Australian Capital Territory - Australian Capital Territory (Self Government) Act 1988 - relationship between ordinances deemed enactments of the Legislative Assembly of the Territory and Federal laws such as the Compensation Act.

Commonwealth Employees' Rehabilitation and Compensation Act 1988

Australian Capital Territory (Self Government) Act 1988

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)

Law Reform (Miscellaneous Provisions) Act 1955 (ACT)

Holloway v McFetters [1956] HCA 25; (1956) 94 CLR 470,

Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641,

Parker v The Commonwealth of Australia (1984) 53 ACTR 11, considered.

Counsel for the appellant: Mr J. Poulos QC and Mr G. Lunney

(1) Leave to appeal be granted and the document filed 10 January 1992

as a Notice of Appeal stand as the Notice of Appeal.

(2) The appeal should be allowed and that in place of the answer given

by the primary judge, the question posed by the special case be

answered "no".

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MILES J. The background of this matter and the relevant legislation are set out in the joint judgment of Ryan and Gummow JJ., a draft of which I have had the advantage of reading. In addition to the legislative provisions referred to in the joint judgment I would refer to s.48 of the Compensation Act which provides that where a Commonwealth employee recovers damages for an injury which is compensable under the Compensation Act, compensation is not payable after the date on which the damages are recovered. Section 48 assumes that a Commonwealth employee who suffers a work-related injury may claim damages from a third party such as a manufacturer of equipment or the driver of a vehicle.

2. I would not grant leave to appeal, nor if leave were granted would I allow the appeal.

3. On the question of leave, the correctness of the decision of the Supreme Court is not sufficiently attended by doubt to justify the granting of leave. The attack on the decision of the Supreme Court involves the consideration of two pieces of legislation, each emanating from a different source, neither of which was intended to have any impact upon the other. The facts of the case, insofar as they are assumed for the purposes of the stated case, are unusual, and probably unique, as they involve the hire and use by the Commonwealth of an uninsured vehicle on a public street. It is to be expected that the Commonwealth would never knowingly allow the use by its employees of a hired motor vehicle on a public street unless the vehicle was insured. Moreover, if it be the case that a failure to elect to sue for damages pursuant to s.45 of the Compensation Act would relieve the nominal defendant of liability under the Motor Traffic Act, then there are insufficient facts postulated by the case stated. The Court would need to know whether or not there has been a payment of compensation under s.24, 25 or 27 of the Compensation Act, since it is only when there has been such a payment that the right to make the election is terminated.

4. The nominal defendant seeks to avoid liability to pay damages for death or injury caused by the use of an uninsured motor vehicle upon a public street by relying on the effect of the Commonwealth Act upon the right of a Commonwealth employee to sue the Commonwealth or a fellow Commonwealth employee for work-related injury. The argument for the appellant starts with the assumption that there is a useful analogy between the liability of the nominal defendant under s.85 of the Motor Traffic Act and the liability of a principal vicariously liable for the tortious act of a servant or agent. For convenience I will refer to a person in either of the latter categories as an employee. The argument proceeds by assertion of a proposition concerned with the existence or viability of a right vested in the employee. The right has been referred to in the course of argument, and in some of the reported cases, as a right founded upon a cause of action. The proposition is that if the right to sue the employee is extinguished or unenforceable, the right to sue the principal is likewise extinguished or unenforceable.

5. The proposition, in my view, is not sustainable. No authority is cited to support it. Such authority as there is appears to be to the contrary. The issues are discussed by Glanville Williams in 72 The Law Quarterly Review 522. The author concludes, somewhat tentatively, that where an employee can be regarded as committing a tort, even though there is a procedural bar to an action against the employee, the principal can "plausibly" be held liable for the "unenforceable tort" on the part of the employee, so long as the procedural bar "does not enure" to the advantage of the employer (p 525). The author cites two cases. In Broom v. Morgan (1952) 1 QB 597 (C.A.), the Court of Appeal decided, at a time when no husband or wife was entitled to sue the other for a tort, that the employer was liable for the tort committed by the employee husband against the wife. In Dyer v. Munday (1895) 1 QB 742 (C.A.) an employee committed an assault in the course of his employment and was convicted and fined. It was held that although the conviction raised a statutory bar against an action for damages against the employee, the perpetrator of the assault, it did not bar proceedings against the employer.

6. In my view, the operation of ss.44 and 45 of the Compensation Act does not relieve an employee of the Commonwealth of the duty to take reasonable care for the safety of fellow employees. If there is an act or omission constituting a breach of that duty, the employee committing the act or making the omission is to be regarded as committing a tort, although it is a tort in respect of which, subject to s.45, no action lies against the Commonwealth, a Commonwealth authority or a Commonwealth employee. If the Compensation Act were to relieve Commonwealth employees of the duty to take reasonable care for the safety of their fellow employees, it would require very clear words to that effect. The words are simply not there. Conversely, the Compensation Act does not deprive an injured Commonwealth employee of a right of action against a negligent fellow employee. It does not prevent the cause of action from arising. It does not deprive the negligent act of the fellow employee of its tortious quality. What the Compensation Act does in this regard is to set up a bar, in certain circumstances, which prevents the injured Commonwealth employee suing the fellow. If the injured employee does not exercise the right to election provided for in s.45 within the time stipulated, no action will lie either against the fellow employee or against the Commonwealth or Commonwealth authority. If, however, the election is made and the injured employee sues, the damages recoverable are limited to certain consequences (those consequences being characterised as non-economic loss) and the damages are limited to a certain amount, fixed at a maximum of $110,000. In my view, the effect of ss.44 and 45 is to circumscribe the right of action against the fellow employee and in certain circumstances to make it unenforceable altogether, but it does not abolish the cause of action.

7. Insofar as the commencement of the headnote to Commonwealth of Australia v. Holland and Another (1991) 24 NSWLR 198 suggests to the contrary, I think that it is wrong. It does not accurately reflect the judgment of Samuels J.A. with whom the other members of the NSW Court of Appeal agreed. Indeed, at p 203 Samuels J.A. said:

"I cannot construe s.44(1)(a) as evincing an intention to

abolish all common law rights relating to work-related

injuries."

8. The issue of whether the Compensation Act abolished rights or causes of action rather than making them unenforceable did not arise in that case.

9. In the present case we do not know whether the respondent was paid compensation under ss.24, 25 or 27 of the Compensation Act. It appears likely that the Commonwealth was liable to pay such compensation to him. We were told that the respondent had not made an election to claim damages. If compensation is payable but has not been paid, the right of election remains under the Compensation Act to claim damages either against the Commonwealth or against the fellow employee alleged to have acted negligently, or possibly against both.

10. The appellant placed considerable reliance on the statement of Dixon C.J. in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 473 relating to s.47 of the Motor Car Act 1951 (Vic.):

"It is to be noticed that the nominal defendant does not

represent the driver of the unidentified car but is sued upon

his own separate statutory liability, although it is a

liability which exists only when there is a cause of action

against the driver of the car."

11. That passage disposes of the value of the argument based on analogy with the vicarious liability of a principal. It is clear from the words of Dixon C.J. that the liability of the nominal defendant being a "separate statutory liability" is not a vicarious liability. I would, with respect, disagree with the use of the term "vicarious liability" by Blackburn C.J. in Parker v. The Commonwealth of Australia and Another (1984) 53 ACTR 11 at 13 where his Honour referred to "the vicarious liability of the nominal defendant for the unidentified driver"; or rather I think that his Honour did not intend to use the term literally and that it was used by way of obiter dictum only. Furthermore, the statement of Dixon C.J. appears to recognize that the cause of action against the driver, whilst not abolished, is made unenforceable by the section itself. Although Dixon C.J. had Victorian legislation under consideration, s.85 of the Motor Traffic Act involves no different principle. The cause of action which arises, or the right of action which an injured person acquires, when the person is injured by the negligent driving of an uninsured motor vehicle is made unenforceable against the owner or the driver by s.85 itself. That the cause of action is sterile, or that the right of action is made unenforceable against the driver who happens to be a fellow Commonwealth employee has, in my view, no relevant effect on the liability of the nominal defendant.

12. The purpose of Part V of the Motor Traffic Act is not without relevance. In recognition of the high cost of death and injury on the roads, Part V is concerned with insurance against liability incurred by the owner or driver of a motor vehicle for damages for death or injury caused by the use of the motor vehicle on a public street in any part of Australia. Such insurance is compulsory in the sense that it is an offence to drive a motor vehicle on a public street in the Territory unless a current policy of "third party" insurance is in force in relation to that vehicle. The insurance cover ensures that funds are available for the compensation of victims of the use of motor vehicles. As there will be occasions on which persons will be killed or injured by the use of uninsured vehicles, insurers are required to contribute to a fund. Access to that fund may be had by victims by claims against the nominal defendant.

13. However, compulsory third party insurance and, in the case of uninsured vehicles, the ancillary nominal defendant scheme, do not fully displace or bypass the ordinary principles of tortious liability in which fault is an element. It is trite to say that a person suing an owner or driver of an insured motor vehicle for damages in respect of death or injury arising from the use of the motor vehicle must prove fault on the part of the owner or driver. It has never been questioned that in an action against the nominal defendant fault on the part of the owner or driver of an uninsured vehicle must, likewise, be proved. Although fault on the part of the owner or driver has ceased to be the basis of a victim's entitlement to compensation in some parts of Australia which have introduced transport accident compensation schemes and the like, it is still part of the third party insurance scheme in the Australian Capital Territory. There is nothing in the Compensation Act, in my view, which deprives a person who sustains injury from the negligent driving of an uninsured motor vehicle from making and enforcing a claim for damages against the nominal defendant under s.85 of the Motor Traffic Act.

14. It may be that this gives rise to anomalies. It may be that a person suing the nominal defendant is in a better position than a person suing the owner or driver. However, it is not clear whether a Commonwealth employee who recovers damages and whose right to Commonwealth compensation is brought thereby to an end by s.48 of the Compensation Act is in a better position than one who refrains from suing and remains entitled to Commonwealth compensation. In any event, it is not for the Court to seek to construct a system of compensation and damages which will remove anomalies from the continuing and combined operation of two pieces of legislation which were never intended to have any impact upon each other. As Taylor J. said in The Nominal Defendant v. Hook [1962] HCA 50; (1962) 113 CLR 641 at 655:

"...the simple fact is that the Act creates a series of novel

situations for which, in relation to the matter under

discussion, the rules of evidence make no specific, or perhaps

appropriate, provision. To attempt to apply them without any

qualification resembles an attempt to place a square peg in a

round hole. But it is not the function of the Court to frame a

special set of rules in an endeavour to avoid the anomalous

situations which may arise under the Act."

15. On the assumption that leave to appeal is granted, I would answer the question in the special case in the affirmative and order the appellant to pay the respondent's costs of the appeal.

RYAN AND GUMMOW JJ. The issues that arise on this appeal concern the inter-relation between certain provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Compensation Act") and the Motor Traffic Act 1936 (ACT) ("the Motor Traffic Act").

2. The Motor Traffic Act was formerly the Motor Traffic Ordinance 1936 (ACT) made under the Seat of Government (Administration) Act 1910, as amended from time to time. However, by reason of sub-s.34(4) of the Australian Capital Territory (Self Government) Act 1988 ("the Self Government Act") the Ordinance is to be taken to be an enactment which may be amended or repealed accordingly by the Legislative Assembly for the Australian Capital Territory ("the Territory"), pursuant to s.22 of the Self Government Act. A provision of an enactment of the Territory, such as the Motor Traffic Act, has no effect to the extent that it is inconsistent with a law of the Parliament which is in force in the Territory, such as the Compensation Act; but such a provision is to be taken as consistent with the federal law "to the extent" that it is "capable of operating concurrently" with it. This is the effect of s.28 of the Self Government Act. No question arises under s.109 of the Constitution in such cases. Section 122 of the Constitution, of course, supports the new regime for the Territory.

3. In Australian law, differing concepts of inconsistency or repugnancy between laws have been applied (a) between imperial and local laws, pursuant to s.2 of the Colonial Laws Validity Act 1865, 28 and 29 Vict. c.63 (Imp), (b) between federal and state laws pursuant to s.109 of the Constitution, and (c) between different laws of the one legislature. See Suatu Holdings Pty Limited v Australian Postal Corporation (1989) 86 ALR 532 at 546-7. The coming of self-government to the Territory adds a further dimension to the operation of contrariety in our legal system.

4. On this appeal there is no contention that the relevant provisions of the Motor Traffic Act are otherwise than capable of operating concurrently with the relevant provisions of the Compensation Act. The issue concerns the nature of that concurrent operation upon particular facts.

5. In opening the appeal counsel for the appellant ("the Nominal Defendant") indicated that whilst a notice of appeal had already been filed without leave, leave was necessary. Counsel for the respondent did not offer any real resistance to the grant of leave, recognising that significant issues were involved. In our view, leave should be granted and the document filed 10 January 1992 as a notice of appeal should stand as the notice of appeal.

6. The appeal is brought from an order of a Judge of the Supreme Court of the Territory (Higgins J) answering in the affirmative a question posed for the Supreme Court in a special case pursuant to s.192 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) ("the Magistrates Court Act"). Section 192 vests jurisdiction in the Supreme Court to hear and determine a special case stated for its opinion by the Magistrates Court on any question of law that arises in proceedings before it.

7. The special case asked whether, if the learned magistrate should make certain findings, the respondent would be entitled to judgment against the Nominal Defendant. The assumed findings were, that on 19 January 1989 the respondent was a passenger on a fork-lift truck, which was owned by a private firm or company and under hire to the Commonwealth, was an "uninsured motor vehicle" within the meaning of s.49 of the Motor Traffic Act and was being driven on a public street in the Territory by one Leon Tracey who, together with the respondent, was an "employee" within the meaning of s.5 of the Compensation Act, that Leon Tracey drove the fork-lift truck negligently, as a result of which the plaintiff sustained personal injury, and that at the time of that injury, both the respondent and Leon Tracey were engaged in the course of their duties as "employees". The magistrate stated the case after hearing argument on a question of law raised by a motion by the Nominal Defendant to strike out the Statement of Claim.

8. Higgins J answered affirmatively the question whether the respondent would be entitled to judgment against the Nominal Defendant if, after hearing evidence, the learned magistrate should make these findings.

9. Counsel for the Nominal Defendant, the appellant, submits that the claim against the Nominal Defendant is "derivative" of the respondent's cause of action in tort and that the effect of ss. 44 and 45 of the Compensation Act is to "eliminate" any such cause of action against either the Commonwealth, as employer, or against the respondent's fellow employee.

10. Counsel for the respondent pointed out that on the facts as assumed before the Court and by reason of the provisions of the Motor Traffic Act, the respondent must sue the Nominal Defendant if action is to be brought against any party, because the fork-lift truck was an "uninsured motor vehicle" within the meaning of that legislation.

11. The legislative source of the exposure of the Commonwealth to tortious liability has been described by Brennan J in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 117-8 as a "vexed question", even after The Commonwealth v Evans Deakin Industries Limited [1986] HCA 51; (1986) 161 CLR 254. However, irrespective of whence the liability arises, it is clear that for the purposes of the present case, it carries with it the abolition by s.21 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) ("the Law Reform Act") of the doctrine of common employment; s.3 of this legislation provides that it binds the Crown.

12. Nevertheless, certain actions or other proceedings for damages which might thereby otherwise lie against the Commonwealth and between its employees are qualified by the operations of ss.44 and 45 of the Compensation Act. That statute provides for the rehabilitation of Commonwealth employees and for workers' compensation for them.

13. Sections 44 and 45 are as follows: -

"44. (1) Subject to section 45, an action or other

proceeding for damages does not lie against the

Commonwealth, a Commonwealth authority or an employee in

respect of :

(a) an injury sustained by an employee in the course of

his or her employment, being an injury in respect of

which the Commonwealth or Commonwealth authority

would, but for this subsection, be liable (whether

vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an

employee resulting from such an injury;

whether that injury, loss or damage occurred before or after

the commencement of this section.

(2) Subsection (1) does not apply in relation to an

action or proceeding instituted before the commencement of

this section.

45. (1) Where:

(a) compensation is payable under section 24, 25 or 27 in

respect of an injury to an employee; and

(b) the Commonwealth, a Commonwealth authority or another

employee would, but for subsection 44(1), be liable

for damages for any non-economic loss suffered by the

employee as a result of the injury;

the employee may, at any time before an amount of

compensation is paid to the employee under section 24, 25,

or 27 in respect of that injury, elect in writing to

institute an action or proceeding against the Commonwealth,

the Commonwealth authority or other employee for damages for

that non-economic loss.

(2) Where an employee makes an election:

(a) subsection 44(1) does not apply in relation to an

action or other proceedings subsequently instituted by

the employee against the Commonwealth, the

Commonwealth authority or the other employee for

damages for the non-economic loss to which the

election relates;

and

(b) compensation is not payable after the date of the

election under section 24, 25 or 27 in respect of the

injury.

(3) An election is irrevocable.

(4) In an action or proceeding instituted as a

result of an election made by an employee, the court shall

not award the employee damages of an amount exceeding

$110,000 for any non-economic loss suffered by the employee."

14. It is common ground that the respondent has not made an election within the meaning of sub-s.45(1). The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("the Commission") is established by s.68 of the Compensation Act. Subject to the other provisions of Part II of the statute, the Commission is liable to pay compensation in accordance with the Compensation Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment (s.14). The expressions "injury", "incapacity for work" and "impairment" are the subject of definitions in s.4.

15. Section 48 provides, inter alia, that where an employee recovers damages in respect of an injury to that employee in respect of which compensation is payable under the Compensation Act, the employee shall not later than 28 days after the day on which damages were recovered notify the Commission in writing of the recovery of the damages and the amount thereof. Non-compliance with this requirement attracts a penalty of $1,000 (sub-s.48(2)). Further, the employee is liable to pay to the Commission an amount equal to the lesser of the amount of the damages or of compensation paid to the employee before the recovery of the damages and in respect of the injury (sub-s.48(3)). Further, s.50 provides, inter alia, that where an amount of compensation under the statute is paid to an employee in respect of an injury which occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury and proceedings against that person for the purpose of recovering such damages have not been instituted by the employee, the Commission may institute proceedings in the name of the employee for the recovery of damages in respect of the injury. Any damages awarded under a judgment obtained in these proceedings shall be paid to the Commission which shall pay to the employee the balance which remains after the Commission deducts an amount equal to all amounts of compensation paid to the employee in respect of the injury, together with costs (sub-s.50(7)). Thereafter, the employee is not entitled to receive any further amounts of compensation in respect of the injury until the amount of compensation which would otherwise have been payable to the employee equals the amount paid by the Commission to the employee under sub-s.50(7). This follows from sub-s.50(8).

16. With that outline of the scheme established by the Compensation Act in mind, it is appropriate now to turn to certain provisions of the Motor Traffic Act. Subject to a proviso not presently relevant, s.5 states that except where otherwise expressly prescribed, the Act shall bind the Crown and all persons in the service of the Crown. The other relevant provisions are contained in Part V, which is headed "Insurance". Section 49 contains a number of definitions of terms used in that Part. The expression "uninsured motor vehicle" is defined as meaning a "motor vehicle" (itself a term defined in s.4) which is not an insured motor vehicle, but excluded from the definition are motor vehicles which are "the property of the Commonwealth or of any authority under the Commonwealth."

17. Thus, had the fork-lift truck with which this litigation is concerned been the property of the Commonwealth, rather than under hire to the Commonwealth, it would not have fallen within the definition of "uninsured motor vehicle". The point as to the position of motor vehicles which are the property of the Commonwealth is further emphasised by s.50. This states:

"50. Nothing in this Part shall render it obligatory for a

third-party policy or for a policy referred to in

section 83 of this Act to be taken out in relation to

the use of any motor vehicle the property of the

Commonwealth or any authority under the Commonwealth

but the Commonwealth or any such authority shall, in

relation to the use of any such vehicle in respect of

which any such policy is not in force, be under the

same liabilities and have the same rights as an

authorized insurer would be under or have if he had

issued to the Commonwealth or that authority, as the

case may be, a third-party policy or a policy referred

to in that section in relation to the use of that vehicle."

18. Section 51 creates an offence in respect of the use of any motor vehicle on a public street in relation to the use of which there is not in force a third party policy. A third party policy must be issued by an "authorized insurer" (s.54), a term which is defined in s.49 as meaning a person carrying on the business of insurance which is or has been approved by the Minister as an authorised insurer.

19. Section 84 provides for the appointment of a nominal defendant against whom action is to be taken in the name of "The Nominal Defendant". Section 85, so far as is relevant, states:

"85. (1) Every claim for damages in respect of the

death of, or bodily injury to, any person caused by or

arising out of the use of an uninsured motor vehicle in a

public street shall be made to the nominal defendant and not

to the owner or driver of the uninsured motor vehicle and

any proceedings to enforce any such claim for damages shall

be taken against the nominal defendant and not against the

owner or driver of the uninsured motor vehicle.

(2) A claim may be so made and proceedings may be so

taken notwithstanding that the owner or driver of the

uninsured motor vehicle is dead or cannot be found.

(3) Where the death of or bodily injury to any

person is caused by or arises out of the use of a motor

vehicle in a public street but the identity of the motor

vehicle cannot after due inquiry and search be established,

any person who could have enforced a claim for damages

against the owner or driver of the motor vehicle in respect

of the death or bodily injury may enforce against the

nominal defendant the claim which he could have enforced

against the owner or driver of the motor vehicle.

(4) ...

(5) ...

(6) ..."

20. For the purposes of Part V, where bodily injury to any person is caused by the use of an uninsured or unidentified motor vehicle on a public street, any reference to an authorized insurer shall be read as a reference to the nominal defendant (s.79).

21. The primary judge said that the issue for determination was whether the liability of the nominal defendant under s.85 of the Motor Traffic Act was "dependent on the original tort-feasor being amenable to suit for damages for negligence where, as here, there is a statutory immunity from suit". Higgins J said:-

"The cause of action created by the statute is not a mere

transfer to another of the liability of the driver. The

nominal defendant is not vicariously liable for the

negligence of the driver. It is a separate and independent

liability. ... It follows that the statutory cause of

action against the nominal defendant, whilst it substitutes

for that otherwise available against the uninsured and/or

unidentified tort-feasor(s), is a separate and distinct

cause of action. ...

"It follows, it seems to me, that s.44 (of the Compensation

Act) does not bar an action by this plaintiff against the

nominal defendant merely because the action against the

driver and the driver's employer is barred."

22. His Honour also expressed the view that "in the assumed circumstances of this case" Leon Tracey "was prima facie driving as agent of the owner" as a matter of general law, and that "the injured passenger (i.e. the respondent) had a prima facie right of action against the owner (i.e. the hirer to the Commonwealth) accordingly." This liability to suit would then also fall on the nominal defendant under s.85 of the Motor Traffic Act, in addition to the liability of the driver. The special case was silent as to the nature of the hiring arrangements between the owner and the Commonwealth. In our view no such inference of agency should be drawn. The special case was designed to present an issue arising where the nominal defendant stood in place of the driver rather than the owner. On the appeal, counsel for both parties appeared to accept this.

23. The jurisdiction of the Magistrates Court fixed pursuant to the Magistrates Court Act is, it was agreed, now at the maximum of $50,000.

24. Whilst counsel for the respondent sought to put his client in a distinct position as regards the effect of ss. 44 and 45 upon the nominal defendant, there was no dispute that s.15 of the Law Reform Act applied to the action against the nominal defendant. Sub-s.15(1), which is in familiar form, deals with the effects of contributory negligence. It states:-

"Subject to this section, where a person suffers damage as

the result partly of his own fault and partly of the fault

of another person or other persons, a claim in respect of

that damage is not liable to be defeated by reason of the

fault of the person suffering the damage, but the damages

recoverable in respect of the damage shall be reduced to

such extent as the court thinks just and equitable having

regard to the claimant's share in the responsibility for the

damage." (emphasis supplied).

It was conceded that an action under s.85 against the nominal defendant would relevantly be "a claim in respect of that damage" for the purposes of s.15. Likewise, in Parker v Commonwealth of Australia (1984) 53 ACTR 11, Blackburn C.J. held that the nominal defendant was included in the denotation of the phrase "any other tort-feasor" in sub-s.11(4) of the Law Reform Act, a provision dealing with contribution between tort-feasors.

25. The Full Court (Pincus, Foster and Hill JJ.) left open the question of the operations of ss.44 and 45 of the Compensation Act upon common law rights, in Blackman v Australian Telecommunications Corporation (16/8/90, unreported).

26. The primary judge referred to legislation in the Northern Territory and in the States which provides for actions against a nominal defendant along the lines of those provided in s.85 of the Motor Traffic Act. His Honour concluded that in all jurisdictions other than the Northern Territory the legislation expressly or impliedly requires that the owner, or the driver, or both, be or have been legally liable to the injured person for damages in respect of the injury of which complaint is made. His Honour continued:-

"Unless such a condition can be inferred, it would follow

that whilst it is necessary to show that the plaintiff had a

lawful claim for damages against the original tort-feasor, a

defence personal to the tort-feasor is not available to the

nominal defendant (for example, a cross claim or set off).

The nominal defendant claims to be entitled to assert, in

this case, a defence personal to the original tort-feasor."

27. When dealing with s.47 of the Motor Car Act 1951 (Vic), in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 473, Dixon C.J. said:

"It is to be noticed that the nominal defendant does not

represent the driver of the unidentified car but is sued

upon his own separate statutory liability, although it is a

liability which exists only when there is a cause of action

against the driver of the car."

28. It is, of course, well settled that admissions by those in privity with a party to litigation may be given in evidence against that party: Byrne and Heydon "Cross on Evidence" 4th Aust Ed, 1991, para. 33515. The learned authors then indicate (para. 33580) that "special problems arise in respect of legislation enabling plaintiffs injured by unidentified or uninsured motor cars to bring proceedings against a nominal defendant appointed pursuant to the legislation." They point out that in Holloway v McFeeters, supra, the flight from the scene of the collision by the driver of the unidentified vehicle, if an admission by conduct, was not admissible as such against the nominal defendant, but that the evidence that the driver, knowing he had struck and injured the pedestrian, then left him on the roadway, was admissible as part of a res gestae and as tending to prove a fact which the jury were entitled to take into account when weighing the probabilities.

29. In Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641, the High Court was dealing with the New South Wales legislation in relation to admissions made by the driver of an uninsured motor vehicle. Dixon C.J. (at 645) said:-

"It is impossible to see any ground at common law why his

statement should be admissible against the Nominal

Defendant. The liability of the Nominal Defendant depends

upon the Act. The driver in making the statement was not

speaking on his behalf and had no authority to speak on his

behalf. There is no provision in the Act which would make

his statement a statement, so to speak, of the Nominal Defendant."

"(T)he simple fact is that the Act creates a series of novel

situations for which, in relation to the matter under

discussion, the rules of evidence make no specific, or

perhaps appropriate, provision. To attempt to apply them

without any qualification resembles an attempt to place a

square peg in a round hole. But it is not the function of

the Court to frame a special set of rules in an endeavour to

avoid the anomalous situations which may arise under the

Act."

30. The circumstance that the relevant legislation may not operate in such a way as to give rise to a relationship between the nominal defendant and the driver of the uninsured or unidentified vehicle which answers the criteria for privity between them does not, of itself, supply an answer to the question in this case of the inter-relationship between s.85 of the Motor Traffic Act and ss. 44 and 45 of the Compensation Act.

31. It should be noted that s.85 of the Motor Traffic Act makes distinct provision in relation to the use of uninsured motor vehicles and unidentified motor vehicles. The latter category is dealt with in sub-s (3) which speaks in terms of enforcing against the nominal defendant "the claim" that the plaintiff "could have enforced" against the owner or driver of the unidentified vehicle. Plainly, in this class of case failure to establish the identity of the motor vehicle does not put the claimant in any better position than if the claimant had been able to identify the vehicle. The "claim" does not change its nature, save for the imposition of liability in respect of it on the nominal defendant.

32. It would be curious if a different result ensued in cases in the first category, that concerned with uninsured vehicles. Certainly, sub-ss (1) and (2) do not in such direct terms speak of enforcement against the nominal defendant of the claim which the plaintiff could have enforced against the owner or driver, if the vehicle had been insured. But, in our view, upon its proper construction sub-s (1) operates upon the claim which might otherwise be made to the owner or driver, and requires that claim, and no other, to be made instead to the nominal defendant. Further, any proceedings to enforce that claim are not to be taken against the owner or driver. They are to be taken against the nominal defendant. But the subject of all these steps is the one claim, that which, but for s.85, would be made to the owner or driver. Accordingly, there is no relevant difference between the operation of s.85 upon the two categories of uninsured and unidentified motor vehicles.

33. Section 85 speaks of "claims" not "causes of action". It may be a reasonable description of the operation of the statute to say that if its effect is to direct a plaintiff, in respect of a cause of action against A, to sue not A but B, and to subject B to that liability accordingly, the statute creates a distinct cause of action against B. But the question remains of identifying the characteristics or elements of that cause of action against B. That depends upon the construction of the statute in question.

34. The Motor Traffic Act does not in terms identify one or more causes of action in respect of which it imposes liability on the nominal defendant. As is made clear by the passage from Holloway v McFeeters quoted above, the statute deals only with liability to suit on causes of action arising at common law or from some other source. A cause of action consists of all those facts which, if traversed, a plaintiff must prove to obtain judgment. (See e.g. Cooke v Gill (1873) LR 8 CP 106 at 116, Read v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at 25 Lord Wright said of a cause of action in negligence:-

". . . . it properly connotes the complex concept of duty,

breach, and damage thereby suffered by the person to whom

the duty was owing: on all this the liability depends, and

if this liability is attached by law formally to the

employer, as happens in the case of a breach of the

statutory duty, the whole position is I apprehend correctly

described as "personal negligence of the employer."

35. The High Court cases indicate that the nominal defendant is not a privy of the owner or driver, for such purposes as the law of evidence. But, in our view, s.85 does not put the claimant in any better position as to the constituent elements of the claim than if the claim were made against the owner or driver. The nominal defendant does not represent the owner or driver and is sued upon a distinct statutory liability, but the claim to which the nominal defendant is subjected is that which otherwise might be made against the owner or driver.

36. The concurrent operation of s.85 of the Motor Traffic Act with s.44 of the Compensation Act has the effect, in a case such as the present, that the action for damages which otherwise might be made by the respondent against the driver does not lie, subject to the operation of s.45. The result is that there is no claim in respect of which s.85 of the Motor Traffic Act subjects the nominal defendant to liability. Such a provision that a cause of action does not lie even if predicated on a cause of action against a particular tort-feasor does not create a defence personal to the tort-feasor like the cross-claim or set off instanced by the learned primary judge. A cross-claim or set off usually is understood to involve the invocation of a separate cause of action or equitable claim which is allegedly enforceable against a plaintiff. The question posed by the special case should have been answered in the negative.

37. On the assumed facts no case is made under s.45 of the Compensation Act that (i) compensation was payable under ss. 24, 25 or 27 in respect of an injury to the respondent and (ii) before an amount of compensation was paid, the respondent elected in writing to institute an action against the Commonwealth or Leon Tracey for damages for non-economic loss suffered by the respondent as a result of the injury, so that sub-s 44(1) would not have applied in relation to an action subsequently instituted by the respondent against the Commonwealth or Leon Tracey.

38. However, upon the facts that are assumed, if such an action were instituted against the nominal defendant then s.85 of the Motor Traffic Act would be capable of concurrent operation with the Compensation Act. In particular, the restriction upon the amount of damages recoverable which is imposed by s.45(4) would apply to the claim against the Nominal Defendant.

39. It is unnecessary to consider, upon this appeal, whether and if so to what extent, ss. 46, 48 and 50 of the Compensation Act would apply as between the respondent, the Nominal Defendant and the Commonwealth.

40. Leave to appeal should be granted and the document filed 10 January 1992 as a notice of appeal should stand as the notice of appeal. The appeal should be allowed and, in lieu of the answer given by the primary judge, the question posed by the special case should be answered "No". No order as to costs is sought by the notice of appeal.