Crane v Battle Mountain (Aust) Inc & MMI [1999] QCA 476

SUPREME COURT OF QUEENSLAND CITATION: Crane v Battle Mountain (Aust) Inc & MMI [1999] QCA 476 PARTIES: RONALD HENRY CRANE (plaintiff/appellant) v ALLISON MAREE GARDE and SUNCORP GENERAL INSURANCE LIMITED (ACN 075 695 966) (first defendants) and BATTLE MOUNTAIN (AUSTRALIA) INC (ARBN 000 812 751) and MMI GENERAL INSURANCE LIMITED (ACN 000 122 850) (second defendants/respondents) FILE NO/S: Appeal No 12034 of 1998 SC No 688 of 1997 DIVISION: Court of Appeal PROCEEDING: Appeal ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 16 November 1999 DELIVERED AT: Brisbane HEARING DATE: 22 September 1999 JUDGES: Pincus JA, Davies JA, Ambrose J ORDER: Appeal allowed with costs. Orders made below set aside. It is ordered on the summons dated 10 December 1998, filed on behalf of the appellant, that the relief sought by paras 1 and 2 of that summons be granted with costs to be paid by MMI General Insurance Ltd. On the summons dated 15 December 1998, issued on behalf of Battle Mountain (Australia) Inc, it is ordered that that summons be dismissed with costs. CATCHWORDS: LIMITATION OF ACTIONS – GENERAL – APPLICATION OF STATUTES OF LIMITATION – application for joinder of insurer pursuant to s 52 Motor Accident Insurance Act – whether s 11 Limitation of Actions Act prevents joinder - application of De Innocentis v Brisbane City Council -- 1 of 3 -- 2 De Innocentis v Brisbane City Council (Appeal No 12032 of 1998, 24 September 1999; [1999] QCA 404) Limitation of Actions Act 1974, s 11 Motor Accident Insurance Act 1994, s 52 COUNSEL: Mr D B Fraser QC, with him Mr M E Pope, for the appellant Mr K Holyoak for the respondents SOLICITORS: Lee Turnbull & Co for the appellant McInnes Wilson for the respondents [1] THE COURT: This is an appeal against orders made by Cullinane J in a personal injuries case, relating to an accident said to have occurred on 22 March 1995. The writ in the action was issued on 17 July 1997. The appellant's case sought to be pursued in the action is that he was driving a vehicle along a road when a rock was thrown up by the wheels of a vehicle being driven in the opposite direction. It went through the windscreen and injured the appellant, he says, because of negligence on the part of the driver (Ms Garde) of the vehicle whose wheels threw up the rock and because of negligence and breach of duty on the part of the second defendant in the action, which I shall call Battle Mountain, in providing the appellant with a motor vehicle having an unsafe windscreen. The writ was issued against Ms Garde and Battle Mountain only, not against any insurer. [2] The third party insurer of Ms Garde's vehicle, Suncorp General Insurance Limited, was joined by consent on 16 December 1998. The applications before Cullinane J which brought this appeal about were principally for an order adding as a defendant MMI General Insurance Ltd, the third party insurer of the vehicle being driven by the appellant, and for an order striking the action out against Battle Mountain. The appellant's application to join MMI failed and the application to strike the action out against Battle Mountain succeeded. [3] In the reasons given by Cullinane J, his Honour sets out other facts than those mentioned above, which were regarded as relevant to the exercise of the discretions sought to be invoked. It does not appear necessary, however, to include that information in these reasons. That is so because it was, at the hearing of this appeal, accepted that the appeal must succeed, if it is correct that s 11 of the Limitation of Actions Act 1974 does not provide a defence to an insurer joined outside the three year time limit imposed by that section. [4] In De Innocentis v Brisbane City Council (Appeal No 12032 of 1998, 24 September 1999; [1999] QCA 404) it was held by this Court that s 11, just referred to, does not protect insurers joined under s 52 of the Motor Accident Insurance Act 1994; s 52(1) requires that an action of the present kind, claiming damages for personal injury arising out of a motor vehicle accident, be brought against the insured person and the insurers as joint defendants. The consequence is that, if the learned primary judge had joined MMI as a defendant on the appellant's application, no limitation defence under s 11 of the Limitation of Actions Act 1974 would have been available to it. The learned primary judge, referring to the application for joinder of MMI, said that the appellant had – -- 2 of 3 -- 3 " … brought an action against the insured person, but not against the insurer within the limitation period and thus has no-one against whom he can obtain a judgment in respect of his claim for personal injuries". His Honour went on to consider whether the discretion to join MMI should, despite the action against MMI being statute barred, be exercised in favour of the appellant and determined that question against the appellant; because of the decision given in this Court in De Innocentis, no question of a discretion to join MMI out of time arises. It should, however, be added that with commendable candour counsel for MMI, Mr Holyoak, referred us to s 81 of the Supreme Court of Queensland Act 1991 as potentially relevant to the application to join MMI, if we held that the action against it was subject to the three year time limit. Since we have not so held, it is unnecessary to discuss the way in which s 81 might affect the outcome of such an application. [5] The appeal must be allowed with costs and the orders made below set aside. It will be ordered on the summons dated 10 December 1998, filed on behalf of the appellant, that the relief sought by paras 1 and 2 of that summons be granted with costs to be paid by MMI General Insurance Ltd. On the summons dated 15 December 1998, issued on behalf of Battle Mountain (Australia) Inc it will be ordered that that summons be dismissed with costs. -- 3 of 3 --