Scoles v Commissioner for Government Transport

Section 232 (2) provides that actions against the Commissioner of the description stated shall be commenced within one year after the act or omission complained of was committed or made. The cause of action in the present case arose on 19th March 1954 and the writ was issued on 2nd March 1955. So at the date of the issue of the writ a failure to give the required notice was irreparable. The document or documents relied upon as constituting the notice do not give the particulars prescribed but it is said and not contested that if they or either of them amounts to a notice in writing of such intended action and a notice under the section, the defects might have been cured by the judge holding that the defendant had not been prejudiced by the defects or inaccuracies. The question seems clearly enough thus to be narrowed to the simple point whether the documents or either of them amounts to a notice of intended action and a notice under the Act.

The plaintiff, who was employed by the Department of Motor Transport, suffered injuries on his way home from work. He received worker's compensation from that department as his employer but owing to the circumstances of the accident an action by the plaintiff for damages would lie against the Department of Government Transport, that is to say against the defendant based on the negligence of its servants, a negligence since admitted.

The claims agent of the defendant interviewed the plaintiff's wife as to the occurrence, with the result that five days after the event a form was filled in embodying a claim. It was done in pencil and signed by the plaintiff. It is needless to describe the document in full. It was a claim against the defendant under the name then current, the Department of Road Transport and Tramways. For present purposes it is enough to say that it was headed "Claim - Statement of Particulars and Nature of Accident". It gave adequate information as to many relevant matters though in a very brief form, but it contained no express intimation that the plaintiff contemplated instituting an action against the defendant.

Some months later, to be exact on 22nd July 1954, the plaintiff signed a letter which may be taken to have been addressed to the Officer in Charge of the Claims Branch of the defendant and to have been left with him. The letter is as follows: "To The Officer in Charge, Claims Branch. Enclosed please find a list of personal effects damaged and lost by me in a collision between two trams at Crystal St. and Parramatta Rd. Leichhardt on the 19th March 1954 for which I claim damages to the amount enclosed. Also a claim for personal injuries will follow at a later date. Yours faithfully, W. C. Scoles." On the back of the letter were mentioned certain articles of clothing and the like and the value of them stated.

Unless either of these documents or a combination of them amounts to notice of action within s. 233 the condition precedent imposed by that provision was not complied with. We think that it is unfortunately only too plain that the documents cannot amount to a notice of intended action. It is important to bear in mind that the action is for personal injuries and it is the latter part of the letter which applies, namely the sentence "Also a claim for personal injuries will follow at a later date." The letter cannot amount to a notice of intended action unless by express language or by necessary implication it manifests an intention to institute an action against the defendant. It does not express such an intention and we are unable to see any material from which it may be implied. So far as personal injuries are concerned it does no more than indicate an intention to put forward a claim at a later date. The claim form which the plaintiff had already signed, dated 24th March 1954, is in no better case. It gives additional particulars and by the heading "Claim" it may appear to propound a claim as distinguished from merely stating that a claim will be made later as the letter does. But there is nothing in it alluding to the probability of suit, still less of an intention to sue. No more can be obtained from the two documents by combining them.

Herron J. adopted the contrary view to that which we have expressed. He thought that if a layman says he has lost his personal effects and claims damages to the amount which he mentions in respect of them, that was another way of saying that he contemplated bringing an action. His Honour spoke of the implication to be drawn from the documents. In our opinion there is no intention of bringing an action sufficiently implied. The document is quite consistent with an intention to submit a claim for settlement. Only upon a rejection of the claim or a failure to settle it would the question of suit arise.

We agree entirely with the reasons for judgment given by Ferguson J. In our opinion the appeal should be dismissed.

The plaintiff was a passenger in a tram-car controlled and operated by the servants of the Commissioner for Government Transport. He was injured when it, by the negligence of the Commissioner's servants, came into collision with another of the Commissioner's tram-cars. This action is thus brought for something "done or omitted by the Commissioner under the Act" (i.e. the Transport Act) within the meaning of s. 233 (1). (Callinan v. Railway Commissioners [1] ; Luplau v. Victorian Railways Commissioners [2] ; Lyles v. Southend-on-Sea Corporation [3] ; Griffiths v. Smith [4] ; Firestone Tire & Rubber Co. (S.S.) Ltd v. Singapore Harbour Board [5] ). A notice of action was thus necessary. That is not disputed. Sub-section (3) of s. 233 provides a considerable measure of relief from the strict statutory requirements as to the form of such a notice. It allows the judge before whom the action is tried to determine whether or not the defendant was prejudiced in his defence by any defect or inaccuracy in the notice. But this can only apply when a document is given that can properly be called a notice of action. Collins J., before whom the action was tried, and Herron J. in the Full Court thought that the appellant's letter was, in the circumstances, such a notice. Owen and Ferguson JJ., for reasons given by Ferguson J., thought that it was not, as it did not state, expressly or by implication, that the appellant intended to pursue his claim by action. Reluctantly I think the latter view is right - reluctantly because indignation tends to overmaster judgment. Counsel for the respondent said that giving a notice of action was a condition precedent to the right of action. That is so; but it is a procedural condition only. It is not an ingredient of the cause of action (Harding v. Lithgow Corporation [6] ). The absence of such a notice, if not waived, bars the remedy; but it does not extinguish the right. The position may perhaps be different under differently worded provisions in some other Acts requiring notices of action, such as that in the Fire Brigades Act, 1909-1956 (N.S.W.), s. 47. A defendant entitled to notice under the Transport Act must, if he would take advantage of absence of notice, show by his plea that the action is one in which notice was required (Garton v. Great Western Railway Company [7] ; Davis v. Budd [8] ), and also that no notice was in fact given. The first matter sufficiently appears here on the face of the declaration. The second is met by the plea of the general issue by statute. When a defendant in New South Wales seeks to rely upon his public office or employment as providing a justification, he may plead the general issue pursuant to the General Legal Procedure Act 1902, s. 6, and give the special matter in evidence by way of justification. When he wishes to rely upon special statutory limitations of time or, as here, on non-compliance with statutory provisions for notice of action, he may, if so authorized by the particular statute, raise these defences under a plea of the general issue, noting the statute at the foot of the plea pursuant to O. XXX, r. 36, of the Supreme Court Rules. That was done here. In cases where the general issue by statute is not applicable the matter must be raised specially, as it is not covered by the ordinary plea of not guilty (Supreme Court Rules, O. XXX, r. 30; Edwards v. Great Western Railway Company [1] and other cases referred to in Chitty's Archbold's Practice 12th ed. (1866) p. 1292). During the argument I thought that the form of s. 233 (1) created some difficulties. On consideration, I think that the position here is not substantially different from that which can arise under the Statute of Limitations, where the same logical difficulties arise [2] . The Statute of Limitations also affects the remedy only and not the right; so that Vaughan B. said in Chapple v. Durston [3] , "it is optional whether the defendant will insist upon the statute or waive it. If he intends to insist upon it, he should plead it to prevent surprise, and if he does not, it should be presumed he intends to waive it. This is the view taken by the late Mr. Serjt. Williams, than whom a sounder lawyer, or more accurate special pleader has rarely done honor to his profession" [4] .

1. (1901) 1 S.R. (N.S.W.) 89; 18 W.N. 94. 2. (1886) 12 V.L.R. 18. 3. (1905) 2 K.B. 1. 4. (1941) A.C. 170. 5. (1952) A.C. 452. 6. (1937) 57 C.L.R. 186. 7. (1858) El. Bl. & El. 837 [ 120 E.R. 721]. 8. (1957) 75 W.N. (N.S.W.) 1. 9. (1851) 11 C.B. 588, at p. 650 [138 E.R. 603, at p. 630]. 10. (See 2 Wms. Satnd. 63-63c [85 E.R. 677]. 11. (1830) 1 C. & J. 1 [ 148 E.R. 1311]. 12. (1830) I C. & J., at p. 9 [ 148 E.R., at p. 1314].

The reason for a notice of action is to enable a defendant to investigate the matter complained of and, if he wishes, to tender amends, a statutory right to do so commonly accompanying the provision for notice of action (Jones v. Bird [5] ). Here officers in the Government Transport Department knew all along of the accident and of the appellant's injuries. An officer visited him to obtain particulars from him and to record his claim on a form that he, the appellant, signed. The only result of his failure to give further notice than he did was to provide the department with a defence that in the circumstances was quite unmeritorious. The solicitor for the respondent wrote to the appellant's solicitor before the trial saying that: "It is confirmed that the question of negligence does not arise in this case, it being admitted for the purposes of the action that the accident giving rise to the litigation resulted from the negligence of an employee, for the legal consequences of which the defendant is liable". But this seemingly unequivocal admission of liability had to be read, it appeared, with strict regard to the adjective "legal" as meaning that the defendant was relying on the absence of notice of action. So the case went to trial with that sorry excuse as the Commissioner's only defence. The Commissioner was not himself personally responsible for his department's refusal to accept responsibility for the wrongdoing of its servants. That decision was taken by some subordinate officer of the department. It seems to depart from the attitude one would expect the Crown or those in charge of a government enterprise to take. Counsel for the respondent urged, however, as in some way bearing on this, that the appellant had received payments by way of workers' compensation from his employer, the Commissioner of Motor Transport, another government corporation related to the respondent Commissioner. But how that concerned the respondent I did not understand. The plaintiff is entitled to such measure of compensation, whether by way of damages or workers' compensation, as the law says he may have - not so much as some official in a government department thinks it proper he should have. The respondent might have waived its technical defence. But the Legislature of New South Wales has empowered it to insist on it if it wishes. In my view we must, therefore, dismiss the appeal. The judgment of K. A. Ferguson J. is, I think, right in law. I would add only, as D. G. Ferguson J., in not dissimilar circumstances, once did, that if the question for us depended upon justice and common honesty the answer would be different. What Cullen C.J. said in the same case (Smith v. Hudson [1] ) ought not to be forgotten.

1. (1822) 5 B. & Ald. 837, at p. 845. [ 106 E.R. 1397, at p. 1400]. 2. (1921) 21 S.R. (N.S.W.) 557.