LEO N DUNN & SONS PTY LTD v McPHILLAMY

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40964/99

MASON P MEAGHER JA HEYDON JA

1 MASON P: In 1999 the opponent sought and was granted leave pursuant to s51D(2) of the Workers Compensation Act 1987 to commence proceedings against the claimant. The proceedings, as indicated in the draft ordinary statement of claim, alleged that the opponent was the employee of the claimant, in particular between 1 January 1996 and 1 August 1996. The evidence showed that during that period and perhaps for some time prior to then, the opponent had been employed as an interstate truck driver. As such, he was required to drive an International prime mover with attached triaxle tanker. It is pleaded that he suffered back injury in consequence of the claimant's negligence, in particular through the shuddering of the cabin in the prime mover which occurred when driven at between ninety and one hundred kilometres per hour when the tanker was empty, and through sitting in a twisted seat. 2 The draft statement of claim does not plead that the claimant was the owner of the truck, although this fact was established in the hearing before Judge Herron. 3 Section 151D of the Workers Compensation Act provides: Time Limit for Commencement of Court Proceedings Against Employer for Damages (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999. 4 I think it is possible to infer from a reading of the section, before one turns to Part 5 of the Motor Accidents Act, that the thrust of the section is that there is to be a three year limitation period, unless leave is granted, with respect to claims against the employer. If there are to be claims arising under Part 5 of the Motor Accidents Act, then s151D is not the operative regime. Rather, the relevant parts of Part 5 govern the limitation aspects of such claims. 5 Judge Herron, who granted the leave sought, found that the injury as claimed resulted from a continuing process as the plaintiff drove the truck on long distances. The Motor Accidents Act deals with a number of matters. One matter is the area of compulsory third party insurance, which is addressed in Part 3. Section 9 and Schedule 1 spelt out the conditions of the compulsory third party insurance policy. Relevantly, it provided that the insurer insures the owner of the vehicle and any other person who at any time drives the vehicle against liability in respect of death or injury to a person caused by the fault of the owner or driver of the vehicle, "in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road or road related area)". 6 The Motor Accidents Act is proclaimed as having restored common law rights in relation to motor accident claims. To the extent that it did so, it restored those rights subject to extensive qualifications and cappings. These are to be found in particular in Part 5, ss40-67. 7 Section 40, which is found in Division 1 of Part 5, states that: "in this Part, claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle". 8 Section 40A states the objects of the Part, one of which is to enable the early identification of the nature and severity of the injuries sustained in "the motor accident" and of the likely treatment and rehabilitation needs of the injured person. 9 Division 2, namely ss42-47A, deals with claims and other matters preliminary to court proceedings. Section 42(1) stipulates that it is the duty of a person who is entitled to make a claim to ensure that a written report of the motor accident concerned is made to a member of the Police Force within 28 days after the date of the accident. Non-compliance may be excused if there is a full and satisfactory explanation to the court (see subsection (4)), and delay in making the necessary report may also be excused for sufficient cause (see subs(5)). 10 A number of the succeeding provisions of Part 5 impose obligations referable in terms to "motor accidents". Sometimes the expression "the accident" is used, but in a context that clearly picks up the extended notion of a "motor accident". See, for example, ss42A(1), 43(2), 43A(3) and (4), 47A, 50(1), 52(4), 66(1). I am sure there are other provisions that contain similar references. 11 Section 52(4) stipulates a three year limitation period stemming from the date of the motor accident to which the claim relates for a case that does not involve the death of a person. 12 Judge Herron accepted that "without more" the opponent's "claim" would come within the definition of "claim" within section 40(1) of the Motor Accidents Act. He also accepted that the claim would appear to have been one which arose by accident in the sense that accident is defined as an incident or incidents happening without intention or design (see Australian Casualty Company Limited v Federico (1986) 160 CLR 513 at 527). 13 His Honour held nevertheless that the foreshadowed proceedings were not within s151D(4) of the Workers Compensation Act because they did not relate to a motor accident. He recognised that they fell within the definition of claim standing alone in s40(1) of the Motor Accidents Act. However, his Honour construed the word "claim" for the purposes of s151D(4) as encompassing the type of claims regulated by Part 5 of the Motor Accidents Act. In that sense, compliance with the definition of "claim" in s40(1) was only part of the exercise. His Honour held that the other provisions which contemplated that the claim would relate to a motor accident were engaged in the compendious expression in s151D(4). 14 At one stage his Honour suggested that the expression "motor accident" in s42 and elsewhere contemplated the ordinary motor vehicle accident involving a collision. However, I do not see that as being the essence of his reasoning, because he immediately added that the expression "motor accident" might refer to a situation where a vehicle being stationary falls on a person, causing injury. There are cases such as NRMA Insurance Limited v NSW Grain Corporation (1995) 22 MVR 317 that establish that the owner of a motor vehicle will be covered under the compulsory insurance policy where the owner's fault "in the use or operation of the vehicle" extended beyond a casual act of negligence giving rise to a collision. 15 Senior counsel for the claimant submitted that his Honour erred in going beyond the simple definition of claim set out in s40(1) of the Motor Accidents Act. It was submitted that Part 5 should be construed having some regard to the extent of cover given by the compulsory third party insurance policy, whose terms are stipulated in schedule 1 of the Motor Accidents Act. 16 I have no difficulty with the submission that what happened here does fall within the concept of a "claim" as that definition stands alone in s40(1). That definition does not pick up provisions relating to a motor accident or require that the claim arise out of a motor accident or even a series of motor accidents, at least in the sense of motor accidents as events occurring at a particular point of time. 17 However, I have concluded that his Honour was correct in his broad reasoning. In my view, one should start with examining the purpose of s151D(4) as it appears on the face of that section. I have indicated what I think it to be. It is not looking just at picking up the definition of the word "claim" as found in s(1) of the Motor Accidents Act, even though that definition serves the function of defining that word for the purpose of the whole of Part 5 thereof. The word "claim", when found in s40, appears in a context and with a purpose, namely that of regulating due notice to insurers and the timely and efficient prosecution of proceedings in courts. That Part seems to me to be directed and only to be directed at the type of accident that occurs at a fixed point of time. 18 I am not suggesting that there cannot be more than one accident giving rise to perhaps a single injury and an overlapping set of obligations with respect to traffic reports, proceedings and the like. Nevertheless, I would accept the submission of counsel for the opponent that the claim as propounded in the draft statement of claim is one relating to something different, namely an injury arising out of the nature and conditions of employment. 19 The ownership of the vehicle is not pleaded, and the particulars of the negligence seem to me to be consistent and only consistent with this being a claim that needs leave under s151D(2), this not being "a claim within the meaning of Part 5 of the Motor Accidents Act 1988". 20 Counsel for the claimant drew our attention to s3(6) of the Motor Accidents Act, where for the purposes of that Act a reference to the use or operation of a motor vehicle includes a reference to the maintenance of the vehicle. This extended definition will clearly have a bearing upon disputes relating to indemnity under compulsory insurance. But while the words "use or operation of the vehicle" are to be found in the definition of claim in s40(1) that is not enough, for the reasons I have endeavoured to express, to engage s151D(4). 21 I would therefore propose that the Court grants leave to appeal but dismisses the appeal with costs. 22 MEAGHER JA: I agree. In my view, the word claim when used in Part 5 of the Motor Accidents Act means claim arising out of a motor accident, notwithstanding the more limited definition in section 40(1). 23 HEYDON JA: I agree with the President and with Mr Justice Meagher. 24 MASON P: The order of the Court will be as indicated. ********

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