Farmer v Swannell

[1999] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M120 of 1998

B e t w e e n -

BRENDAN WILLIAM FARMER (as Administrator with the Will Annexed of the Estate of JOHN ERNEST FARMER, Deceased)

Applicant

and

GLENYS DIANNE SWANNELL and TRANSPORT ACCIDENT COMMISSION

Respondents

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 1999, AT 10.33 AM

Copyright in the High Court of Australia

MR J.E. BARNARD, QC:   May it please the Court, I appear with my learned friend, MR D.G. BROOKES, for the applicant.  (instructed by Moores Solicitors)

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for both of the respondents.  (instructed by TAC Law Pty Ltd)

McHUGH J:   Yes, Mr Barnard.

MR BARNARD:   If the Court pleases, our submission is that to construe section 93 of the Transport Accident Act as extinguishing or making contingent the cause of action of a seriously injured person produces three serious consequences and it is those consequences which we suggest make this a matter of public importance.  The first of them, of course, arises about the facts in this case is that the injured person, dying before he has an assessment or finding of serious action, has no cause of action to survive for the benefit of his estate.

The second is the circumstance pointed out by Mr Justice Callaway that the tortfeasor – and of course this is something that must frequently happen – dies before the injured person gets the necessary certificate or a finding of serious injury.  Again, there is nothing to survive against the estate of the tortfeasor.  The third, and we say this is a serious inconsistency which exists, is the effect on the provisions which give benefits to the dependants of a person who is killed in a transport accident and this would apply in most cases and circumstances.  The death usually occurs in the accident or follows shortly afterwards, and we point out that under the Lord Campbell Act provisions, which are Part III of the Wrongs Act in Victoria, section 16 is the relevant provision that provides that:

Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person –

may – well, we say the situation there, of course, is that if a person is killed, to treat the section 93 as extinguishing or contingently extinguishing the cause of action of that person, the person who dies as a result of the accident would not have a cause of action because he would never have the chance to get the necessary assessment or ‑ ‑ ‑

McHUGH J:   I take it you have really got to say, have you not, that the common law action remains and you have to say that Justice Ashley in Wilson v Nattrass was wrong and so was Justice Kirby in New South Wales in Thompson v Hill.  I know you seek to distinguish them, but I must say I think you have to meet them head on.

MR BARNARD:   With respect, I agree.  We say this is the same position as Stevens v Head but we do not agree that Ashley and Hedigan were wrong.  We say if one looks at their language carefully, one sees that they never went as far as saying the actual cause of action was extinguished.  I say in respect of that, if I could refer, which Mr Justice Ashley did and the Court of Appeal did not, to section 93(8), which provides that:

A person may recover damages under Part III of the Wrongs Act 1958 in respect of the death of a person as a result of a transport accident.

Well, of course, that entitles them to bring the proceedings to recover damages but, of course, when they go to satisfy section 16 of the Wrongs Act there is no cause of action which existed in the deceased if death had not ensued.  If one looks at Mr Justice Ashley in Wilson v Nattrass, and I say particularly at pages 54 to 55, at the bottom of the page in the last paragraph on that page he examines section 93, and in the last four lines he says:

Once this structure of s 93 is understood, the proper construction of sub-ss(1), (2) and (4) appears to me to be that, subject to a condition or contingency being established, the common law right of action previously enjoyed by persons injured in transport accidents in this State is extinguished –

He is saying the common law right of action, he never used the phrase the “cause of action”.  And he goes on and says:

except to the extent that such a person might fall within sub-s (18)(b) or (c).  This situation may be contrasted, I think, with that applying in the case of a death as a result of a transport accident – where the combined effect of sub-ss (1) and (8) preserves without restriction the right of action previously enjoyed.

We see him there as seeing subsection (8) merely as recognising that the cause of action subsists and it is merely entitling the dependants to bring proceedings.  He is contrasting that with ‑ in the case of persons with serious injury they have to go through the steps required by subsection (2).  Our submission, of course, is there is no need to go as far, for the purposes of Wilson v Nattrass, as saying that the cause of action is extinguished.  It is sufficient that the liability could not be enforced in the forum, the lex fori.

We say that the purposes of section 93 is clearly that it is there, its design is to have the question of serious injury determined before proceedings are issued, so that courts will not be cluttered up and so that legal costs will not be incurred.  This matter, and the vast majority of cases, would be determined by the doctors finding the appropriate degree of impairment and a certificate of serious injury being issued and no legal proceedings would there be involved.  It is in this way, we say, the unfortunate results flowing from the decision of the Court of Appeal could be avoided.

The other matter that is raised here, the Court of Appeal held that the requirement contained in subsection (6) that:

A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury -

requires a demonstration of the existence of serious injury at the date of the determination of the application.  Two cases are relied on, and we say those two cases just do not support that proposition.  We say, firstly, the case of Petkovski v Galletti was where the plaintiff was before the court and most of the doctors expressed a view – rather, none of the doctors expressed a view as to the probable course of the plaintiff’s condition.  He had had an aggravation of a pre-existing back injury.  One of the issues, of course, was whether serious consequences would flow from that later on.  The court was there really only concerned with, in our submission, whether it needed a probability of serious consequences to be known as at the time of the application.

GUMMOW J:   Mr Barnard, is this statute represented in the law of any other State?  It is unique to Victoria, is it not, these particular sections, anyway?

MR BARNARD:   It is not exactly represented.  You get the provisions like in Stevens v Head.

GUMMOW J:   Yes, quite.  The particular problems of section 93.

MR BARNARD:   But it must also have significance in the intra‑national conflict of laws situation in any event, as to how the statute is to be interpreted.  But of course that does not matter for the purposes of this particular case.  I would say the other matter relied on of Belcher v Wolfenden again is, in our submission, a case where it certainly was not a

matter on the facts of demonstration of the existence of serious injury as at the date of the determination.  The serious injury was not demonstrated.

The other matter, of course, which we should address is whether the application can be made by the personal representative and we say that section 3(5)(c) of the Act is relevant and that the context and subject matter, if we succeed in the other matters, are appropriate to read the “personal representative of the person” in place of the “person” in 93(4)(d).

I think those are the matters which we wish to address.

McHUGH J:   Thank you, Mr Barnard.

We need not hear from you, Mr Uren, thank you.  This application for special leave is refused.  In our opinion the reasons of the Court of Appeal are not attended with sufficient doubt to justify the grant of special leave to appeal.

MR UREN:   Would the Court make an order for costs?

McHUGH J:   Yes.  What do you say, Mr Barnard?  You cannot oppose that.

MR BARNARD:   No, your Honour.

McHUGH J:   The application is dismissed with costs.

AT 10.45 AM THE MATTER WAS CONCLUDED