State Government Insurance Office (Qld) v Crittenden

The question for our decision in this appeal is whether the cover provided by a policy of insurance, by which the insurer undertook to indemnify and keep indemnified the insured against all sums for which he might be legally liable by way of damages in respect of the insured's motor vehicle for accidental bodily injury (fatal or non-fatal) to any person in any State or Territory of the Commonwealth of Australia where such injury is caused by, through or in connexion with such vehicle, extends to the insured's liability to a husband for loss of his wife's services and society as a result of bodily injuries caused to her by the operation of such motor vehicle. The policy in question was issued and taken out in conformity with s. 3 (1) of The Motor Vehicles Insurance Acts, 1936 to 1961 Q. and it was in the form prescribed by reg. 1 of the regulations made under that Act.

The Supreme Court of Queensland was of the opinion that the question should be answered in the affirmative but there has been some conflict of opinion in some of the State courts and in New Zealand on what is, for all practical purposes, the same question: see Joyes v. National Insurance Co. of New Zealand Ltd. [1] ; Walton v. Fawcett [2] ; North British & Mercantile Insurance Co. Ltd. v. Smith [3] ; and cf. Boyle v. The Nominal Defendant [4] .

1. [1932] N.Z.L.R. 802. 2. [1948] S.A.S.R. 158. 3. [1960] V.R. 78. 4. [1959] S.R. (N.S.W.) 413.

The words of the policy follow the words of s. 3 (1) of the Act which provides that "the owner of any motor vehicle shall", with some immaterial exceptions, "at all times during the registration, or as the case may be, any renewal of the registration of such motor vehicle indemnify himself and keep himself indemnified by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer against all sums for which he or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person". It is the contention of the appellant that a liability for damages to a husband for the injury caused to him by the loss of the services and society of his wife resulting from bodily injury arising out of the use of a motor vehicle is not, to adapt the words of the policy, a liability for damages for accidental bodily injury to any person.

The question, of course, is one of construction and requires us to decide whether the words of the policy "for accidental bodily injury" limit the liability of the insurer to the damages payable to a person who has, himself, suffered bodily injury or whether the relevant words are descriptive of a somewhat broader connexion between the damages recoverable and some "accidental bodily injury" to any person. The use of the word "for" to indicate the connexion intended raises a preliminary textual difficulty but standing alone, and giving it literal significance, it would favour the resolution of the question by acceptance of the first-stated proposition. However whether it should be given a narrow literal significance is the initial question. Considered in the context of the Act, which must be taken to govern the construction of the words of the policy this narrow view is not, I think, open. The Act, itself, is expressed to be an Act to require the owners of motor vehicles to insure against their liability to pay compensation on account of injuries to persons caused by, through, or in connexion with such motor vehicles and the provisions of s. 4A, 4B and 4F, to which I shall refer later, use the expression in respect of accidental bodily injury as if it were interchangeable with the expression used in the policy and I think that it is impossible to give to the word "for" any narrower meaning than would be indicated by the expression "in respect of". That expression was thought by Fullagar J. in a somewhat similar context to be wider than the preposition "for" when considered alone and was thought to be "capable of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured": Unsworth v. Commissioner for Railways [1] . According to Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly [2] , "The words "in respect of" are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer" [3] . Section 4A of the Act gives a direct right of action against an insurer to any person who could have obtained a judgment in respect of accidental bodily injury where the owner of the vehicle is dead or cannot be found. Section 4B of the Act provides that where a judgment for damages is obtained against the owner of a motor vehicle in respect of accidental bodily injury (fatal or non-fatal) to any person caused by, through or in connexion with such motor vehicle as well as in respect of some other loss or damage the court shall (for the purpose of fixing the liability of the office or licensed insurer) as part of such judgment adjudge what portion of the amount of the judgment is in respect of such bodily injury, and shall direct what portion of and in what manner any costs awarded as part of such judgment shall be apportioned to the portion of the amount awarded in respect of such bodily injury. Section 4F (2) provides that every claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connexion with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable under the Act were it insured thereunder at the material time, may be made to The Nominal Defendant (Queensland) and any action to enforce such claim may be brought against The Nominal Defendant (Queensland). It is plain that these sections deal with the same area of liability as s. 3 (1) and that, as used in the Act, the word "for" and the expression "in respect of" were not intended to indicate any difference in the connexion intended between the two subject-matters. But to regard the word "for" as equivalent to the expression "in respect of" does not provide a ready solution to the problem; it still leaves us with the question whether the somewhat wider significance of the latter expression comprehends such a claim as is in question in this case.

1. (1958) 101 C.L.R. 73, at pp. 87, 88. 2. [1941] V.L.R. 110. 3. [1941] V.L.R., at p. 111.

The next thing to be noticed in the policy is the presence of the words in parenthesis - "fatal or non-fatal" - to which the Supreme Court attached considerable significance. I agree with the observations of Gibbs J. that the presence of the word "fatal" clearly indicates that it was the intention that the cover should extend to damages recoverable in an action under s. 12 of The Common Law Practice Acts, 1867 to 1940 by the dependants of a person whose death had resulted from accidental bodily injury arising out of the use of a motor vehicle. Such an action is not "an action to recover damages or compensation in respect of personal injury" (see cases referred to in Unsworth v. Commissioner for Railways [1] ) but it is clear that damages recoverable in such an action are, within the meaning which must be assigned to the policy, damages for accidental bodily injury resulting in death. In truth, however, such damages are not strictly in respect of physical injuries resulting in death; they are damages recoverable pursuant to s. 12 for the loss a dependant has sustained as the result of the death. But I do not think the fact that the cover provided by the policy extends to such a case provides a ready solution to the present problem for the conclusion does not depend upon the use, by themselves, in the policy, of the words "for accidental bodily injury" but rather upon the use of the word "fatal" which follows that expression in parenthesis. In other words the policy covers not only liability for damages with respect to accidental bodily injury to any person but, additionally, liability for damages which result from the death of any person from accidental bodily injury.

In Unsworth v. Commissioner for Railways [2] it was held that proceedings for contribution under s. 3 of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 Q. was not, within the meaning of s. 121 of The Railways Acts, 1914 to 1955 Q., an action brought against the Commissioner to recover damages or compensation in respect of personal injury. However, in Genders v. Government Insurance Office of N.S.W. [1] four members of this Court thought that proceedings for contribution by one tortfeasor against another fell within the cover provided by a policy which insured the latter against all liability incurred by him "in respect of the death or bodily injury to any person caused by or arising out of the use of a motor vehicle". This conclusion was reached in the course of a closely reasoned judgment which examined the provisions of the Motor Vehicles (Third Party Insurance) Act, 1942 N.S.W. relating to compulsory insurance. In the course of the judgment it was pointed out that the language of the Act under which the claim for contribution was made and, of course, the language of the policy itself, was adopted before liability for damages for personal injuries "might be imposed indirectly by a claim for contribution as well as directly". "But", it was said, "it is all a liability to pay compensation for the same loss and damage and that loss and damage is in respect of the death of or bodily injury to a person caused by or arising out of the use of the insured motor vehicle. To argue that in the case of a claim for contribution it is not a liability in respect of such death or bodily injury but in respect of the judgment or other ascertainment of the claimant's liability is to overlook the fact that the obligation to contribute is the consequence of the liability in respect of the death or bodily injury which the insured who is called upon to contribute incurred and that contribution is only a method of realizing that liability or, in other words, of enforcing it to the extent of the due proportion to be borne. The indemnity given by the insurance policy is an indemnity against liability for wrong and extends in terms to the whole liability in respect of the death or bodily injury and therefore should be understood as covering every part of it, however that liability may be enforced, that is to say, whether directly or indirectly" [2] . This decision is not precisely in point in the present case but it seems to be of considerable assistance for it does acknowledge that the cover envisaged by the words "for" or "with respect" to "accidental bodily injury" is not confined to a liability to pay damages to the injured person himself; in other words, the damages payable by way of contribution by one tortfeasor to another is within the meaning of the policy, a liability to pay damages "for" or "in respect of" accidental bodily injury.

1. (1958) 101 C.L.R. 73. 2. (1959) 102 C.L.R. 363. 3. (1959) 102 C.L.R., at pp. 379, 380.

Further, it seems to me, the provisions of s. 3 (2A) of the Act themselves recognize that the cover provided by the policy is not confined to the liability of the insured to pay damages to the person who has suffered the accidental bodily injury. That sub-section provides that if the owner of a motor vehicle becomes legally liable by way of damages in respect of such motor vehicle for accidental bodily injury to a person who is a worker within the meaning of The Workers' Compensation Acts, 1916 to 1939 Q., then any compensation under such last-mentioned Acts in respect of which the State Government Insurance Office is entitled to be indemnified by such owner shall be, and is thereby declared always to have been, damages within the meaning of this Act. This sub-section was enacted in 1940 having in mind the fact that the workers' compensation legislation of Queensland provided that in cases where the injury for which compensation was payable by the Insurance Commissioner under the Act was caused under circumstances creating also a legal liability in some other person to pay damages in respect thereof, the Insurance Commissioner should be entitled, if the worker had recovered compensation, to be indemnified by the person so liable to pay damages as aforesaid. The only point of sub-s. (2A) was, of course, to put it beyond question that a liability to indemnify the State Government Insurance Office was, within the meaning of sub-s. (1) of s. 3, a liability by way of "damages" for accidental bodily injury and, therefore, within the cover provided by a policy issued pursuant to the Act.

It is clear that a liability on the part of one joint tortfeasor to make a contribution to another and the liability to indemnify an insurer in respect of compensation paid to a workman constitute, within the meaning of the policy, a legal liability by way of damages "for" or "in respect of" accidental bodily injury. It is, therefore, beyond question that the cover provided by the policy is not limited to a liability to pay damages to the injured person himself and that, to this extent at least, the appellant's argument must be rejected. What then remains of the argument? To my mind once this point is resolved against the appellant it appears that the terms of the policy cover the insured against all legal liability for damages in respect of accidental bodily injury to any person whether the claim is asserted by the injured person or by any other person whose rights have been infringed as a direct result or consequence of the injury. Indeed to hold otherwise would mean that the policy does not cover the insured against his liability in cases where a husband or parent who, having been deprived of the services of his wife or child by accidental bodily injury and who, having provided suitable medical and hospital attention for them, has recovered from the insured not only damages for the loss of their services but also the reasonable cost of medical and hospital attention. Whether or not a husband or parent could recover expenses of the latter character unless he had also been deprived of their services may be open to question (see Hall v. Hollander [1] ; Grinnell v. Wells [2] ; Evans v. Walton [3] ; and cf. Beckerson and Beckerson v. Dougherty [4] ) but it is clear enough, in my opinion, that the policy covers, and was intended to cover, an insured against such expenses in cases where the liability may be enforced.

1. (1825) 4 B. & C. 660 [107 E.R. 1206]. 2. (1844) 7 Man. & G. 1033 [135 E.R. 419]. 3. (1867) L.R. 2 C.P. 615. 4. [1953] 2 D.L.R. 498.

This appeal is against a judgment of the Full Court of the Supreme Court of Queensland overruling a demurrer by the State Government Insurance Office (Queensland) as third party to a statement of claim delivered by the defendant Crittenden. The ground of the demurrer was that, if the defendant be liable in the action to the plaintiff Purkess, that liability is not covered by the third party insurance granted by the State Government Insurance Office to Crittenden. The plaintiff's claim is for the loss of consortium and the point at issue between the parties is whether such damages brought about by injury to the plaintiff's wife caused by the defendant's alleged negligent use of an insured motor vehicle would be "damages in respect of such motor vehicle for accidental bodily injury to any person".

There is little doubt that compulsory third party insurance is intended broadly to afford protection to users of motor vehicles who become subject to liability because of bodily injury caused to others by the use of their motor vehicles, and to persons who become entitled to damages by reason of the bodily injury so caused. The appellant contends, however, that in Queensland, by reason of the wording of s. 3 of The Motor Vehicles Insurance Acts, 1936 to 1961, this protection is limited to persons who actually suffer bodily injury - and, in the case of fatal bodily injury, to the dependants of the deceased - and to those liable in damages to persons so injured. The contention, put in the language of statutory construction, is that it is only liability to a person or the estate of a person who himself suffers "accidental bodily injury" from the use of a motor vehicle which is correctly described as liability for damages "in respect of such motor vehicle for accidental bodily injury to any person".

I do not think the section, which is intended to meet a well-recognized social and economic problem, should be construed so narrowly as to reduce it to but a partial solution of that problem and I do not accept the appellant's narrow construction of such a beneficial provision. I am prepared to uphold the judgment appealed against on the ground that where a husband is entitled to damages for the loss of the consortium of his wife owing to injury caused to her by the use of a motor vehicle, the person liable is a person legally liable "by way of damages in respect of such motor vehicle for accidental bodily injury to any person". In such circumstances, the "any person" who suffers "accidental bodily injury" is the wife, and the liability in damages of the person responsible for the injury to the wife is a liability in respect of such motor vehicle for accidental bodily injury to the wife. It is true that in establishing such liability the plaintiff must prove more than the negligent use of the defendant's motor vehicle and his wife's injury caused thereby; he will also have to prove his own damages due to his wife's injury. This further element, however, does not, in my opinion, take the liability outside the description of a liability for damages "in respect of such motor vehicle". The plaintiff's action, to use the language of Kitto J. in Curran v. Young [1] , is "an action for the damage caused to the husband by the injury of the wife" by reason of the use of the motor car. Such damages seem to me to fall within the conception of "damages in respect of" a motor vehicle.

The appellant had, of course, to concede that s. 3 (1) applies to indemnify a person liable to damages at the suit of the dependants of a person killed by a motor car. The significance of this for present purposes, regardless of how it comes about, is that the section does unquestionably provide an indemnity against a liability which depends not only upon proof of death caused by the negligent use of a motor vehicle, but depends in addition upon proof of dependancy, and yet is a liability for damages "in respect of such motor vehicle for accidental bodily injury to any person". In an action for loss of consortium, the proof of the husband's loss corresponds, in my opinion, to the proof of loss by members of the deceased's family - that is, dependancy - in a Lord Campbell's Act claim.

In his careful and comprehensive judgment in the Full Court, Gibbs J. analyses (a) other provisions of the Act to support construing the words "for accidental bodily injury" in s. 3 (1) as broadly equivalent to "in respect of accidental bodily injury" and (b) authorities bearing upon the present problem decided in New South Wales, Victoria, South Australia and New Zealand. I would regard it as supererogatory to do more than to express my agreement with what his Honour has said about these sections and decisions.

I agree that this appeal should be dismissed. The Act (which must govern the meaning of the insurance policy) speaks of a legal liability "by way of damages for accidental bodily injury (fatal or non-fatal) to any person". It is not expressed to relate only to a legal liability to a person who himself suffers bodily injury.

A plaintiff who has himself suffered a bodily injury by the fault of another recovers damages measured by the consequences of the hurt to him - expenses to which he has been or will be put, loss of wages, loss of amenities, pain and suffering and so forth. But the damage that is of the essence of his cause of action is not the measured consequences of the hurt but the fact of hurt. It is this that gives rise to the right to damages.

On the other hand the damage that is of the essence of a cause of action for loss of the consortium of a plaintiff's wife or of the services of his servant is that loss itself. That it may be the result of a bodily injury of the wife or servant is only incidental. It is not the fact of bodily injury but its consequence that gives rise to the right to damages.

I do not overlook the distinction. I agree with the appellant's submission that it is fundamental. But saying that does not I think answer the question we have to decide. The words "damages for accidental bodily injury" seem to me, in the context of the Act, apt to cover both kinds of claim. That they can in this context be given a wide application without doing violence to meaning or grammar is, I think, shewn by the judgment of my brother Taylor, which I have had the advantage of reading. The Act is not a model of drafting. But I do not think that its apparent remedial purpose should be defeated by a meticulous construction.