Casey v Gajdos, Laidler & FAI General Insurance Co Ltd [1996] QSC 123

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J No 507 of 1995 TONY JOSEPH PETER CASEY and JOHN GAJDOS and MARK EDWARD LAIDLER and FAI GENERAL INSURANCE COMPANY LIMITED BRISBANE .. DATE 19 / 06/96 ORDER This only.~ l j REVISED COPIES iSSUED i S1ate Fiepcr1ing Bureau j Date£/ IT/ ;& ..._J Plaintiff First Defendant Second Defendant Defendant by Election 4th Floor, The Law Courts. Georf!e Street. Bri.'ihane. n. dnnn TPIPnhnnP~ ln7l 227 d'U.n. Fnr<:imilw m11 ??7 ,;,:;u -- 1 of 5 -- 190696 12 T3-4/FC M/T 786/96 (de Jersey J) HIS HONOUR: This is an application by the plaintiff for judgment for damages to be assessed based on admissions contained in a letter which preceded the institution of the action. The plaintiff was injured when the motor vehicle in which he was travelling as a passenger ran off the road. In a letter of 3 February 1995 the solicitors for the prospective plaintiff referred to an intended claim for damages and set out the circumstances of the accident. The letter contained this paragraph, "We would appreciate your advices as to whether you are prepared to admit liability in these circumstances and negotiate on quantum prior to the institution of proceedings." The response of 10 February 1995 from the licensed insurer directly was in these terms, "We wish to advise we are prepared to admit responsibility for this accident." Then the plaintiff issued a writ and delivered a statement of claim which led to a defence in which the defendant by election denied liability and raised a plea of contributory negligence against the plaintiff. The plaintiff has not sought to strike out the defence but has sought judgment on admissions under Order 36 Rule 5. The issue for me is whether the letter of 10 February should be seen as an admission of liability in the full sense, leaving quantum only in issue or whether it should be read as confined to an admission of the responsibility of the defendant driver for the "accident", leaving open the question whether the plaintiff was himself contributively negligent. In Davis 21 MVR 348 Justice Cullinan gave judgment in light of 2 ORDER 10 20 30 40 50 60 -- 2 of 5 -- 190696 12 T3-4/FC M/T 786/96 (de Jersey J) a letter which said, "Our client admits liability for the motor vehicle accident." That was considered by His Honour to amount to a full admission of liability, leaving only damages to be assessed. There is obviously a great similarity between that language and the language which I see in this letter of .. 10 February. The word "liability" has not. been used by the insurer in this case and the issue is whether I should read the word "responsibility" as referable to the obvious enough primary responsibility of the insured driver for what occurred., The letter does not respond in terms to the request of 3 February which sought an admission of "liability in these circumstances" so that there would be only "negotiation on quantum prior to the institution of proceedings". Is that significant? I am, of course at least subconsciously t suppose, influenced to some extent by the fact that when the proceedings were instituted, the insurer raised a plea of contributory negligence although as Mr Grant-Taylor, who appears for. the plaintiff, rightly points out the insurer also raised a denial of liability which is inconsistent with the letter of 10 February. This case is, I think, slightly different from some of the others to which I have been ref erred and with which I am familiar. It is plain enough that judgment should not be entered under Order 36 Rule 5 except in clear cases. I am not sufficiently satisfied that I should read this admission of 3 ORDER 10 20 30 40 50 60 -- 3 of 5 -- 190696 12 T3-4/FC M/T 786/96 (de Jersey J) "responsibility for this accident" in the way for which the plaintiff contends to warrant my entering judgment, I am afraid. I think I should read it as limited to the driver's responsibility for the accident, leaving aside the question of any contributory negligence on the part of the plaintiff passenger. The question then arises whether I should enter some sort of attenuated judgment which would leave open the issue of contribution but in the exercise of my discretion, I decline to do that because there would be no particular advantage for anyone. That is because the facts relating to the accident would need to be ventilated with relation to the claim for contribution anyway. The appropriate course is therefore that I dismiss the application, however I will indicate what is obvious and that is that I would regard the letter of 10 February as precluding the licensed insurer, the defendant by election in the action, from asserting that the driver of the vehicle was not responsible, that is, negligent. HIS HONOUR: As to costs, in the I order cause. that I the costs be the make that order plaintiff's costs notwithstanding the plaintiff's failure on the application as I have found, about the because there was an uncertainty, insurer's letter of 10 February which, as an experienced litigant, the insurer should not have left hanging as it did. 4 ORDER 10 30 40 50 60 -- 4 of 5 -- 190696 12 T3-4/FC M/T 786/96 (de Jersey J} There have been, to this point, so many cases now on admissions in this area of litigation that I would have thought licensed insurers should be making their position abundantly plain, in terms, in letters which deal with this matter and not leaving room for any such doubt as has led to this application being disposed of in this way today. I will include the reserved costs. Costs including costs reserved on 29/2/96 to be plaintiff's costs in the cause. 5 ORDER 10 20 30 40 50 60 -- 5 of 5 --