Hobbs v Motor Accident Commission of South Australia

[2008] NTSC 49

Hobbs v Motor Accident Commission of South Australia [2008] NTSC 49

PARTIES:	MATTHEW BROUGHTON HOBBS
v
MOTOR ACCIDENT COMMISSION OF SOUTH AUSTRALIA
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	154 of 2005 (20530961)
DELIVERED:	3 December 2008
HEARING DATES:	1 December 2008
JUDGMENT OF:	RILEY J
CATCHWORDS:

MOTOR VEHICLE ACCIDENT – non resident of the Northern Territory – whether assessment of damages is governed by Personal Injuries (Liabilities and Damages) Act or Motor Accidents (Compensation) Act

Motor Accidents (Compensation) Act

Personal Injuries (Liabilities and Damages) Act

Jenkins v Territory Insurance Office (2001) 11 NTLR 121

REPRESENTATION:

Counsel:

Plaintiff:	R Meldrum QC and S Gearin
Defendant:	S Walsh QC and I Morris

Solicitors:

Plaintiff:	Withnalls
Defendant:	Hunt and Hunt

Judgment category classification: B

Judgment ID Number:	Ril0816
Number of pages:	10
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Hobbs v Motor Accident Commission of South Australia [2008] NTSC 49

No 154 of 2005 (20530961)

BETWEEN:

HOBBS, Matthew Broughton

Plaintiff

AND:

MOTOR ACCIDENT COMMISSION

OF SOUTH AUSTRALIA

Defendant

CORAM:  RILEY J

REASONS FOR JUDGMENT

(Delivered 3 December 2008)

1. The plaintiff was injured in a motor vehicle accident which occurred in the

   Northern Territory on 18 November 2003. A preliminary legal issue has

arisen as to whether any assessment of damages is to be governed by the
provisions of the Personal Injuries (Liabilities and Damages) Act or by the

provisions of the Motor Accidents (Compensation) Act.

1. It is not in dispute that at the time of the accident the plaintiff was a non-

resident of the Northern Territory for the purposes of the Motor Accidents
(Compensation) Act. The plaintiff contends that damages payable to the

plaintiff are to be assessed in accordance with the provisions of the
Personal Injuries (Liabilities and Damages) Act, whilst the defendant

maintains that damages are to be assessed in accordance with the Motor
Accidents (Compensation) Act.

The legislative history

1. Prior to the commencement of the Motor Accidents (Compensation) Act, a

   person in the position of the plaintiff had a right to bring proceedings at

common law against a person in the position of the defendant seeking
damages arising out of injury suffered in a motor vehicle accident.

Following the commencement of that Act, residents of the Northern

Territory were subject to a no fault compensation scheme in respect of death

or injury in or as a result of motor vehicle accidents. At present, following
amendments made to the Act in 2007, and by operation of s 5 of the Act,
common law rights "for the death of, or injury to, a person arising from a
motor accident that occurs in the Territory" have been abolished. However,
at the time of the motor vehicle accident involving the plaintiff, the section
was in the following terms:

“(1) An action for damages shall not lie in the Territory -

(a)

in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or

(b)

in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory -

(i)	for non economic loss in excess of the amount from time to time prescribed for the purposes of section 17;
(ii)	for future loss except at discounted present values; or
(iii)	for future economic loss of future loss of earning capacity calculated on a weekly basis for any sum in excess of the amount from time to time

prescribed for the purposes of section 13,

in or as the result of an accident that occurred in the Territory."

1. It can be seen that the effect of the provision, as it applied at the relevant

   time, was not to abolish common law rights in relation to a non-resident but,

rather, was to modify the existing common law rights by providing a cap
upon the identified heads of damage.

1. The Personal Injuries (Liabilities and Damages) Act commenced in May

   2003 with the identified purpose of modifying the law relating to the

entitlement to damages for personal injuries. The Act fixed limits on certain
awards of damages for personal injuries and made provision for periodic
payments of damages for personal injuries. The Act was expressed to apply

in relation to all civil claims for damages for personal injuries other than

those civil claims identified and excluded in s 4 of the Act. Amongst those

claims excluded under that section were claims for benefits in respect of a
death or an injury as a result of an accident within the meaning of the Motor

Accidents (Compensation) Act. Further, and of significance for present

purposes, it was provided that the Regulations may exclude a claim or class

of claim from the operation of the Act. Regulation 3, which came into
effect at the same time as the Act, then provided that a "claim or action for
damages under the Motor Accidents (Compensation) Act is excluded from

the operation of the Act other than Part 4, Division 6." Division 6 of Part 4

relates to orders for structured settlements.

1. It was submitted on behalf of the plaintiff that, at the time of his accident,

   the plaintiff had a right to an action for damages at common law for general

   damages, past economic loss and future economic loss, even though those

common law rights were capped by the Motor Accidents (Compensation)
Act. It was further submitted that those common law rights were not claims

or actions "under" the Motor Accidents (Compensation) Act and were
therefore not excluded from the operation of the Personal Injuries

(Liabilities and Damages) Act.

1. The plaintiff contends that the assessment of damages in the present case is

   governed solely by the Personal Injuries (Liabilities and Damages) Act.

   The entitlement to damages on behalf of the non-resident plaintiff, not

   having been excluded from the operation of the Personal Injuries

   (Liabilities and Damages) Act, is governed by that Act which, so it was

submitted, provides "a statutory template" for all damages available to the
plaintiff. In effect the plaintiff says that the restrictions of s 5(1)(b) of the

Motor Accidents (Compensation) Act did not apply in his case and he is

entitled to damages assessed by reference to the Personal Injuries
(Liabilities and Damages) Act.

1. The defendant argues that the Personal Injuries (Liabilities and Damages)

   Act does not apply to claims or actions for damages under the Motor

   Accidents (Compensation) Act and, as the plaintiff’s proceedings are an

action for damages under that Act, the Personal Injuries (Liabilities and
Damages) Act has no application. The damages are to be assessed under and

in accordance with the Motor Accidents (Compensation) Act.

1. The defendant points out that the Personal Injuries (Liabilities and

   Damages) Act is an Act of general application applicable to claims for

   damages for personal injury at large whilst the Motor Accidents

   (Compensation) Act applies specifically to accidents caused by, or arising

out of, the use of a motor vehicle. It is not in dispute that the present matter
involves injuries arising out of an accident as defined in the Motor

Accidents (Compensation) Act.

[10]   The defendant notes that by operation of s 4(3) of the Personal Injuries

(Liabilities and Damages) Act claims for "benefits" in respect of an accident

within the meaning of the Motor Accidents (Compensation) Act are excluded from the operation of the Personal Injuries (Liabilities and Damages) Act as

is a “claim or action for damages” under that Act. It is submitted that

Parliament has comprehensively excluded actions and claims for damages

and benefits under the Act and that should be taken to include
circumstances, such as the present case, where such actions are commenced
on behalf of a non-resident.

An "action for damages"

1. The issue to be addressed is what was meant by the expression an "action for

   damages under the Motor Accidents (Compensation) Act” for the purposes of

   the exclusion provisions of the Personal Injuries (Liabilities and Damages)

   Act.

[12]   The expression cannot relate to actions for damages on behalf of residents

of the Northern Territory because the right to such an action had been
removed by the Motor Accidents (Compensation) Act and replaced with a no
fault compensation scheme. However, the removal of the right did not

extend to actions for damages on behalf of a non-resident of the Northern
Territory. The right of a non-resident to recover common law damages was

preserved, but in a modified form: Jenkins v Territory Insurance Office[1].

That was the situation at the time of the introduction of the Personal

Injuries (Liabilities and Damages) Act in May 2003 and continued to be the

case until the 2007 amendments to the Act. It would seem that the only "action for damages" available under the Act was that which related to a non-resident.

One legislative regime for motor vehicle accidents

[13]   The Motor Accidents (Compensation) Act is legislation specifically dealing

with compensation (of whatever kind) payable in respect of death or injury
as a result of a motor vehicle accident as defined in the Act. It provides for
compensation payable to residents under the no fault scheme. At the
relevant time it also applied to regulate actions for damages by a person who
was not a resident of the Northern Territory. It did so by providing a cap
upon certain heads of damage. It would seem unlikely that the Legislature,
in those circumstances, intended that an action for damages by a person who

was not a resident would be regulated by the Motor Accidents
(Compensation) Act and also governed by another Act entirely. The

Legislature has sought to regulate such claims by the provisions of the

Motor Accidents (Compensation) Act. In the absence of an express

provision it is unlikely that the intention was to provide further regulation of

such claims under a different, and possibly conflicting, legislative regime.
Further, it is unlikely that the intention was to have any action for damages

of a non-resident resolved under the Personal Injuries (Liabilities and
Damages) Act whilst all other claims for damages or benefits arising out of

injuries suffered in a motor vehicle accident were to be dealt with under the

Motor Accidents (Compensation) Act.

1. Support for this view is to be found in the treatment of a claim for damages

   by a non-resident injured in a motor vehicle accident involving an uninsured

motor vehicle. Regulation 3 provided for the exclusion of a "claim ... for
damages" from the operation of the Personal Injuries (Liabilities and

Damages) Act. The only claim for damages referred to in the Motor

Accidents (Compensation) Act, as it existed at the time, is to be found in
s 40A. The section has subsequently been repealed. However, at the
relevant time it permitted "a claim for damages" in respect of a person who
was not a resident to continue against the Territory Insurance Office and not
against the owner or driver of the uninsured vehicle. Both parties accept
that, what is referred to and excluded by the terms of r 3 can only be a

"claim for damages" under s 40A of the Act. It follows that a claim for
damages by a person injured in a motor vehicle accident and who was not a

resident, where the vehicle concerned was uninsured, will be governed by
the provisions of the Motor Accidents (Compensation) Act.

[15]   It is unlikely that Parliament intended to exclude from the operation of the

Personal Injuries (Liabilities and Damages) Act an action for damages by a

non-resident when the motor vehicle was uninsured and not do so in relation
to an action for damages by a non-resident when the vehicle was insured.

The effect of the submission on behalf of the plaintiff was that the claim of

a non-resident plaintiff for damages will be covered by one legislative
regime or the other, depending upon the incidental circumstance of whether
the vehicle was or was not insured. There is no apparent reason for

distinguishing between such claims on this basis.

Surplusage

1. The plaintiff was unable to suggest any reason for the employment of the

alternative formulations for exclusion contained in the expression a "claim
or action for damages" found in the regulation. When pressed it was
submitted that the word "action" is mere surplusage and is to be ignored. As
a general principle of interpretation courts seek to provide all words with
some meaning and effect. Generally speaking courts do not treat words as
being superfluous and to be ignored. Whilst it is acknowledged that it may

not be possible to give a full and accurate meaning to every word, the court
is to give words a construction which produces the greatest harmony and

least inconsistency.[2] In the present case the interpretation contended for by

the defendant gives all words in the section work to do.

Action "under" the Motor Accidents (Compensation) Act

[17]   The plaintiff contends that no "action for damages" arises "under" the Motor

Accidents (Compensation) Act. However, on one view of s 5 as it existed at

the relevant time[3], the action for damages available to a non-resident does

arise "under" the Motor Accidents (Compensation) Act even though the right
to damages originally arose at common law. The section provides that an

action for damages shall not lie in the Territory in respect of an injury to a person who was not a resident of the Territory and then goes on to provide

exceptions to the prohibition. The non-resident has a common law claim to damages as preserved under the Act. In my opinion the action for damages

can be said to be available “under” the Act.

Conclusions

[18]   The present proceedings are "an action for damages under the Motor

Accidents (Compensation) Act" and, as such, are excluded from the

operation of the Personal Injuries (Liabilities and Damages) Act pursuant to

r 3.

1. The damages in this case are to be assessed in accordance with the

   provisions of the Motor Accidents (Compensation) Act.

-------------------------------

[1] (2001) 11 NTLR 121 at 127

[2]  Statutory Interpretation in Australia (sixth edition) Pearce and Geddes at (2.22)

[3]  See paragraph [3] above