Palmer v Harker Transport Services P/L [2003] QCA 513

Court of Appeal (Qld)|2003-11-21|Before: McPherson, and Davies JJA and Mullins J, Separate reasons for judgment of each member of, the Court, each concurring as to the orders made

Keith Scott & Associates for the applicant/appellant

[1] McPHERSON JA: I agree with the orders proposed by Davies JA for the reasons he has given.

[2] DAVIES JA: This is, or purports to be an appeal against an order given in the District Court on 25 March 2003 dismissing an action commenced in that court by claim and statement of claim on 30 January 2002. However there is an application by the respondent that the notice of appeal be struck out on the ground that, the order being one other than a final order, the appellant needed leave to appeal and had not obtained it. It is convenient to turn first to the substantive question.

[3] The action, as alleged in the statement of claim, was one for damages for personal injuries caused to the appellant when, on 29 January 1998, a prime mover and trailer which he was then driving overturned. The action was against his employer, the respondent, alleging, in various ways, a failure to instruct the appellant as to certain weather conditions in which he should not drive this vehicle. In particular it was alleged that:

"(c) The Defendant failed to instruct the Plaintiff not to drive in particular conditions which were unsafe or hazardous to the Plaintiff;

(e) The Defendant failed to direct and/or instruct the Plaintiff not to drive in particular conditions;

(g) The Defendant maintained strict time constraints on the Plaintiff's tasks, requiring him to be at load and unload points at specific times, requiring the Plaintiff to drive in conditions when it would be prudent not to."

[4] The conditions referred to in the above particulars were particularized as:

[5] The learned primary judge dismissed the action because he held that it was one in respect of personal injury caused by, through or in connection with a motor vehicle within the meaning of s 5 of the Motor Accident Insurance Act 1994 ("the Act") and the appellant had failed to comply with the claims procedures set out in Division 3 of Part 4 of the Act.

[6] In his extensive written outline, Mr Lee, for the appellant, has argued a number of grounds on the basis of which he submitted that the learned primary judge erred. However his oral submissions were confined to submitting that the appellant's injury was not, or was not clearly one caused by through or in connection with a motor vehicle; and that if it was not clearly so then his Honour ought not to have dismissed the appellant's action at the pleading stage but ought to have decided it only after evidence on this question had been given. That is not to say that Mr Lee abandoned his other arguments and it will be necessary to say something about each of them later. But he was right in thinking that the central question was whether the appellant's injury was caused by through or in connection with a motor vehicle and it is to that question that I turn first.

[7] That the appellant's injury was one caused by through or in connection with a motor vehicle seems plain from the application of s 5 to the facts as alleged and as I have stated them. Section 5 is relevantly in the following terms:

"(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -

(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or

(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

(b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.

[8] The appellant's personal injury was a result of the driving of the motor vehicle: s 5(1)(a)(i). It was also caused, if the appellant is to succeed, at least partly by the respondent's omission to give adequate instructions in connection with the driving of that motor vehicle: s 5(1)(b).

[9] It is irrelevant in deciding whether the Act applies to the facts as I have stated them that the respondent may have been liable in some capacity other than as the owner of the motor vehicle, for example as an employer. The injury, on the above facts, was nevertheless one caused by through or in connection with a motor vehicle within the meaning of s 5. The facts as alleged are materially indistinguishable from those considered by this Court in Brew v WorkCover Queensland[1] and Purt v State of Queensland[2] and this Court should, accordingly follow those decisions.

[10] No notice pursuant to s 37 of the Act was given by the plaintiff to the insurer under that policy before the expiration of the three year limitation period or at all. Nor was any application made to a court pursuant to s 39(5)(c) of the Act before the expiration of the limitation period: see s 57. It follows that the action, having been commenced without first complying with Division 3 of Part 4, was incompetent and that his Honour was correct in dismissing it.

[11] It also follows from what I have said that I do not think that there is any substance in the contention that a court should refrain from making an order dismissing an action until the evidence had been given and, presumably findings of fact made. It is sufficient to answer this contention factually: that on no view of the facts alleged are they capable of falling outside the operation of s 5(1).

[12] The appellant, in an extensive written outline and in oral submissions in this Court has sought to advance a number of alternative propositions none of which, it seems to me, is tenable. I shall deal with each of them only briefly.

(a) His Honour erred in law in holding that the operation of s 31 of the Act gave a basis for choosing between WorkCover and the compulsory third party insurer as the appropriate insurer

[13] His Honour did not so hold. His reference to s 31 was incidental only, to make the point that both the prime mover and the semi-trailer which was attached to it were insured with the same insurer: see s 31(3).

(b) His Honour erred in law in holding that s 9(1)(e)(ii) of the Insurance Contracts Act 1984 applied to prevent the Insurance Contracts Act having effect on the contract of insurance between the defendant and WorkCover

(c) His Honour erred in law in failing to hold that the operation of s 11 of the WorkCover Queensland Act is governed by s 54 of the Insurance Contracts Act within the principles in Moltoni Corp v QBE Insurance [2001] HCA 73; (2001) 205 CLR 149

[14] His Honour was plainly correct in holding that the Insurance Contracts Act 1984 (Cth) has no application to the scheme contained in the Act: Insurance Contracts Act s 9(1)(e)(ii). The principle in Moltoni has no application here. In that case it was held that s 9(1)(e)(i) excepted from the application of the Act only insurance contracts made pursuant to an obligation under State law. That is the case in respect of the Act. Moreover there can be only one liability of the respondent; and an action in respect of that liability is subject to the operation of the Act.

(d) His Honour erred in law in holding that no estoppel or waiver arose to prevent the defendant from denying liability

[15] There may be more than one answer to that contention. But it is sufficient to say that his Honour found that the respondent made no representations and did not create or actively further any wrongful assumption that WorkCover was the appropriate insurer. Those factual findings are not challenged nor could they be. There is therefore no basis for this ground. It was not argued that the motor vehicle insurer waived compliance with the notice requirement of s 37: s 39(5)(b).

(e) His Honour erred in law in failing to decide as a matter of statutory construction whether the plaintiff was required to elect between pursuing a claim under the WorkCover Queensland Act or a claim under the Motor Accident Insurance Act, or alternatively, if he did decide that issue, deciding it adversely to the plaintiff

[16] There can be no question of election. If the appellant's injury was one caused by through or in connection with a motor vehicle then the Act provisions apply to the exclusion of those under the WorkCover Queensland Act and the Insurance Contracts Act.

[17] It remains necessary to consider whether the order made by the learned primary judge was final or interlocutory. If it was not a final order leave was necessary to appeal. As already mentioned, the appellant purported to commence this appeal without seeking leave; hence the respondent's application to strike the appeal out. However, in the event that leave was necessary, the appellant now seeks it.

[18] In my opinion the order dismissing the appellant's action was one the legal effect of which was not to finally dispose of the rights of the parties.[3] The legal effect of the order did not finally dispose of the rights of the parties because an order of that kind would not have prevented the appellant instituting fresh proceedings based on the same cause of action and complying with the provisions of Division 3 of Part 4 of the Act. The practical effect of the order was to finally dispose of the appellant's rights only because, by the time the order was made, the limitation period had expired. But as I have already indicated, the relevant test is the legal, not the practical effect of the order. It follows that leave was necessary to appeal.

[19] Because I do not think that, on any of the grounds advanced, the appeal ever had reasonable prospects of success, I would refuse the application for leave to appeal.

1. Dismiss the application by the applicant/appellant for leave to appeal.

2. Order that the appellant pay the respondent's costs of the application and appeal and of its application to strike out the appeal.

[20] MULLINS J: I agree with the reasons of Davies JA and the orders proposed by him.

[1] [2003] QCA 504; Appeal No 11762 of 2002, 14 November 2003.

[2] [2003] QCA 503; Appeal No 578 of 2003, 14 November 2003.

[3] Licul v Corney (1976) 5 ALJR 349 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, 256; Meddings v The Council of the City of Gold Coast [1988] 1 QdR 528 at 534 - 536.

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