(2012) 248 CLR 378
Digby v General Accident Fire and Life Assurance Corporation Ltd [1942] 2 All ER 319
IW v The City of Perth [1997] HCA 30
(1997) 191 CLR 1
Kavalee v Burbidge (1998) 43 NSWLR 422
Khoury v Government Insurance Office (NSW) [1984] HCA 55
(1984) 165 CLR 622
Melenewycz v Whitfield [2015] NSWSC 1482
Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7
(1975) 132 CLR 336
Spencer v The Commonwealth [2010] HCA 28
Source
Original judgment source is linked above.
Catchwords
(2012) 248 CLR 378
Digby v General Accident Fire and Life Assurance Corporation Ltd [1942] 2 All ER 319
IW v The City of Perth [1997] HCA 30(1997) 191 CLR 1
Kavalee v Burbidge (1998) 43 NSWLR 422
Khoury v Government Insurance Office (NSW) [1984] HCA 55(1984) 165 CLR 622
Melenewycz v Whitfield [2015] NSWSC 1482
Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7(1975) 132 CLR 336
Spencer v The Commonwealth [2010] HCA 28
Judgment (4 paragraphs)
[1]
Judgment
In 23 February 2012, Mr Syed was riding a motorcycle along Lady Game Drive at Lindfield, behind the car, Mr Crumpton was driving, when it collided with a wallaby, which fell to the road, where it was struck by Mr Syed's bike, causing him to be ejected and injured. Mr Syed brings a claim in negligence against Mr Crumpton and, in the alternative, a claim under the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW) against Mr Crumpton and NRMA, the third party insurer of his bike.
By a second amended notice of motion filed in April 2016, NRMA seeks to have the relief sought against it struck out in accordance with Rule 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) and in the alternative, the proceedings against it dismissed under Rule 13.4. The motion is supported by an affidavit sworn by Mr Jones, NRMA's solicitor. It claims that Mr Syed has no reasonable cause of action against it.
Mr Crumpton appeared at the hearing of the motion, but advanced no submissions. There is no question that if fault on his part is established the blameless accident provisions of the Act will have no operation and the case against NRMA will fail.
There is also no question as to the Court's power to make the order sought by NRMA, but the discretion can only be exercised in the limited circumstances discussed in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [59], considered in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, where it was observed at [3]:
"[3] The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:
(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).
(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).
(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."
I am satisfied for the reasons which follow, that NRMA has not established a basis on which the orders it sought may be made, depending as its case does on the proper construction of the Act, which lay in issue between it and Mr Syed.
Mr Syed's pleaded case against NRMA is, relevantly, that:
"20 By reason of the accident being a blameless accident, the plaintiff claims that fault is deemed on the part of each of the drivers of the motor vehicles involved in the accident, pursuant to s7B of the Act
21 Accordingly, fault is deemed on the part of the first defendant and the plaintiff's blameless accident claim can be brought against the first defendant.
22 Further and in the alternative, fault is deemed, for the purposes of s7B, on the part of the owner or driver of the plaintiff's vehicle, being the plaintiff.
23 On the basis that the plaintiff cannot be served with process as a defendant in the claim made by the plaintiff, the plaintiff's claim is brought against the second defendant, pursuant to s113 of the Act."
The case advanced by NRMA, in its written outline of submissions, was that Mr Syed's s 10 policy did not extend first party insurance cover to him, nor did it indemnify him for his own loss, if the accident was a blameless accident under this statutory scheme. No cause of action arising either at common law or under the Act for his injuries against Mr Syed himself, his claim against it had to be dismissed. It was also submitted that authorities which supported the construction of the Act to different effect, were wrongly decided.
In oral submissions it was explained that NRMA's case was that properly construed, the s 10 third party policy it had issued to Mr Syed does not extend the insurance provided by the policy to him, for the injuries he suffered when he was struck by the wallaby and that it does not indemnify him against his own loss. Section 7A provides for blameless accidents not caused by Mr Syed and s 7B has the effect, given the motor accident insurance which he has with it, that in the event of the blameless accident he is deemed to have caused the accident, and is thereby deemed to be at fault if he were either the driver or the owner of the vehicle involved. There is no scope for the deeming provision to operate, however, in circumstances where he is both the driver and the owner of the insured vehicle
It was accepted that if in such a case the injured person was a passenger, Mr Syed would have liability under these provisions. It was because he was not only the driver or owner, but also the insured person that the policy did not apply.
[2]
The statutory scheme
There is no issue that Mr Syed has a compulsory third party policy with NRMA, to which s 10 of the Act applies. Section 10 relevantly provides:
"10 Third-party policies
(cf s 9 and Sch 1 MAA)
(1) A third-party policy under this Act is a policy that is in the following terms:
Third-party Policy
The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle:
(a) if the motor vehicle is not one to which paragraph (b) applies - in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or
(b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport Act 2013 - in the use or operation of the vehicle on any road in any part of the Commonwealth.
In this policy, words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999."
A "third party policy" is not otherwise defined in Act. It follows that while such a policy is called a "third party policy", the s 10 requires that the policy make the provisions there specified, with the words and expressions used in the policy having the same meaning as in the Act. That approach involves a significant departure from general insurance law. "Fault" is thus defined in s 3 to mean "negligence or any other tort". Section 4 deals with the meaning of "owner" of the vehicle. There is no issue that Mr Syed was the owner of the bike, as well as its driver.
NRMA's case is, however, that its s 10 policy does not insure Mr Syed for his own injuries, because he was both the owner and driver of the insured vehicle. It was accepted that if he were either only the owner, or the driver of the vehicle, the policy would apply to him to his injuries in a blameless accident involving the insured vehicle. Given, however, that he was both, the policy did not apply.
The basis of this distinction is not immediately apparent from the words used in s 10.
There is no issue that under the policy NRMA insures Mr Syed as both owner and driver of the vehicle. Undoubtedly he is "a person". That term not being defined, it must take its ordinary meaning. The liability insured by the policy is "in respect of the death of or injury to a person caused by the fault of the owner or driver" of the insured vehicle. Mr Syed has suffered injury in an accident in which that vehicle was involved. It is its cause which is in issue.
That is why the basis for the confined reading of the section for which NRMA contended, as including an injured person who is either a driver, or an owner of the vehicle, but not one who is both, is difficult to see.
Support for such a construction was sought to be drawn from Digby v General Accident Fire and Life Assurance Corporation Ltd [1942] 2 All ER 319; [1943] A.C. 121. There a claim under an insurance policy entitled "General European Travel Comprehensive Automobile Policy", described in marginal descriptions in the policy to be a "[t]hird party indemnity. Public liability and property damage" policy, promising "unlimited indemnity" in respect of a claim by the public (including passengers) for personal injury and damages to property against the policyholder or his personal representative and any person driving on the policyholder's order", arose to be considered. That, it is immediately apparent, was quite a different type of insurance to the third party policy established by s 10 of this Act.
It was the proper construction of the operative clause of the policy, clause 2, which arose for consideration in Digby. It provided:
"(1.) All sums which the policyholder shall become legally liable to pay in respect of any claim by any person (including passengers in the automobile) for loss of life or accidental bodily injury or damage to property (including animals) caused by, through, or in connexion with such automobile, and in addition the law costs payable in connexion with such claim when incurred with the consent of the corporation.
(2.) The policyholder will also be indemnified hereunder whilst personally driving a private automobile not belonging to him and not hired to him under a hire purchase agreement *123 provided the policyholder's own automobile is not in use at the same time and provided that there is no other insurance in force in respect of such other automobile whereby the policyholder may be indemnified.
(3.) The insurance under this section shall also extend to indemnify in like manner any person whilst driving any automobile described in the schedule hereto on the order or with the permission of the policyholder, provided there is no other insurance subsisting under which such person may be indemnified, and that such person shall as though he were the policyholder observe fulfil and be subject to the terms, exceptions and conditions of this policy in so far as they can apply; provided also that such person is a competent driver and holds a licence to drive such automobile or has held and is not disqualified for holding or obtaining such a licence, and has not been convicted of driving to the danger of the public or of any criminal charge in connexion with the driving of an automobile or been declined for automobile insurance by any insurance company or underwriter."
Again, it is evident that those provisions are quite different to what is provided in s 10.
It was concluded by majority in Digby that clause 2, properly construed, had the result that the policy did not cover injuries suffered by the owner of the insured vehicle, when injured in an accident which occurred while his chauffeur, an authorised driver, was driving. In the majority Lord Atkin observed at 135 - 136:
"It purports to indemnify the policyholder designated in the schedule, i.e., Miss Merle Oberon, in respect of an automobile described in the schedule as a 37 h.p. Buick against loss or liabilities mentioned in six sections which are described in the margin respectively as: (1.) Loss or damage. (2.) Third-party liability. (3.) Accidents to policyholder. (4.) Medical expenses. (5.) Towage. (6.) Free legal defence. The marginal descriptions no doubt form part of the contractual document, and are not to be ignored, as in a statute, but they must only be given their proper value, and, in my opinion, they are used as general descriptions of the particular provisions contained in the sections, the words of which alone define the terms of the actual contract between the parties. I can see no justification for transferring the words in the margin to the body of the document and treating the contract as though in s. 2 (1.) "any claim by any person" must be read as "any claim by any third party." It may mean the same thing but, if so, the meaning must be ascertained from the actual words used, and not an alteration of them. I myself feel no doubt that the only effect of the marginal words is to point out the well recognized distinction in insurance law between a claim for loss or damage suffered by the assured, and a claim for liability incurred to another person for loss or damage inflicted on him by the assured, "third-party liability" in respect of "third-party risks." The extent of the insurance provided will depend on the words of the written indemnity."
Likewise in construing s10. It is the words used in the section which must be construed. The liability insured is in respect of death or injury "to a person caused by the fault of the owner or driver of the vehicle". Those words cannot be read as if the section provided that the liability insured is in respect of death or injury "to a third party caused by the fault of the owner or driver of the vehicle".
Lord Atkin continued at 136:
"On examining the provisions of s. 2 it will be found that the first sub-section deals with the policyholder. Starting from the body of the policy, "will indemnify the policyholder in respect of the [scheduled] automobile against .... s. 2 (1.) all sums which the policyholder shall become legally liable to pay in respect of any claim by any person (including passengers in the automobile), for loss of life or accidental bodily injury or damage to property .... caused by through, or in connexion with such automobile." "Any person" should surely receive its ordinary meaning of any member of the public. The policyholder himself cannot come within the term, not because he is not a person, but because the clause only relates to a claim by any person which the policyholder is legally liable to pay, and such a liability cannot exist on a supposed claim at the same time by and against himself. It would appear also that for similar reasons a claim by any person would not include a claim by the wife or husband of the policyholder. Put in another way, the words "any person" do not bear a restricted meaning, but the policyholder *137 is excluded from the scope of the indemnity by the very description of the liability insured. Apart from this it includes any member of the family, child, parent, relative, fiancé, liabilities towards whom have often been established, and would appear to include a chauffeur when not driving were it not for the express exclusion of claims under the Workmen's Compensation Act in proviso (a). I feel bound, therefore, to reject the argument that the words "third party" alone necessarily exclude the policyholder from the scope of the indemnity given."
These observations, it was contended by NRMA, supported the construction of s 10 of the Act as not applying to an injured person who is both the owner and the driver of the insured vehicle. But, by its own submissions, NRMA accepts that the provisions made by the Act depart from those made by the policy which fell to be construed in Digby, and the insurance law Lord Atkin there discussed. Unlike that policy, the description of the liability insured under s 10 is not limited to members of the public. Nor does it exclude a claim for injuries suffered by the insured him or herself, if they were caused by the owner or driver of the vehicle.
In the result, I can see no basis for the conclusion that s 10 applies to an injured person who is either the owner or driver of the vehicle, but not both.
This conclusion is supported by a consideration of the statutory scheme as whole, which must be considered when s 10 is construed (see Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23] - [25] and [68] - [88]).
Section 3B(1)(a) provides that application of Chapters 3 - 6, including the blameless accident provisions in Part 1.2 of Chapter 1, in respect of death or injury that results from the use or operation of a motor vehicle, is limited to death or injury that is caused by a motor accident "for which the vehicle has motor accident insurance cover". A "motor accident" is defined in s 3 to mean:
"an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle's running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."
There is no question that the accident involving the wallaby and Mr Syed's bike was a motor accident as defined.
Motor accident insurance cover is dealt with in s 3B(2), which provides:
"(2) For the purposes of this Act, a motor vehicle has motor accident insurance cover for a motor accident if and only if:
(a) at the time of the motor accident the motor vehicle was subject to coverage under a third-party policy or was subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, or
(b) at the time of the motor accident, the motor vehicle was owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or
(c) there is a right of action against the Nominal Defendant in respect of the motor accident or there would be a right of action against the Nominal Defendant in respect of the motor accident if the motor accident had been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle."
There is no issue that Mr Syed's bike had such motor accident insurance cover with NRMA.
Section 3A provides for general restrictions on the application of the Act, providing:
"(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle's running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."
Chapter 4 deals with Motor Accident claims. "Claim" is defined in s 3 to mean "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".
The language of s 3A is also similar to that of s 10. Both are concerned with death or injury of a person caused by the fault of the owner or driver of a vehicle. Why the injured person referred to in s 3A(1) must be a different person to the owner and/or driver, is also not readily apparent.
By the deeming provisions of the blameless motor accident provisions in Chapter 1, the operation of the Act is extended beyond that specified in s 3A(1). It is by operation of these provisions that an owner and driver such as Mr Syed may come to be deemed to be a person at fault, for the purpose of s 10. Unlike the contract in issue in Digby, the Act does not exclude liability for injuries which he suffers, as general insurance law does, in such circumstances.
"Blameless motor accident" is defined in s 7A to mean "a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person."
Section 7B(1) provides:
"7B Liability for damages in case of blameless motor accident
(1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
Note. Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident."
Whether the accident involving Mr Syed's bike was a blameless accident, need not now be determined. Section 7C Presumption that motor accident is blameless, provides:
"In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary."
In the result, as NRMA accepted, these deeming provisions apply to Mr Syed, who, as both owner and driver of the bike, is deemed to have been at fault if the accident was a blameless one, as deferred. Those provisions also potentially apply, it is common ground, to Mr Crumpton as the driver of the other vehicle involved in the accident.
Section 7E(1) however provides that if the accident was caused by an act or omission of the driver, he or she has no entitlement to damages for death or injury. Further, s 7E(2) provides that:
"(2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if:
(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b) the act or omission was involuntary, or
(c) the act or omission was not the sole or primary cause of the death or injury, or
(d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event."
It follows that in any of these circumstances Mr Syed, as the driver, has no right to damages for the injuries which he suffered, unless Mr Crompton has relevant liability as the driver of the other vehicle involved, if the accident is a blameless accident. It also follows from s 7E(1), however, that the statutory scheme also contemplates that in cases where the accident was not caused by an act or omission of a driver such as Mr Syed, he or she may have an entitlement to damages for death or injury caused by a blameless accident.
An obvious example of such a situation would be where a driver was stopped in traffic next to a truck when a load fell onto his vehicle, or when a branch fell onto the vehicle from a tree, causing him injury. In such cases the provisions of s 7E would not apply, the accident not having been caused by an act or omission of the driver.
Were it otherwise, s 7E would simply provide that a driver involved in a blameless accident has no entitlement to damages for death or injury which he or she suffers. It does not make such provision. Nor does it provide that a person who is both an owner and a driver has no such entitlement. Had either been intended, the section could easily have said so. It does not.
NRMA's case that the blameless accident provisions have to be read down, s 3A and s 10 having no application to a person who is both an owner and a driver, thus makes no sense in this statutory scheme, given the express provisions made as to drivers in s 7E.
Also to be considered is that s 7F also makes provision for contributory negligence "by the injured person". Such a person may be the owner or driver of the vehicle, or both, or of another vehicle, or a passenger, a pedestrian, or even a bystander. Further, s 7G provides:
"7G Recovery of contribution from person actually at fault
A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury."
Section 7G is a provision made for the benefit of an owner or driver such as Mr Syed, who is deemed to be at fault for the blameless accident in which he was injured. Like other provisions of this legislative scheme, it is also of potential benefit to the insurer who has provided motor accident insurance cover for the vehicle involved in a blameless accident. Such insurers are given rights such as those provided by s 78, which entitles it to conduct and take control of negotiations in respect of a claim and by s 79, to be joined as a party in the proceedings.
Construction of the blameless accident provisions arose for consideration in Axiak v Ingram [2012] NSWCA 311, where a school child who ran into the path of a vehicle from behind a school bus was injured, and again in Melenewycz v Whitfield [2015] NSWSC 1482, another case where a motorbike struck a kangaroo, there in a single vehicle accident.
In Axiak it was observed at [17] that when the Act was amended in 2006, it and the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), "established a scheme to provide lifetime care and support for persons who suffered catastrophic injuries in motor vehicle accidents covered by the Act. It proposed that all persons so injured would receive medical care and support services throughout their life regardless of who was at fault in the motor vehicle accident." Where an accident was not caused by the fault of the driver of a vehicle, the only way that certain damages for death or injury can be recovered is under Division 1 of Part 1.2 No-fault Claims - children and blameless accidents of the Act.
Section 33 of the Interpretation Act 1987 (NSW) requires that a construction that would promote the purpose or object underlying the Act is to be preferred over one that does not. The Act does not expressly state its purpose, which must therefore be gleaned from its provisions. The approach which has to be adopted to the construction of the Act was said in Axiak at [57] to be that discussed in Wilson v State Rail Authority of NSW [2010] NSWCA 198, at [12]:
"I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed". . ."However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect … ."
It was the meaning of the word "fault" in the definition of "blameless motor accident" which arose for consideration in Axiak. The questions which arose for determination in Melenewycz were whether a driver, or a driver involved in a single vehicle accident, could ever have the benefit of the blameless accident provisions of the Act.
In Melenewycz, Hamill J considered Axiak and various other authorities in which the operation of the Act had been considered, to which it is not necessary to turn in this case, as well as what had been said in the Second Reading Speech. He concluded at [44] - [45] that s 7E had been designed to place significant limitations on the circumstances in which a driver may recover damages in the case of a blameless accident, but that the section did not have the effect that a driver may never recover damages for death or injury caused by such an accident and that the blameless accident provisions could apply to drivers involved in a single car accident.
While it was submitted for NRMA that Melenewycz was incorrectly decided, I can see no error in his Honour's conclusions as to the proper construction of this statutory scheme. The blameless accident provisions of the Act gives people killed or injured in a blameless accident, including, in certain cases, people who are both owners and drivers such as Mr Syed, the right to pursue claims in respect of death or injury, when he or she has third party insurance of the kind provided for by s 10.
True it is that a person cannot sue him, or herself, for negligence at common law. The claim which Mr Syed pursues does not, however, arise at common law, but under a statutory scheme with obvious beneficial purpose for persons injured in blameless accidents as the result of the statutory provisions I have discussed.
In construing the Act the practical consequences of giving it a particular meaning must, of course, be considered (see Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336). So, too, must its beneficial purposes, so that full relief is given to the fair meaning that its language will allow, but restrained by what is fairly open on the words actually used (see Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 at 361; Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622 at 638 and IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11).
In Kavalee v Burbidge (1998) 43 NSWLR 422, it was considered at 441 that a liberal approach to the beneficial legislation there being considered (the Family Provision Act 1982 (NSW)) was called for, given the legislative goal of providing adequate provision in favour of eligible persons, but it was also observed that:
"... the ability to choose a construction which promotes the purpose of extending the powers of the Court to the full range of benefits and advantages controlled by testators exists only "in so far as any question of construction presents a choice"."
Here, the basis for choosing a construction of s 10 of the Act which provides insurance cover for injured persons when they are either the driver or the owner of an insured vehicle involved in a blameless accident, but not when they are both, escapes me, as does the conclusion that one is consistent with the purposes of this legislative scheme, but the other is not.
It is s 72 which regulates the bringing of claims under this statutory scheme, including in the case of blameless accidents. It requires that claims be made against persons on whom liability is imposed by the Act, when insured, by notice given to the insurer. The section provides:
"72 Time for and notice of making of claims
(cf s 43 MAA)
(1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death.
(2) A claim is made by giving notice of the claim as follows:
(a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer,
(b) in any other case, to the person against whom the claim is made.
(3) The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:
(a) that person is dead, or
(b) that person cannot be given notice."
Section 113 Proceedings against insurer if insured dead or unable to be served, deals with the pursuit of proceedings and the service of process, where a person cannot be served when proceedings are brought, not with the rights and obligations created by the legislative scheme, which might be pursued in such proceedings. It provides:
"(1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant and a person claiming contribution or indemnity between joint tortfeasors may:
(a) take proceedings in respect of the claim against the person's insurer, and
(b) recover in those proceedings an amount for which the claimant or the person claiming contribution or indemnity could have obtained a judgment against the insured person.
(2) The fact that a person cannot be served with process is not to be regarded as having been proved unless it is established that all reasonable inquiries have been made in an effort to effect service."
This provision does not seem to be of relevance, in this case, even though it is relied on in Mr Syed's statement of claim. It is s 19 of the Civil Procedure Act 2005 (NSW) which requires that civil proceedings such as this be commenced and conducted in accordance with the provisions of that Act and the Uniform Civil Procedure Rules 2005. Section 113 of the Act is a machinery provision which deals with circumstances where a person against whom such proceedings are sought to be brought are dead or cannot be served with process. This is not such a case.
Mr Syed has s 10 insurance with NRMA. He claims, in the alternative, that the blameless accident provisions of Part 1.2 of Chapter 1 of the Act apply to this accident. If it was a blameless accident, which it was common ground does not arise for determination on this motion, he and Mr Crumpton the driver of the other vehicle, are thereby deemed to have been at fault and to have caused the injuries which he suffered, when his bike struck the wallaby. In accordance with s 72, any claim for damages in respect of that accident, whether suffered by him or someone else, had to be brought by notice given to NRMA, his s 10 insurer and to the insurer of the other vehicle.
NRMA accepted that if it had been another person who had been injured in this accident, such notice would have had to be served upon it and if the accident were found to have been a blameless accident, Mr Syed's policy would apply.
It is common ground that Mr Syed brought a claim under s 72, which NRMA refused to accept. There is a dispute between them as to whether or not the policy covers the injuries he has suffered. While that has not been adequately pleaded in Mr Syed's statement of claim, NRMA is a proper defendant in these proceedings in the circumstances, given the issues which lie between it and Mr Syed. NRMA accepted that if its motion failed, he must be given leave to amend his pleadings to squarely raise this issue.
The construction of the Act for which NRMA contended, cannot be accepted, as I have explained. Accordingly, it has not met the onus which falls upon it and the proceedings brought against it cannot be dismissed and Mr Syed must be given leave to amend his pleadings, as it accepted.
[3]
Orders
For the reasons given, the motion is dismissed and Mr Syed is given leave to amend his statement of claim.
The usual costs order under the Rules is that costs follow the event. Given the conclusions I have reached the parties should confer and file proposed orders within 14 days. If there is any disagreement as to costs I will hear them.
[4]
Amendments
28 April 2016 - Amendment made to coversheet
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Decision last updated: 28 April 2016