The Pleading cases
59 In Leo N Dunn & Sons Pty Limited v McPhillamy the opponent was granted leave pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence proceedings against the claimant. The proceedings, in essence, alleged that the opponent was employed by the claimant as an interstate truck driver for a period of, at least, some seven or so months during 1996. During that period he was required to drive an International Prime Mover with attached triaxle tanker. His draft Ordinary Statement of Claim pleaded that he suffered a back injury in consequence of the claimant's negligence because of the shuddering of the cabin in the prime-mover which occurred when the vehicle was driven at between ninety and one hundred kph when the tanker was empty and, also, through sitting in a twisted seat.
60 The claimant asserted that the opponent ought not to have been granted leave to proceed under s 151D(2) because the claim was governed by Part 5 of the Motor Accidents Act 1988.
61 Mason P (with whom Meagher and Heydon JJA agreed) held (at [17], [19]) that Part 5 was only directed at the type of accident that occurred at a fixed point of time. As the opponent's claim related to an injury arising out the nature and conditions of employment, the claim was not one within Part 5 but, rather, was one which required leave under s 151D(2).
62 It seems possible that Dunn may have been decided differently if the defendant employer had pleaded it was the owner of the motor vehicle (see [19]), but that point was not developed by Mason P.
63 Certoma ADCJ accepted that Dunn & Sons Pty Limited v McPhillamy was not directly in point. In his view, however, it supported the proposition that even though a claim was capable of falling within the definition of "claim" under either the Workers Compensation or MAC Act 1999, a plaintiff was not compelled to bring proceedings under either respective Act to the exclusion of all other actions.
64 Contrary to Certoma ADCJ's view, in my opinion Dunn & Sons Pty Limited v McPhillamy was distinguishable. In that case the injury could be seen to have flown from the nature and condition of the plaintiff's employment over an extended period of time rather than a "motor accident" as that expression is defined. In this case the respondent's injury occurred at a fixed point of time.
65 In Peter Warren (Fairfield) Pty Limited v McMartin (1996) 24 MVR 235 Sheller JA (with whom Handley and Beazley JJA agreed) held that the respondent, whose Supreme Court statement of claim pleaded that her accident and the negligence of both defendants and "this cause" was "regulated under the provisions of the Motor Accidents Act 1988 as amended" had pleaded fault regulated by Part 6 of that Act and, therefore, fault in the use or operation of the vehicle. Accordingly he upheld a finding in the Compensation Court, that the respondent, who had claimed compensation under the Workers Compensation Act 1987 had not, by commencing the Supreme Court proceedings, made an election pursuant to s 151A(2) of the Workers Compensation Act, disentitling her to compensation under Division 4 of Part 3 of that Act.
66 Peter Warren is the only case in which the formality of pleading the Motor Accident Act 1988 was held to bring the case within the provisions of that legislation even though some of the particulars of negligence relied upon would ordinarily constitute allegations of breach of an employer's duty of care. While the dual characterisation issue was not discussed, the outcome was consistent with Zurich Australian Insurance Limited v CSR Limited.
67 The inter-relationship between the MAC Act 1999 and the Workers Compensation Act 1987 was considered by Wood CJ at CL in Pender v Power Coal Pty Limited [2002] NSWSC 925. The plaintiff had been injured on 15 December 1999 while working in a colliery operated by the defendant. He was injured while he and fellow employees were using an unregistered forklift to try to uncoil a reinforced water hose wound around a metal drum. The plaintiff conceded that the forklift was a "motor vehicle". It was not registered as it was used within the mine. It was not, therefore, covered by a compulsory third party policy (s 8 MAC Act 1999). The Nominal Defendant could not be involved because the accident did not occur on a road related area (judgment at [24], s 3 definition of "road" and s 33 (1)).
68 The defendant sought to strike out the proceedings on the basis that the plaintiff was unable to maintain the proceedings in the absence of certificates issued under either s 92 or s 94 of the MAC Act 1999. The parties agreed that an assessment of damages in respect of an injury caused by a motor accident within the meaning of the MAC Act 1999 was to be conducted in accordance with that Act whether or not a third party policy was on foot (judgment [29]).
69 Wood CJ at CL held (at [50]) that the plaintiff's claim was one for damages in respect of an "injury 'caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle'". His Honour also referred (at [55]) to NRMA Insurance Ltd v New South Wales Grain Corp and Zurich Australian Insurance Ltd v CSR Ltd as demonstrating that it did not matter that the plaintiff's case could also be characterised as based upon an unsafe system of work or upon the failure of an employer to provide appropriate plant or equipment or to properly supervise a work activity. It is clear that he regarded the fact that the plaintiff was injured while the drum was loaded onto the forklift as determining that the plaintiff's case revolved around fault in the use or operation of a motor vehicle. In those circumstances he regarded the authorities as compelling the conclusion (at [50]) that the plaintiff's case was one which was caused by the fault of the owner and/or driver of a motor vehicle in its use or operation.
Consideration
70 Finally, attention should be paid to the nature of the provisions which the appellant relied upon as barring the course the respondent has pursued, s 70 and s 108. I have already noted that the language of s 70 does not operate as a prohibition on the commencement of proceedings as leave may be given to continue proceedings commenced without reporting the accident to the police. Section 108 does, however, operate as an absolute prohibition on commencement of court proceedings in respect of a "claim". That is apparent from its mandatory terms and from the authorities which have considered phrases substantially similar to the s 108 expression "not entitled to commence court proceedings".
71 In Hill v Bolt (1992) 28 NSWLR 329 Priestley JA (with whom Mahoney JA agreed) held (at 336-337) that the words "court proceedings cannot be commenced" in s 48 (3) of the Motor Accidents Act 1988 were mandatory with the consequence that proceedings commenced in breach of the Act were of no legal effect. His Honour applied Woods v Bates (1986) 7 NSWLR 560 at 567 where McHugh JA (with whom Hope JA agreed) said:
"... Speaking generally, ... the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice."
72 Kirby P (at [31]) described the provision as indicating "the will of parliament expressed in unusually strong mandatory language."
73 In Baker v Rothmans of Pall Mall (Australia) Ltd (1999) NSWCCR374 Giles JA (with whom Sheller JA and Davies AJA agreed) held, applying Hill v Bolt, that s 106E(1) of the Workers Compensation Act 1987 which then provided that a worker "cannot commence court proceedings in respect of compensation under s 66" until certain statutory requirements had been fulfilled was a mandatory express prohibition. Proceedings commenced in contravention of that prohibition were, therefore, not valid. His Honour construed the provision as part of a scheme to promote the settlement of claims before commencement of court proceedings. Failure to construe the section as mandatory would undermine its purpose within that scheme.
74 In Akhrass v Allianz Australia Insurance Ltd [2002] NSWSC 772 Dunford J held without referring to Hill v Bolt and Baker v Rothmans of Pall Mall (Australia) Ltd that proceedings which were improperly commenced in contravention of s 108 could not be revived when an exemption certificate was issued.
75 Consistently with these authorities, the expression "a claimant is not entitled to commence court proceedings…" appearing in s 108 of the MAC Act 1999 should be interpreted as mandatory in nature.
76 The provisions of the MAC Act 1999 I have set out earlier in this judgment indicate a strong intention on the part of the legislature that any claim in respect of an injury or death which arises from a motor accident is to be resolved expeditiously through the assessment process rather than court proceedings. That interpretation is consistent with the purposes of the scheme outlined during the Second Reading Speech as being, among others, to resolve "claims early, outside the court system and in a non-adversarial manner": Motor Accidents Compensation Bill, Second Reading Speech, Legislative Council, 3 June 1999, Hansard p 901 at 904. Indeed it is clear that the MAC Act 1999 both continued and strengthened the policy introduced by the Motor Accidents Act 1988 to encourage early and prompt settlement of claims: see Hill v Bolt at 332, 335 - 6 (per Priestley JA); Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 (per Gleeson CJ), 538 (per Kirby P).
77 Construing s 108 as mandatory is consistent with the legislative scheme. The clear intention of the legislature in prohibiting the commencement of proceedings until Part 4.4 is complied with is to ensure that a claimant first submits his or her claim to assessment rather than to the judicial process. Indeed, even if a s 94 certificate has been issued and proceedings have been properly commenced, where significant evidence is adduced in the course of the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until the party who has adduced that evidence has referred the matter for further assessment under Part 4.4 and a further certificate under s 94 has been issued (s 111). This over-riding obligation to submit claims to the process of claims assessment reinforces, if reinforcement be necessary, the legislature's intention that the assessment process should be pre-eminent.
78 In my view the legislative scheme should be interpreted consistently. Just as a third party insurer cannot escape liability under the CTP policy issued pursuant to the scheme (see s 10) by seeking to categorise the circumstances in which an injury took place as caused by breach of an employer's duty of care rather than a "motor accident" as defined so, too, a plaintiff should not be able to avoid the legislative consequences of having suffered "injury" in a "motor accident" by the device of pleading his case as arising from a breach of his employer's duty of care. Interpreting the MAC Act 1999 in this manner is consistent with the legislative purpose. It is also consistent with principles of statutory interpretation.
79 In order to give effect to the purpose of a statue it must be construed so that what cannot be done directly cannot be done indirectly: see Collins v Blantern (1767) 2 Wils 347 at 349; (1767) 95 ER 850 at 852 per Wilmot CJ applied in Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595 per Ormiston JA at 601 in the following terms "when the courts find any attempt at concealment, they should 'brush away the cobweb varnish, and shew the transactions in their true light.' " Consistently with this principle, a statute must be applied to the substance rather than the form of a transaction: P. St. J. Langan, Maxwell on the Interpretation of Statutes, (First published 1875, 12th ed. 1969) at 137.
80 The respondent sought to distinguish Zurich Australia Limited v CSR Limited and NRMA Insurance Limited v NSW Grain Corporation Limited and Balfour Beattie Power Constructions (Australia) Pty Limited v GIO of NSW (1996) 24 MVR 162 on the basis that those cases dealt with competing liability under workers compensation and CTP insurance. While it is true those cases concerned the wording of the CTP policy, those policies were relevantly required to be in the same terms as the relevant motor accidents legislation. Nothing turned in any of the cases on the fact that a policy was being construed rather than legislation. Indeed in Allianz, even though the dispute was between two insurers, the Court approached the exercise as involving the interpretation of the MAC Act 1999 and the Workers Compensation Act 1987 respectively. Although Mason P referred (at [8]) to the critical causation question arising in the context of applying canons of construction of insurance contracts, it is clear that the Court regarded the legislative context as having greatest significance in determining the causation issue.
81 The real question, of course, is whether a particular case can properly be characterised as falling within the legislative net. The respondent of course conceded that the circumstances of his injury were such that he could fall within s 108, save for his argument that the manner in which his Statement of Claim was pleaded was sufficient to enable him to avoid its reach.
82 I am satisfied that concession was properly made. In order to be caught by the terms of s 108 it would be necessary that the respondent was a "claimant", meaning a person making or entitled to make a "claim" for damages in respect of an injury to him caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury was a result of and was caused during the driving of the vehicle.
83 It is plain both from circumstances of the accident as described in the respondent's claim form and the particulars to which I have referred that the respondent's injury was caused by the fault of the owner or driver of the motor vehicle in its use or operation. The fact that it was the claimant's system of work which put the respondent on the trolley truck/tractor from which he slipped, does not detract from the proposition that it was, at least, the owner's "fault" which put the respondent in a position where, while the vehicle was being used or operated, he was susceptible to fall from it and be injured. That brings the circumstances of the respondent's injury and his action against the appellant within the meaning of the expression "claim" in the MAC 1999.
84 In this case there could be no doubt, in my view, that applying the terms of the Act and the authorities to which I have referred, the respondent's "injury" was suffered in circumstances which fell within the meaning of that term in the MAC Act 1999 and hence the definition of "claim" for the purposes of s 108.
85 It matters not that the "injury" may also be capable of being characterised as suffered as a breach of the appellant's duty of care as employer. Once it is capable of being characterised as an "injury" within the MAC Act 1999, any "claim" to recover damages in relation to it must be pursued in accordance with the legislative scheme.
86 As the statutory pre-conditions to the commencement of proceedings had not been complied with, the proceedings were not properly commenced and the Statement of Claim should have been struck out.
87 It should be pointed out that this conclusion does not prevent the respondent from, in due course, taking court proceedings. It merely means that in the first instance he must comply with the legislative scheme and submit his claim for assessment. If that is unsuccessful in the circumstances in which I have described and the relevant certificates are issued he can then pursue his claim through the court process.