Craig David McAuslan v Gloria Litchfield

[1999] QDC 73

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

[Craig David McAuslan v Gloria Litchfield]

[Before O’Brien DCJ]

Plaint No 289 of 1999

BETWEEN:

CRAIG DAVID McAUSLAN

Plaintiff

AND:

GLORIA LITCHFIELD

Defendant

JUDGMENT

Judgment delivered:              

Catchwords:  

Counsel:    ~

Solicitors:   ~

Hearing Date(s):                   ~

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Plaint No 289 of 1999
BETWEEN:
  CRAIG DAVID McAUSLAN
  Plaintiff
AND:
  GLORIA LITCHFIELD
  Defendant
  REASONS FOR DECISION -O’BRIEN D.C.J.
  Delivered the        day of        1999

This is an application by the plaintiff for orders that paragraphs 4 and 5 of the Defendant’s Entry of Appearance and Defence be struck out and that judgment be entered for the plaintiff with damages to be assessed. 

The plaintiff claim is for damages for personal injuries suffered from 25th May 1997 when his motorcycle came into collision with a motor vehicle driven by the first defendant.  The second defendant was the CTP insurer of that motor vehicle.  Paragraph 4(c) of the Plaint alleges that the first defendant failed to give way at a give way sign and paragraph 5 pleads that the collision was caused or contributed to by the negligence of the first defendant.  By their defence the defendants deny the allegations contained in those paragraphs and go on to allege contributory negligence on the part of the plaintiff.  It is those pleadings, which are contained in paragraphs 4 and 5 of the defence, which the plaintiff now seeks to have struck out.

The basis for the plaintiff’s application is to be found in a letter of the 6th of October 1997 written by the insurer to the solicitors for the plaintiff.  That letter reads, in part:

“In response to the notice of claim, we advise that we admit liability for the injuries sustained by your client as a result of the motor vehicle accident which occurred on 25 May 1997.”

The first matter which arises for my determination then is whether this pre-action admission of liability made pursuant to section 41(1)(b) of the Motor Accident Insurance Act 1994 should preclude the defendant from later pleading a denial of liability and/or pleading contributory negligence on the part of the plaintiff.

Counsel for the plaintiff has placed considerable reliance on the decision of Demack J in Till -v- The Nominal Defendant (Unreported Mackay Plaint No 73 1997 delivered 26/2/99) where His Honour struck out paragraphs of a defence which denied liability and pleaded contributory negligence following an admission by the Nominal Defendant that it “accepts liability 100%”.  His Honour held that an admission that the insurer is liable to pay damages is an admission of law and, except where fraud is alleged, that issue can not later be litigated.

It is to be noted that the “admission” in the present case is not in its terms identical with the admission in Till -v- The Nominal Defendant but in any event counsel for the defendant has referred to the decision of Williams J in Vonhoff -v- FAI General Insurance Company Limited & Anor 1996 24 MVR 537 where His Honour refused to strike out a pleading of contributory negligence notwithstanding a pre-trial admission of liability by the insurer.

The question has also been considered by Judges of this court on a number of occasions.  In Coyne -v- Coyne (1997) 18 Qld Lawyer Reports 44, Forde DCJ held that an admission of liability made pre-action pursuant to the Motor Accident Insurance Act should not necessarily prevent an insurer denying liability in its defence.  Similar views have been expressed by Hinson ADCJ in Skilton -v- Grochau & Anor (Unreported Plaint No 66 of 1998 Judgment delivered 24.9.98) and Wylie DCJ in Mulcair -v- Puckering & Ors (Unreported Gladstone Plaint No 34 of 1998, delivered 19.2.99).

In GIO -v- Phillips (Unreported NSW CA No 40245 of 1992 Judgment delivered 27 August 1992) an insurer had originally accepted liability under NSW legislation similar in kind to the provisions of the Motor Accident Insurance Act.  The insurer subsequently filed a defence denying negligence and the Court of Appeal had to consider interlocutory orders striking out that defence and refusing the insurer leave to file an amended defence pleading inevitable accident.  The Court held that those orders could not be sustained.  Kirby P with whom Clarke and Cripps JJA agreed said:

“First it is not at all clear as to what basis the respondent relied upon to support to the claim for the preemptory striking out of the statement of defence as filed, without a trial on the merits.  Such a procedure is reserved to truly exceptional cases where the pleading discloses no reasonable defence on its face or presents a defence which has a tendency to cause prejudice, embarrassment or delay to proceedings or is otherwise shown to be an abuse of the process of the court.  I do not doubt that in the case of a sham defence an applicant would be entitled to invoke such relief from the court both under the court’s rules and under its inherent powers.  See Remmington -v- Scoles (1897) 2 Ch 1 at 6. But the statement of defence filed by the appellant did not fall in this class. On its face, it was perfectly regular. It denied negligence on the part of its agent. By longstanding authority, such a denial would have been adequate at common law to permit the appellant, at the trial, to raise a defence of inevitable accident ... But the appellant had a perfectly good Statement of Defence on file. It was not one which fell within the very narrow class of pleadings which would warrant preemptory removal. See General Steel Industries Limited -v- Commissioner for Railways (1964) 112 CLR 125, 129. If it was claimed that facts existed which gave an answer to the defence as pleaded, the proper course for the respondent to adopt was that actually adopted in her Reply. It was to plead facts by reason of which a legal answer was provided to the Statement of Defence filed. There would then be tendered to the court of trial issues of fact and law to be determined in the normal way at the trial. It is by trial on the merits that the issue dealt with by Sharp J should have been determined.”

In Ricketts -v- Callan (1992) 15 NBR 220, Master Greenwood considered a motion that the defendant file an amended defence in accordance with a pre-action admission of liability. After addressing issues of estoppel and whether the admissions gave rise to a contractual situation, the Master said at page 224:

“There is a further ground for the plaintiff’s failure.  It would be contrary to public policy if an insurer acting on the early information it has available to it adopts its responsibilities under the Motor Accidents Act and admits liability but subsequently is prevented from denying liability when further information comes to hand.

Such a situation would result in an insurer denying liability until such times as every possible avenue relating to liability was explored.  This is not the intention or the spirit of the Act.  There will be circumstances where the conduct of the insurer is such that an estoppel may well arise.  It does not in this case.  However I am of the view that the plaintiff is entitled to use the evidence about the defendant’s admission of liability as evidence in the hearing of the action if he so chooses.”

I adopt with respect these several observations and in the circumstances of this case where the defence is not a sham but is a standard defence in a personal injuries action, I find no basis for striking out the defence.

So far as the application for judgment pursuant to rule 202 is concerned, I find myself in agreement with the reasoning of Forde DCJ in Coyne -v- Coyne supra and take the view that the pre-action admission contained in the letter of the 6th of October 1997 does not amount to an admission of fact “made in an action on matter” for the purposes of that rule.  The application for interlocutory judgement is refused.

Finally, the summons seeks and order that the defendant provide further and better particulars of the entry of appearance and defence.  Specifically the plaintiff seeks further particularisation of the defendant’s pleading of contributory negligence.  In my view however any further particularisation would involve a descent into matters of evidence and the application should therefore be dismissed.

My orders then are that the summons be dismissed with the plaintiff/applicant to pay the defendant’s cost of and incidental to the application to be taxed.