Davis v Davis [1995] QSC 51

/l,.i::i~ - sc_ q1:,f os1 ~Y~• State Reporting Bureau 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 CULLINANE J No W176 of 1992 FIONA LEAH DAVIS and CAROLYN ANNE DAVIS TOWNSVILLE .. DATE 29/03/95 JUDGMENT 1 ,.. ·----- -----···------- . ~ v,_; ~ :-' C--~--"IC~ .SS~JE:J :_;~ r~X.l~l'li\J ~ 30 c::rs- Plaintiff Defendant Jth Floor, 'The l,:n" Co11rf5. Gl'Oroe 8trecf. IJri.'ilmm•. O. .JO(}(} Tclt•plwne: (07) 127 4360. Fn('5imilc: (07) 117 SSJl -- 1 of 8 -- 290395 HIS HONOUR: In this matter there will be judgment for the plaintiff against the defendant for damages to be assessed by a Judge of the District Court at Brisbane, and the action is remitted to the District Court at Brisbane for such purposes. I order the action be placed on the assessment list - I order the respondent to pay the applicant's costs of and incidental to the application to be taxed. I publish my reasons. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE Writ No. 176 of 1992 BETWEEN: FIONA LEAH DAVIS Plaintiff AND: CAROLYN ANNE DAVIS Defendant REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE TWENTY-NINTH DAY OF MARCH, 1995 In this matter the Applicant/Plaintiff seeks an order that interlocutory judgment be entered under the provisions of Order 36 Rule 5 of the Rules of the Supreme Court for damages to be assessed. Order 36 Rule 5 provides:- "Judgment or Order upon Admissions of Facts. When admissions of fact have been made in a cause, either on the pleadings or otherwise, any party may, at any stage of the cause, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court or a Judge may, upon such application, make such order, or give such judgment, as may be just." The Applicant seeks an order that the assessment take place -- 3 of 8 -- 2 before a District Court Judge pursuant to Order 39 Rule 52(1). The action is one in which the Applicant sues the Defendant for damages for personal injuries sustained by her as a result of his alleged negligence in the driving of a vehicle in which she was a passenger. At present the action has been entered for trial and a Certificate of Readiness has been filed. By its Defence, the Defendant denies the allegations of negligence and all of the allegations concerning the injuries alleged by the Plaintiff or their consequences. The Defendant in its Defence admits that the vehicle driven by the Defendant and in which the Plaintiff was a passenger, ran off the Bruce Highway at a point about 22 kilometres south of Banaraby and collided with a culvert. In a letter of the 2nd December, 1993 the Defendant's solicitors wrote to the Plaintiff's solicitors in the following terms:- "We have your letter of 16 November, 1992 enclosing the Interrogatories. Our client admits liability for the motor vehicle accident. Please confirm it is unnecessary for our client in the circumstances, to answer Interrogatories." The solicitors for the Plaintiff replied in the following -- 4 of 8 -- 3 terms in a letter of the 7th January, 1994:- "We thank you for your correspondence of the 2nd of December. We advise that in view of the fact that your client has now admitted liability we do not require the Defendant to answer the Plaintiff's Interrogatories. We enclose herewith a report of Dr McPhee dated the 19th of November 1993 for your perusal." For the Applicant it was contended that the Defendants' letter of the 2nd December, 1993, amounted to an admission of the Applicants' cause of action which gave the Applicant a right to judgment for damages to be assessed. The Respondent denies this and says that the letter cannot be read as containing any admission beyond an admission of negligence alone and cannot be understood as an admission that the Plaintiff sustained any injury or loss as a consequence of the accident and that in the light of the pleading this remains in issue. It is the Respondent's case that the admission contained in the letter is not sufficient upon which to base an interlocutory judgment pursuant to Order 36 Rule 5. It is axiomatic that the elements of the Plaintiff's cause of action are as Samuels J.A. pointed out in Sivas -v- Government Insurance Office (N.S.W.) 12 M.V.R. 272 at 275:- (a) a duty; (b) a breach of that duty. To use Samuel J.A. 'swords, "this element usually passing under the name of negligence"; and (c) damage. -- 5 of 8 -- 4 Samuels J.A. went on at pages 275, 276 to say:- ''Sometimes a distinction is drawn between 'negligence' which is intended to describe conduct which fails to comply with the proper standard of care, and 'actionable negligence' which means that conduct together with resulting damage or harm to the plaintiff. Accordingly, it seems to me, that where to an action in negligence a defendant admits liability it is not open to the trial court, unless there are complicating circumstances of a kind absent from this case, to enter judgment for the defendant. If a defendant wishes to concede that his or her conduct fell short of the proper standard of care, but to deny that it caused the plaintiff any harm the proper course is to deny liability. It may be that other formulae may be adopted and they sometimes are. Accordingly, sometimes a defendant will say expressly that there are no instructions to admit liability but that there is no real issue about the circumstances in which the accident occurred. To that statement is sometimes joined an indication that the issue in the case is the occurrence of any damage to the plaintiff." In Blundell -v- Rimmer (1971) 1 W.L.R. 123 the Defendant whilst admitting negligence, expressly stated that damages as a consequence of the negligence, was denied. See also R.J. Munday Ltd. -v- London County Council (1916-17) All E.R. Rep. 824. -- 6 of 8 -- 5 I was referred by both counsel to Rankin -v- Garten Sons & Co. Ltd. (1979) 2 All E.R. 1185. In that matter the solicitors acting for the Defendants wrote to the solicitors acting for the Plaintiff in the following terms:- "With further reference to this matter, we are now authorised to inform you that notwithstanding the terms of the Defence served in this case the Defendant's now admit that the incident alleged in paragraph 2 of the Statement of Claim resulted from negligence for which they are responsible and it is not proposed to proceed with the allegations of contributory negligence pleaded under paragraph 4 of the Defence. Would you please acknowledge the safe receipt of this letter. When we have received our medical report, we shall of course be reporting to our Clients who will no doubt be giving us instructions to explore the possibilities of amicably terminating the proceedings." The members of the Court of Appeal held that the letter did not amount to an admission of the Plaintiff's cause of action and (per Stephenson L.J.) that the Defendants were not precluded from questioning the causal connection between the Plaintiff's injuries and the accident for which they were responsible. Applying these principles to the present case in my view it is not possible to read the letter from the Respondent's solicitors to the Applicant's solicitors in the way suggested -- 7 of 8 -- 6 by the Respondent i.e. as conveying an admission of negligence but not of the cause of action. The words "admits liability" are not consistent with an admission of negligence but the denial of liability or even an admission of negligence alone. Nor in my view can the words which follow the admission of liability "for the motor vehicle accident" support such a conclusion. The proper conclusion to reach is that the effect of the letter of the 2nd December, 1993 is to admit that the Plaintiff has a cause of action against the Defendant arising out of the motor vehicle accident. There will be judgment for the Plaintiff against the Defendant for damages to be assessed by a Judge of the District Court at Brisbane and the action is remitted to the District Court at Brisbane for such purposes. I order that the action be placed on the Assessment List. I order the Respondent to pay the Applicant's costs of and incidental to the application to be taxed. -- 8 of 8 --