance on what pure speculation may throw up. [17] In consequence, I am not satisfied on the material presented by the applicant that any identification has been made of any relevant cause of action or any other potential defendant to the action which would enable this court to determine that the provisions of the Act have been engaged, such that a consideration can be properly undertaken of s 57(2)(b) of the Act. [18] It is for these reasons that I determined that the order that should be made that the application be dismissed. Discretion [19] Should I be in error in the decision that I have just reached concerning the non- application of the Act, I will proceed to state my conclusions concerning the exercise of the discretion that is required under s 57(2)(b) of the Act. [20] The relevant principles have been discussed many times at appellate level. At least initially, I gratefully adopt the principles extracted from the cases to that date outlined by McMeekin J in Paterson v Leigh & Anor [2008] QSC 277: at [8]. [21] As applicable to this application, the relevant ones are: -- 6 of 8 -- 7 • The discretion is unfettered. • The onus lies on the applicant to show good reason why the discretion ought to be exercised. • When the applicant is able to show that the delay which has occurred was occasioned by a “conscientious effort to comply” with the Act, then that would normally be good reason for the favourable exercise of the discretion, but it is not a “dominating consideration”. • Those claimants who ignore the obligations imposed on them by the Act, or who make no conscientious effort to comply with them, may have difficulty in obtaining a favourable exercise or discretion, although that is not necessarily fatal to the application. • Any delay in complying with the Act’s requirements or in applying for an extension would be relevant. • The length of any delay is important and possible prejudice to the defendant is relevant. • Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter. • The interests of justice are the overriding consideration. • The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act as to the provision of any information sought by the insurer are both relevant factors. [22] To the above, I add certain considerations canvassed by the Court of Appeal in Ward v Wiltshire Australia P/L & Anor [2008] QCA 93. They are: • A relevant consideration in an applicant’s favour is that the applicant is not personally responsible for any delay, in circumstances where her evidence and her solicitor’s evidence, which was unchallenged, established that she reasonably relied upon her then solicitor to sue in time: at [79]. • Although the possibility of prejudice concerning potential difficulties in obtaining appropriate medical evidence might be otherwise dismissed as speculative, it could be relevant that the speculative nature arose, at least partly, because an applicant’s evidence did not explain, as it might easily do, what kind of damages are actually being sought: at [88]. [23] The respondent’s Counsel pointed out a number of the abovementioned factors as providing a basis for this Court determining that the discretion should not be exercised favourably. They include: • The failure on the part of the applicant to explain delay in both bringing the application and giving notice of her claim. • The failure on the part of the applicant to place before the court clear, cogent and reliable information that would enable the Court to accept what the actual extent of -- 7 of 8 -- 8 the injuries were, with particular reliance being placed upon the introduction of a potentially new injury to the hip, first raised in 2010. • Prejudice suffered by the respondent by reason of the delay, although Counsel was driven to concede such prejudice was of the type which could not be articulated. • The Notice was not in accordance with the Act. • The respondent had not been able to arrange any medical examination of the applicant and that some of the medical reports on which the applicant relied were not sourced to any medical practitioner. [24] For his part, Counsel for the applicant relied upon: • Delay was explicable in terms of the focus by the applicant’s legal advisers, until very recently, on the claims for workers’ compensation. • The late claim under the Act was only as a result of quite recent advice taken from other Counsel concerning the possibility of the Act having application. • Actions were taken to investigate the accident, the applicant’s employer had been notified of the accident and medical practitioners had been seen. • There would be no real prejudice to the respondent because there is really nothing additional that could be identified by the respondent which would give rise to the alleged prejudice on its part, apart from having no contemporaneous medical examination undertaken. [25] Balancing the various factors that are required to be taken into account and noting that, as held by Keane JA, with whom Wilson and Dutney JJ expressly concurred, in Cottle v Smith & Anor [2008] QCA 244, the ultimate question in relation to the exercise of the discretion conferred by s 57 of the Act is whether a good reason has been shown by the party seeking the benefit of a discretion for its exercise in his or her favour (at [21]), I conclude that good reason has been shown. I have reached this conclusion because there is no prejudice of any substantial kind that has been established, there is an explanation for delay which is not to be laid at the feet of the applicant, the length of the delay (while significant) is not sufficient to be a predominant factor in the balance of weighted factors, and denying an applicant a chance to begin proceedings outweighs the affording to a defendant of a complete defence through a statutory time bar in these circumstances. [26] Thus, were I required to exercise a discretion in this matter, I would exercise it in favour of the applicant. Costs [27] As I indicated at the beginning of these Reasons, the appropriate order for costs - which I have already ordered - in this case is that applicant pay the respondent’s costs of and incidental to this application to be assessed on the standard basis. -- 8 of 8 --