Dorothy Jean Johnstone v Brisbane City Council

[2000] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Dorothy Jean Johnstone v Brisbane City Council [2000] QSC 078

PARTIES:

DOROTHY JEAN JOHNSTONE
(plaintiff/respondent)
v
BRISBANE CITY COUNCIL
(defendant/applicant)

FILE NO:

S6337 of 1997

DIVISION:

Trial Division (Brisbane Registry)

DELIVERED ON:

12 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2000

JUDGE:

Mullins J

ORDER:

1.  Application adjourned to a date to be fixed.
2.  Liberty to either party to apply on one clear day's notice in writing to the other.

CATCHWORDS:

PRACTICE – STATEMENT OF CLAIM – STRIKING OUT – No reasonable cause of action – Failure to comply with s39(5) of Motor Accident Insurance Act 1994.

Motor Accident Insurance Act 1994

ss5(1), 37(1), 39(5)

Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Aust Ltd [1999] QCA 386
Suncorp General Insurance Ltd v Loweke (1998) 28 MVR 111
Young v Keong [1999] 2QdR 335
The Commonwealth v Verwayen (1990) 170 CLR 394 Freshmark Limited v Mercantile Mutual Insurance (Australia) Limited [1994] 2QdR 390

Couling v Nelson [1999] 2 QdR 231

COUNSEL:

Mr K F Holyoak for the applicant
Mr D L K Atkinson for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Shine Roche McGowan for the respondent

1. MULLINS J: This is an application by the defendant to strike out the plaintiff's pleading pursuant to r171 UCPR as disclosing no reasonable cause of action. Alternatively, the applicant seeks judgment pursuant to r293 UCPR on the grounds that no reasonable cause of action is disclosed. As a further alternative, the applicant seeks an order pursuant to r483 UCPR that the circumstances giving rise to the claim that occurred on 6 October 1995 be separately determined by trial.

1. The respondent was employed by the applicant as a bus driver. At 8 am on 6 October 1995 the respondent was driving the applicant's bus No 184 along Wynnum Road, Norman Park when she applied the brakes suddenly to avoid hitting a car which had cut in front of the bus.  The respondent immediately suffered from back pain.

1. The respondent issued a writ claiming damages on 17 July 1997 which was served on the applicant on 18 February 1998.  A copy of the writ had been served on WorkCover by 27 February 1998.

1. The respondent delivered a statement of claim on 19 March 1998.  A defence in the nature of a holding defence was served by the applicant on 11 May 1998.  No defence based on the Motor Accident Insurance Act 1994 was raised at this stage.

1. The limitation period in respect of an injury sustained on 6 October 1995 expired on 6 October 1998.  Substantial amendments were made to the defence on 6 September 1999 which raised the application of the Motor Accident Insurance Act 1994.

1. Amendments were made to the statement of claim on 22 February 2000.  The operative paragraphs of the statement of claim relating to the cause of the respondent's injuries now read:

"6.Whilst in the course of her employment of driving the bus along the routes on the timetables as set by the defendant, the plaintiff was exposed to vehicle input vibrations which were of a sufficient magnitude to cause damage to the plaintiff's body.

7.On or about 6 October 1995, the plaintiff sustained an injury to her back and/or an exacerbation of a pre-existing congenital condition in her back.            

8.The plaintiff's injuries were caused by negligence and/or breach of statutory duty on the part of the defendant, its servants or agents.

PARTICULARS OF NEGLIGENCE

(a) Failing to install proper ergonomically designed seats within the buses the plaintiff was required to drive;

(b) Failing to implement a system where the seats installed in the plaintiff's (sic) buses were checked for its ability to absorb vehicle induced vibration and/or failing to implement a system which adequately made those checks.

(c) Failing to implement an early system for the reporting of injuries so as to minimise the extent of the plaintiff's injuries;

(d) Requiring the plaintiff to drive buses with excessively sharp brakes with the effect that the brakes would often jam up suddenly causing unnecessary jarring to the plaintiff's person;       

(e) Failing to check the brakes when it knew or ought to have known that the brakes were jamming up frequently;

(f) Failing to warn the plaintiff that the sharp brakes were installed in the buses and that the sharp stopping motion caused by the said brakes would cause jarring to the plaintiff sufficient to cause injury or aggravation of pre-existing injury to her spine;

(g) Failing to act on complaints from drivers of sharp braking and/or back pain when driving the defendant's buses;

(h) By reason of a combination of sub-paragraphs (a) – (g), the defendant failed to provide a safe system of work for the plaintiff."

1. The particulars of negligence in par 8 do not all relate easily to the allegations in pars 6 and 7, although the structure of the amended statement of claim suggests that par 8 relates to both pars 6 and 7.  Particulars (a), (b) and (c) appear to relate to the "vehicle input vibrations" referred to in par 6 which presumably culminated in the injury alleged in par 7.  Particulars (d), (e), (f) and (g) appear to relate to the incident on 6 October 1995 referred to in par 7 which presumably was contributed to by the matters alleged in par 6.  Paragraph (h) of the particulars relies on a combination of the previous particulars.    

1. The defence on behalf of the applicant is presently being conducted in accordance with instructions given by MMI General Insurance Limited, the compulsory third party insurer of Brisbane bus 184 as at 6 October 1995. 

1. One of the amendments made in the amended defence filed on 7 September 1999 was to claim that the respondent's claim is a nullity because of failure to comply with the Motor Accident Insurance Act 1994. That defence is pleaded in the following terms:

"5.Further, and in the alternative, the Plaintiff's claim is a nullity and is not justicability (sic) to be brought in this jurisdiction for the following:-

(a)The Plaintiff's claim is one involving a motor vehicle as defined by the Motor Accident Insurance Act 1994.

(b)The Plaintiff has not given notice to MMI General Insurance Company Limited, the CTP insurer of the bus as at 6 October 1995 in accordance with Division 3 Part 4 of the Motor Accident Insurance Act 1994, that is the Section 37 Notice.

(c)There has been no compliance with Section 39(5)(a) and/or leave given to commence proceedings despite non-compliance as required by Section 39(5)(c) of the Motor Accident Insurance Act 1994.

(d)MMI General Insurance Company Limited has not been named as a Defendant to the proceedings as required by Section 52."

1. It is that defence which is the basis of the applicant's application to strike out the respondent's amended statement of claim.

1. It was common ground that the respondent had not given a notice pursuant to s37(1) of the Motor Accident Insurance Act 1994. It was also common ground that if the claim was one to which s5 of the Motor Accident Insurance Act 1994 applied, it was too late for the respondent to seek the leave of the court to bring the proceeding pursuant to s39(5)(c) of the Motor Accident Insurance Act 1994.

1. Mr Atkinson of Counsel who appeared on behalf of the respondent opposed the application on two grounds.  The first ground was that the applicant had waived any right to insist on compliance with the Motor Accident Insurance Act 1994. The second ground was that the respondent's claim, or part of it, did not come within the scope of s5 of the Motor Accident Insurance Act 1994. In relation to the second ground, Mr Atkinson argued that it was not an appropriate case to be decided summarily.

1. The submission of waiver assumes that s5 of the Motor Accident Insurance Act 1994 is applicable, whereas the other ground for opposition is on the basis that s5 does not apply.   

1. The respondent has not sworn an affidavit in connection with her opposition of the application.  Instead the respondent relies on two affidavits sworn by her solicitor Kate Elizabeth Avery on 20 and 23 March 2000.  In the affidavit sworn on 20 March 2000, Ms Avery states:

"3.I am informed by the plaintiff, and I verily believe that, she was required to drive buses in the course of her employment with Brisbane City Council that were fitted with seats that were very thin and covered in very little padding or even material.  I am further informed by the plaintiff, and I verily believe that she noticed back discomfort when she was sitting in the bus when the bus was in motion and when it was stationary.

4.          I am informed by the plaintiff, and I verily believe that she

recalls having to twist around from the normal driving position in order to dispense tickets as passengers boarded the bus and that this twisting motion was uncomfortable.

5.          I am informed by the plaintiff, and I verily believe, that the
             brakes on bus number 184 were very sensitive and that even

a light touch on the brakes would bring the bus to a sudden stop."

1. Mr Atkinson of Counsel argued that the matters in pars 3 and 4 of Ms Avery's affidavit were "pregnant" within par 8(a) of the amended statement of claim. That argument is clearly not tenable.  The current particulars of negligence in sub-pars (a) and (b) of par 8 of the amended statement of claim must relate back to the allegation in par 6 that the respondent was exposed to vehicle input vibrations whilst driving the applicant's buses.  It is therefore not consistent with the existing pleading for the respondent to now allege that she suffered back discomfort, because the seats had little padding unless that is related to the vehicle input vibrations.  The particular of negligence in par 8(a) of the amended statement of claim may be relevant to a cause of action which pleads facts relating to the system of work involving the ticketing duties of the respondent, but there are presently no facts pleaded in the statement of claim to link par 8(a) with such a claim.

1. If the respondent were to pursue a claim based on the factual matters set out in pars 3 and 4 of Ms Avery's affidavit, Mr Atkinson ultimately conceded that the amended statement of claim would need to be further amended.  Notwithstanding the matters raised by pars 3 and 4 of Ms Avery's affidavit sworn on 20 March 2000, there is no application by the respondent for leave to further amend the amended statement of claim or any foreshadowing of actual proposed amendments.  I therefore must consider this application on the basis of the amended statement of claim as it presently stands. 

1. Logically, the first issue is whether the respondent's claim as pleaded in the amended statement of claim is one to which the Motor Accident Insurance Act 1994 applies. Section 5(1) of that Act provides:

"5.(1)  This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury-
  (a)       is a result of-

(i)        the driving of the motor vehicle; or

(ii)a collision, or action taken to avoid a collision, with the motor vehicle; or 

(iii)the motor vehicle running out of control; or

(iv)a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

(b)is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person."

1. Mr Atkinson, in seeking to avoid a determination of whether s5 of the Motor Accident Insurance Act 1994 was applicable on the basis that it was not an appropriate case to be decided summarily, relied on the decision of the Court of Appeal in Suncorp General Insurance Ltd v Loweke (1998) 28 MVR 111.

1. In that case the plaintiff was also a bus driver and sued her employer for damages for personal injuries on the basis that the seats fitted within the driving compartments of the buses were broken and defective requiring one occupying the seats to adopt a posture which accommodated the tilt of the seats. Driving buses while the seats were in that condition caused the plaintiff to sustain injuries to her neck and back.

1. In an application for leave to appeal against the decision of a District Court Judge that the compulsory third party insurer be joined as a defendant to the personal injuries action, it was held that the issue of whether or not the Motor Accident Insurance Act 1994 covered the claim would be best determined at the trial.        

1. The application for leave to appeal was therefore dismissed.  McMurdo P considered that findings of fact made at the trial may be relevant to the sensible determination of whether that case was covered by the Act and noted that evidence at trial sometimes raises issues of fact not precisely pleaded.  Muir J considered that the determination of the application of the Act was premature without full and precise particularisation of the circumstances in which the plaintiff's injuries were alleged to have occurred.  McPherson JA considered that issues of causation were likely to be prominent at the trial and that it was possible that the particulars may be amended before or during trial.  

1. Mr Holyoak of Counsel who appeared for the applicant submitted that the claims pleaded by the respondent fell within s5(1)(a)(i) of the Motor Accident Insurance Act 1994 on the basis that the pleaded case made the vehicle input vibrations an integral part of the process leading to the respondent's injuries.

1. To the extent that Mr Holyoak also sought to rely on s5(1)(a)(iv) in relation to that part of the allegation of negligence relating to the braking incident, it is artificial to attempt to characterise the jarring of the bus when the brakes jammed as amounting to a loss of control of the vehicle.

1. In relation to the scope of s5 of the Motor Accident Insurance Act 1994, Mr Atkinson submitted:-

"13.To the extent that the Plaintiff's injuries have been caused by her ticketing duties or the requirement that she sit in the bus, it is not covered by the Motor Accident Insurance Act.

14.Moreover, if the accident occurred because the brakes grabbed too quickly this is not naturally understood as the result of "driving" a motor vehicle or a loss of control of the vehicle."

To the extent that that submission relates to the ticketing duties or a requirement that the respondent sit in the bus when the bus was not being driven, that is not covered by the present pleading.

1. Some relevant obiter dicta on the interpretation of s5(1)(a) are found in Townsville Trade Waste Pty Ltd v Commercial Union Assurance Co of Aust Ltd [1999] QCA 386. That decision was concerned with the application of s5(1)(a)(ii). At par 22 of his judgment Davies JA stated:

"Of the four sub paragraphs of s5(1)(a), three of them, par (i), par (iii) and par (iv) appear to be limited in their operation, not only to an injury which results from the functioning as a motor vehicle but to one which results from the movement as a motor vehicle."

1. Paragraph 6 of the amended statement of claim pleads as material facts leading to the respondent's injuries that the respondent was driving the applicant's bus and, while doing so, was exposed to vehicle input vibrations. That amounts to a claim of injury, as a result of the driving of a motor vehicle and the movement of the motor vehicle. The pleaded case in this matter clearly brings the claim within s5(1)(a)(i) of the Motor Accident Insurance Act 1994.

1. In Suncorp General Insurance Ltd v Loweke (1998) 28 MVR 111, it was arguable whether or not the case as pleaded fell within s5(1) of the Motor Accident Insurance Act 1994. It was therefore appropriate to leave that issue to be determined at the trial. That can be contrasted to the claim as pleaded in this matter.

1. Apart from the question of waiver if the amended statement of claim were to remain in its present form, the respondent's action would be vulnerable to relief appropriate for failure to comply with the Motor Accident Insurance Act 1994 in bringing the proceedings.

1. The matters raised in pars 3 and 4 of Ms Avery's affidavit sworn on 20 March 2000 suggest that the respondent may wish to replead her claims against the applicant in a way which takes them outside s5(1) of the Motor Accident Insurance Act 1994. If the respondent did wish to replead, the question of whether the respondent is able to do so, having regard to the non-compliance with the Motor Accident Insurance Act 1994 in respect of the claims as presently pleaded was not specifically canvassed in the hearing before me.

1. With respect to the respondent's first ground of opposition, Mr Atkinson argued that the applicant had waived any right to insist on compliance with the Motor Accident Insurance Act 1994, by not raising that matter before the expiry of the limitation period.

1. It is therefore necessary to determine whether compliance with the Motor Accident Insurance Act 1994 can be the subject of waiver by the defendant in a personal injuries action to which the Act applies.

1. It is only necessary to consider the effect of s39(5) of the Motor Accident Insurance Act 1994. That provision was considered by the Court of Appeal in Young v Keong [1999] 2QdR 335. Williams J with whom McPherson JA agreed stated at 340:-

"In counsel's submissions the only relevant sanction was to be found in s39(7). That argument is, in my view, misconceived. Both s37(1) and 39(5) are in terms mandatory; that is emphasised by the use of the word "only" in the latter provision. In New South Wales it has been held that similar provisions are mandatory and in the absence of an order to the contrary legal proceedings cannot be commenced where there has been non-compliance; Hill v. Bolt (1992) 28 N.S.W.L.R. 329 and Serhan v. Serhan (1996) 24 M.V.R.4. The language of the Queensland provisions is similar, and in my view the result should be the same.

It will be noted that pursuant to s39(5)(c) the court may give leave to "bring the proceedings", meaning thereby commence the proceedings, "despite noncompliance with requirements of" ss37 and 39. No application for leave has been made in this case. It is therefore not appropriate to consider the grounds on which such leave may be granted, and whether or not leave could be granted on the facts of this case. What is important for present purposes is that s39(5)(b) and (c) clearly recognise that for some period of time a claimant may have been in default, in the sense that the claimant had not complied with the requirements of the legislation. In those situations, and in particular where leave pursuant to s.39(5)(c) has been given, the court may impose one or more of the sanctions provided for in s.39(7) when making its final orders. It is not a case where one has to conclude that there is no scope for operation of subs.(7) if the construction contended for by the appellant is rejected."

1. That appeal was from the decision of a District Court Judge who struck out a personal injuries claim on the basis of failure to comply with s37(1) and s39(5) of the Motor Accident Insurance Act 1994. The majority of the Court of Appeal dismissed the appeal on the basis that the proceedings were brought in circumstances where there was a failure to comply with mandatory requirements before the action could be commenced.

1. The motor vehicle accident the subject of that decision had occurred in northern New South Wales, but the proceedings were commenced in Queensland.  In the course of his judgment, Williams J stated at 341:-

"Finally, it is clear that the Queensland legislation requiring the giving of notice before action is a procedural requirement and therefore governed exclusively by the laws of the forum."

1. Mr Atkinson relies on that statement to submit that even though the relevant requirements of the Motor Accident Insurance Act 1994 are mandatory, they are procedural and therefore can be waived.

1. That statement is referable to the notice under s37(1) and the appellant's argument in that case that the provisions of the relevant New South Wales Act applied to the service on the New South Wales Nominal Defendant rather than s37(1) of the Motor Accident Insurance Act 1994.

1. The question then is whether the requirements of s39(5) that apply before legal proceedings are commenced in respect of a motor vehicle accident claim to which the Motor Accident Insurance Act 1994 applies can be waived.

1. Mr Atkinson relied on obiter dicta in The Commonwealth v Verwayen (1990) 170 CLR 394, 424, 483. In response Mr Holyoak relied on Freshmark Limited v Mercantile Mutual Insurance (Australia) Limited [1994] 2QdR 390. It is apparent from the discussion of the principle of waiver in both cases that the relevant question is whether compliance with s39(5) of the Motor Accident Insurance Act 1994 is an element of the cause of action for damages for personal injury to which s5(1) of that Act applies. If it is an element, then it is not a matter which can be the subject of waiver.

1. It is a matter of statutory interpretation whether compliance with s39(5) of the Motor Accident Insurance Act 1994 is an element of the cause of action of the claimant. I have had regard to the changes to the resolution of personal injuries actions arising out of motor vehicle accident claims introduced by the Act, a convenient summary of which is set out in the judgment of Couling v Nelson [1999] 2 QdR231, 232-234. It is consistent with the structure of division 3 of part 4 of the Motor Accident Insurance Act 1994 that compliance with s39(5) of the Act is not only mandatory but is an element of the cause of action. There is therefore no room for the operation of waiver.

1. Because of the possibility that the respondent may wish to replead her claims against the applicant to take them outside s5(1) of the Motor Accident Insurance Act 1994, and the question of whether or not that is able to be done has not been the subject of submissions, it is appropriate to allow further submissions to be made on this aspect and, if appropriate, for an application to be made to seek leave to further amend the amended statement of claim.

1. With respect to the orders sought in pars 1 and 2 of the application, I propose to adjourn the application to a date to be fixed with liberty to either party to apply on one clear day's notice in writing to the other. 

1. Irrespective of what orders are made ultimately, the applicant has been substantially successful in the contentions advanced in support of its application.  I therefore consider that the respondent should pay the applicant's costs of the application to date to be assessed, if not agreed.