De Innocentis v Brisbane City Council - [1998] QSC 266

IN THE SUPREME COURT
OF QUEENSLAND

No. 4742 of 1997
Brisbane

Before Williams J
[De Innocentis v Brisbane City Council & Anor]
BETWEEN:
MARIO DE INNOCENTIS
Plaintiff

AND:
BRISBANE CITY COUNCIL

First Defendant

AND:
NORTH BRISBANE HOSPITALS BOARD

Second Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 27 November 1998

CATCHWORDS: PROCEDURE - Application to strike out - failure to join statutory insurer as defendant pursuant to s.52 Motor Accidents Insurance Act 1994 - whether statutory insurer can be joined as defendant outside limitation period provided actual tortfeasor is sued within time - no peculiar circumstances demonstrated - Hannan v Jones (S.C. Rockhampton No. 145 of 1997, unreported decision of Demack J, 13 March 1998) distinguished.

Counsel:P Sacre for the plaintiff
K Holyoak for the first defendant
D Weekes, articled clerk, for the second defendant.

Solicitors:John P Bussa & Co for the plaintiff
McInnes Wilson Jensen for the first defendant
Corrs Chambers Westgarth for the second defendant.

Hearing Date: 23 November 1998.

JUDGMENT - WILLIAMS J

Judgment delivered 27 November 1998

There are two summons before the court. The first is by the plaintiff, Mario De Innocentis, seeking orders that MMI Insurance Limited be joined as a defendant and that the name of the second defendant be amended to “The State of Queensland”. The second is by the first defendant, Brisbane City Council, seeking to have the plaintiff’s claim against it struck out.
The plaintiff delivered a statement of claim in the action as currently constituted on 28 May 1997 and it is convenient to use it for the statement of relevant facts.
On 10 July 1995 the plaintiff was a passenger on a bus operating as part of the first defendant’s transport service throughout the Brisbane Metropolitan region. His case is that as a result of negligent driving by the servant or agent of the first defendant he was thrown about in the bus and sustained personal injuries; as a result of the incident the plaintiff was left in an unconscious state. The pleading goes on to allege that he was then transferred by ambulance to the Royal Brisbane Hospital (represented in the action by the second defendant) where he was examined and discharged. Paragraph 19 of the statement of claim alleges:
“Further, the plaintiff was concerned as to the plaintiff’s welfare and complained to the servants or agents of the second defendant. The servants or agents of the second defendant caused the plaintiff, to be forcibly removed from the premises and physically thrown in the back seat of the plaintiff’s vehicle with no care or concern for the welfare of the plaintiff.”
It is then alleged that subsequently the plaintiff was diagnosed as having a brain stem injury and a spinal injury. The allegation is made that those injuries were caused by one or other, or both, of the incidents pleaded; that is either the incident when he was thrown about in the bus or the incident when he was thrown into his motor vehicle.
Each incident occurred on 10 July 1995 and the writ was issued on 28 May 1997, well within the limitation period. As early as 6 September 1995 the MMI Insurance Group, the statutory insurer of the bus in question, was aware of the incident; Messrs McInnes Wilson & Jensen, their solicitors, wrote to the plaintiff’s solicitors on that date looking “forward to receiving your client’s section 37 Notice as soon as possible”. Thereafter rehabilitation was discussed between those solicitors. Following receipt of the s.34 Notice MMI asked for authority to obtain information from treating doctors. That was forthcoming and on 9 October 1995 MMI wrote to the Royal Brisbane Hospital seeking information.
Nothing of significance occurred between October 1995 and May 1997 when the writ was issued and the statement of claim delivered.
By the action only the Brisbane City Council was made a party with respect to the incident on the bus. The solicitor for the first defendant wrote on 23 July 1997 to the plaintiff’s solicitor drawing attention to s.52(1) of the Motor Accidents Insurance Act 1994 and pointing out that the proceedings did not comply with the Act. The letter concluded by saying: “May we respectfully suggest, that this matter be rectified before we enter an appearance and defence on behalf of our client”. There was no response and so on 24 September 1997 the solicitors for the first defendant again wrote, referring to the letter of 23 July 1997, and asking what were the plaintiff’s intentions. There was again no response so a third letter was written on 3 December 1997; it referred to the two earlier letters and asked for an indication of the plaintiff’s intentions. Again, there was no response.
Section 52(1) of the Motor Accidents Insurance Act 1994 provides: “If an action is brought in a court for damages for personal injury arising out of a motor vehicle accident, the action must be brought against the injured person and the insurer as joint defendants”. Clearly that was not done in this case. The limitation period for bringing an action for damages for personal injury with respect to injuries sustained on 10 July 1995 expired in July 1998. By letter of 28 September 1998 the solicitors for the first defendant wrote to the plaintiff’s solicitors stating, inter alia:
“Please advise if you have taken any steps to join our client, MMI Insurance, as a defendant in the action.
It is our view that unless you have taken steps to join our client to the action, that your client’s claim against MMI is statute barred.
Further, pursuant to section 52(4) of the Motor Accidents Insurance Act 1994, it appears your client cannot enter judgment against the First Defendant.
Accordingly, we invite you to discontinue proceedings against the First Defendant and have your client sign a Discharge and Indemnity.”
The plaintiff’s solicitor replied by letter of 12 October 1998 referring to the unreported decision of Demack J in Hannan v Jones (Rockhampton No.145 of 1997; 13 March 1998). Thereafter the two summons now before the court were issued.
The three year limitation period for bringing an action for damages for personal injury is not affected by provisions of the 1994 Act; if there was any doubt, s.57 removes it.
As a general proposition the requirements of the 1994 Act must be complied with if valid proceedings are to be commenced and prosecuted claiming damages for personal injury arising out of a motor vehicle accident (see, for example, Young v Keong & Ors, (CA No. 2202 of 1997, judgment 22 May 1998).
The statute does not make it clear on what basis the statutory insurer is joined as a party. The Act does not appear to create a statutory cause of action for damages for personal injury against the insurer. Nothing in the Act makes the insurer the original tortfeasor. But it is clear from s.52 that the insurer must be joined; judgment cannot be entered against the actual tortfeasor (s.52(4)).
The real question is, what is the relevance of the requirement that the statutory insurer be a party when considering the application of the limitation statute? If the actual tortfeasor is sued within the limitation period can the insurer be joined as a party after the expiration of that period? Can this problem be overcome by applying O.32 r.1(5) of the Rules of the Supreme Court as was done in Lynch v Keddell [1985] 2 Qd R 103? There are as yet, it would appear, no authoritative decisions answering such questions.
Ultimately I have come to the conclusion that s.52 requires an action to be commenced within the three year limitation period against both the tortfeasor and the statutory insurer as joint defendants. Once the limitation period has expired then the statutory insurer could only be added as a defendant if the matter could be brought within the well established principles applicable where it is sought to add a defendant after the expiration of the limitation period.
Hannan v Jones does not help the plaintiff. There the statutory insurer had formally admitted liability prior to the commencement of the action. Demack J regarded that as “a peculiar circumstance” and went on to say that it would be “contrary to accepted notions of justice, if, through inadvertence, [the injured plaintiff cannot recover damages] when liability has been admitted”. That is not the position here; there has been no admission of liability. Section 51 of the Act expressly provides that a statutory insurer by making rehabilitation services available to a claimant must not be taken, for that reason, to have admitted liability.
What is of more significance here is the fact that the only entity against whom judgment could be entered was not made a party within the limitation period, notwithstanding the fact that, within that period, the defect in the proceedings was expressly drawn to the attention of the solicitor for the plaintiff. Given the failure to respond to the letters of 23 July 1997, 24 September 1997, and 3 December 1997, the only possible inferences open are that either the plaintiff consciously decided that it was not necessary to join the statutory insurer, or the plaintiff’s solicitor was grossly negligent. In either event it is not a case of inadvertence or the plaintiff’s side being lulled into a sense of false security by some conduct on the part of the insurer.
It is the fact that the statutory insurer has had ample notice of the plaintiff’s claim and cannot point to any prejudice. But in the circumstances neither of those matters substantially strengthens the plaintiff’s case. Neither could be properly classified as a peculiar circumstance justifying the adding of a party outside the limitation period.
It is true that in a sense there is a substantial identity between the cause of action relied on in the statement of claim against the first defendant as the tortfeasor and the cause of action pursuant to the statute against the tortfeasor and statutory insurer jointly. If it could truly be said that the failure to join the statutory insurer was a mere oversight that circumstance (together with the matters referred to in the preceding paragraph) may arguably be sufficient to permit of the joinder notwithstanding that the limitation period has expired. But, for the reasons given above, this was not a case of mere oversight.
Section 52 has significantly altered the previous law, and the commencement of proceedings complying with its terms is a mandatory procedural requirement. The position is in some ways analogous to that which operated prior to the 1994 Act with respect to claims against The Nominal Defendant. If the action was not commenced within time (subject to the limited provisions for extension of time) that was the end of the matter; it was not to the point to say that The Nominal Defendant had full notice of an intention to make a claim and prejudice had not been established.
In the circumstances the plaintiff has not made out a case for joining the statutory insurer as a defendant after the expiration of the limitation period. By operation of s.52(4) of the Act the plaintiff cannot obtain judgment against the first defendant. In the circumstances the plaintiff’s action as against the first defendant should be struck out.
So far as the plaintiff’s application to amend the name of the second defendant to “The State of Queensland” is concerned there was no opposition. The situation is analogous to that considered in Harstoff v Allen [1967] Qd R 211 and Greguric v Department of Works, Queensland [1988] 2 Qd R 545. That amendment should be allowed.
My orders will therefore be as follows:
1)On the summons of the first defendant, order that the plaintiff’s claim against the first defendant be struck out and further order that the plaintiff pay the first defendant’s costs of an incidental to the action, including this application, to be taxed.
2)On the plaintiff’s summons, order that the name of the second defendant “North Brisbane Hospitals Board” be deleted and the name “State of Queensland” be substituted. Dispense with the service of the amended writ. No order as to costs.