Martin v Butts and Barkley (a firm)
[2003] QDC 25
•1/03/2003
DISTRICT COURT OF QUEENSLAND
CITATION: Martin v Butts & Barkley (a Firm) [2003] QDC 025 PARTIES: JANET MARTIN
Plaintiff/Applicant
And
BUTTS & BARKLEY (A FIRM)(A FIRM)
Defendant/Respondent
FILE NO/S: D3607 of 2000 DIVISION: District Court of Queensland PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 1 March 2002 DELIVERED AT: Brisbane HEARING DATE: 4 February 2002 JUDGE: Judge McLauchlan QC ORDER: Questions answered adversely to the Applicant/Plaintiff CATCHWORDS: COUNSEL: Mr C Newton for the Plaintiff/Applicant
Mr G Mullins for the Defendant/RespondentSOLICITORS: Carter Capner for the Plaintiff/Applicant
Quinlan Miller & Treston for Defendant/Respondent
This is an application brought under Chapter 13 Part 5 UCPR for the determination of questions arising in the action between the above parties. The plaintiff suffered injury on 24 November 1998 allegedly as a result of the negligent operation of a minibus by a servant of Dazbay Pty Ltd, a company which operated a car park at the Brisbane Airport and further operated a mini bus service between the car park and the Brisbane Domestic Air Terminal. The defendant is a firm of solicitors which the plaintiff had engaged to represent her in a claim for damages against the company. The vehicle involved in the incident was one of three minibuses owned and employed by the company at that time to transfer people from the car park to the domestic air terminal. The company had taken out compulsory third party insurance in respect of two of the three minibuses with MMI insurance group, and in respect of the other, with Suncorp-Metway. Efforts have been made to ascertain from the driver of the vehicle concerned, and by reference to the records of the company, which of the three vehicles was involved in the incident in which the plaintiff was injured, but these efforts have proved unsuccessful.
The plaintiff claims that the vehicle by through or in connection with which she suffered personal injury in the incident mentioned cannot be identified, and that therefore, by operation of s.31(1) and (2) of the Motor Accident Insurance Act 1994 the nominal defendant is the insurer for the statutory insurance scheme under that Act. It is accepted that the defendant did not give a notice to the nominal defendant pursuant to the provisions of s.37 of the Act, and that any claim against the nominal defendant is now barred. Section 52 of the Act requires that the insurer be a defendant in an action for personal injuries arising out of a motor vehicle accident.
The application is brought upon an agreed statement of facts which is as follows:-
1. The plaintiff is an injured person born 28 March 1947. 2. The defendant was a firm of solicitors who gave advice to the plaintiff. 3.
While acting for the plaintiff in the personal injuries matter, a prospective action against the nominal defendant became statute barred.
4. Dazbay Pty Ltd operated a car park known as “Airport Secura Park”. 5.
Dazbay as part of its car park services operated a minibus service between the car park and the Brisbane Domestic Airport Terminal.
6.
Dazbay Pty Ltd operated the minibus service utilising three separate minibuses.
7. Lynda Fletcher was employed, inter alia, as a driver by Dazby Pty Ltd. 8.
Dazbay Pty Ltd retained no records of which minibus was used to transfer particular passengers at any particular time or on any particular day.
9.
On 24 November 1998, the plaintiff was transferred from the car park to the Brisbane Domestic Air Terminal by one of the minibuses driven by Lynda Fletcher.
10.
While dismounting at the Domestic Air Terminal the plaintiff fell, which fall was as a result of the minibus being driven and stopped too far from the kerb.
11.
The three minibuses owned by Dazbay Pty Ltd were all Toyota Hiace buses which were similarly coloured and marked.
12.
The plaintiff is unable to identify which of the three Toyota Hiace buses owned by Dazbay Pty Ltd took her to the airport.
13.
Dazbay Pty Ltd has no record to assist in identifying which of the three buses transported the plaintiff to the airport.
14.
Lynda Fletcher, while recalling the accident, cannot recall which of the three Toyota Hiace buses she was driving at the time.
15.
One of the Toyota Hiace buses, registered number 611- CQP, had its CTP insurance policy with Suncorp-Metway.
16.
Toyota Hiace bus registered number 794-BUP had its CTP policy with MMI insurance group.
17.
Toyota Hiace bus registered number 622 – BIU had its CTP policy with MMI insurance group.
18.
The plaintiff is unable to say which of the three buses is the bus which transported her to the airport.
19.
The said Lynda Fletcher is unable to say which of the three buses was the bus which transported the plaintiff to the airport.
20.
Dazbay Pty Ltd has no records and is unable to assist with identifying which of the three buses transported the plaintiff to the airport.
21.
The defendant disputes its liability on the basis that these facts do not give rise to an inability on the plaintiff’s part to identify the motor vehicle or insurer under its CTP insurance policy.
22.
If the defendant is correct, the claim will be fatal to the plaintiff’s action and the issue should reasonably be determined as a matter of statutory construction on these facts.
Essentially the application seeks answers to the following questions:-
1.
Whether, on the agreed facts, the applicant, despite having made proper enquiry and search, has been unable to establish the identity of the motor vehicle within s 31(2) of the Motor Accident Insurance Act;
2.
Whether, if the applicant had chosen to sue Dazbay Pty Ltd as the owner of all the buses in a personal injury action, the applicant would have failed because the applicant was unable to say which insurer under its CTP insurance policy was relevantly applicable; and
3.
Whether, on the agreed facts, the motor vehicle or the insurer under its CTP insurance policy cannot be identified, and the nominal defendant would have been the proper insurer.
It is not in doubt that the answers to these questions depend, substantially, upon the application to the facts of the decision in Howell v The Nominal Defendant [1961- 1962] 108 CLR 553. That was an action brought against the nominal defendant in reliance upon s.30(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942- 1951 (NSW). The relevant provision was as follows:
“(2)(a) Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due enquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the nominal defendant the claim which he could have enforced against the owner or driver of the motor vehicle…”
It was held by a majority (McTiernan, Taylor and Windeyer JJ; Kitto and Owen JJ dissenting) that the provision quoted authorises the enforcement of a claim against the nominal defendant only where the identity of the motor vehicle cannot be established in the sense that the motor vehicle cannot be found or traced; the sub- section has no application where a plaintiff is unable to determine which of two motor vehicles, both or one being known, caused his injury.
In that case the plaintiff had sustained his injuries when the vehicle which he was driving collided with a vehicle driven by one Black. No allegation of negligence was made against Black, the plaintiff’s case being that his vehicle had been struck from behind from another vehicle, which was negligently driven, causing his vehicle to come into collision with the vehicle driven by Black. It further appeared that there were two cars being driven behind the plaintiff’s car and in the same direction. One of them as the plaintiff knew before he commenced his action was driven by one Burns; the other, described only as a grey car, continued on its way after the collision and its identity and that of its owner and driver had never been ascertained by the plaintiff. The case made by the plaintiff was that at the date of the issue of the writ he was, notwithstanding due enquiry and search, unable to say whether the car which had struck his car was the one driven by Burns or the grey car, and it was in these circumstances that he claimed to maintain his action against the nominal defendant.
In considering the reasons of the various members of the court it appears to me that it is common ground that there are two situations which fall to be considered in deciding what meaning is to be attributed to the expression “identity of the motor vehicle”. In the first situation, enough is known about the vehicle in question by way of time, date, place and circumstances to implicate it as the vehicle responsible for the incident in respect of which the plaintiff sues, so that proceedings could be issued if the vehicle were further identified with respect to the driver and owner. The second situation is where the vehicle is not identified in the sense first used above, so that the intending plaintiff cannot say which of a number of possible vehicles was at fault in the incident. The majority took the view that the expression “identity of the motor vehicle” refers to identity in the sense in which it is used in the first situation mentioned above, whereas the minority thought that although it included “identity” in that sense, it also applied in the second situation, that is where not enough is known to isolate one vehicle from others as being implicated in the incident which it is desired to litigate.
McTiernan J at pages 554-555 said:-
“It is argued for the appellant that he is not deprived of the remedy under s.30(2)(a) because the identity of Burns’ car was known to him before action; that the material matter is that he did not see that car before his car was struck from behind nor afterwards as he had been rendered unconscious by the collision with Black’s car and taken to hospital. According to this argument the words “the identity of the motor vehicle” in s.30(2)(a) mean the identity of the person using the motor vehicle by which the agreed person is injured; otherwise, so the argument runs, if there are a number of motor vehicles at the scene of the accident, and he is not able to identify the motor vehicle which injured him, although he is able to identify all the motor vehicles at the scene of the accident he would have no remedy under s.30(2)(a). The short answer to this argument is that these provisions are not intended to provide for such a case. Indeed s.2(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) applies to the case postulated.”
Taylor J, at page 561 said:-
“Consideration of the sub-section leads me to the conclusion that it is concerned only to give an injured plaintiff a right of action against the nominal defendant by way of substitution for a valueless right of action against an unidentifiable owner of a motor vehicle. But it does no more than this. It does not enable a plaintiff to succeed against the nominal defendant where, merely by reason of lack of proof on the issue of liability, he is unable to establish that an identified motor vehicle was the cause of his misfortune. That this is so is I think, again clearly emphasised by the requirement that a plaintiff in an action against a nominal defendant must allege and prove that there has been due enquiry and search for the purpose of identifying the offending motor vehicle and that it has been impossible thereby to establish its identity. This requirement, in my opinion, is appropriate only to describe steps taken to discover the identity of a motor vehicle and is not appropriate to describe an examination of a set of circumstances in order to determine which of two identified motor vehicles have caused injuries to the plaintiff. In such a case the plaintiff may bring his action against both owners pursuant to the provisions of s.2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). But of course it would still be incumbent upon him, in order to succeed against any one of the defendants in such proceedings, to prove that his car was driven negligently and was a cause of the injuries complained of.”
| [11] | Windeyer J at pages 562-563, said, with reference to the distinction I have referred to above:- |
“it is the distinction between, on the one hand, seeking for a vehicle identical to one already specified as, that is asserted to be, (or “identified” as) that one which caused the injury – and, on the other hand, ascertaining by investigating facts which vehicle it was that caused the injury, so that it may be so specified (or “identified”). Assume several motor vehicles to be involved in an accident when a man was knocked down: he, not knowing which vehicle hit him may say “I cannot identify the vehicle that hit me”: or, if he does not know, he may say “I identified the vehicle that hit me. It was a black Ford that drove off, but notwithstanding enquiries and search I cannot establish its identity”.
“I do not dispute that the phrase “the identity of the motor vehicle cannot be established” can describe those situations to which in the argument for the appellant it was thus sought to apply it. But, with respect to those who think otherwise, I cannot agree that s.30(2)(a) of the Act covers both. The homonymous way in which, in the argument the language of the section was applied may not be at once apparent. And it is perhaps not readily explained in words. Yet there is, in my view, a real distinction between seeking for the thing to which a character or quality has been attributed, and seeking for a thing to which to attribute that character or quality. Read as a whole, the section, I think, applies to the first not to the second and the appellant’s argument thus I consider involved an insidiously ambiguous “middle term.”
This court is of course bound by the decision in Howell v The Nominal Defendant. According to the reasoning of the majority it cannot be said in this case that whichever of the vehicles was involved in the incident as a result of which the plaintiff suffered injury, that vehicle is not or cannot be identified. On the contrary it is identified, and the difficulty which the plaintiff suffers is not one of establishing the identity of the vehicle but of proving which vehicle it was that was implicated in the incident.
As was pointed out in that case in such a situation proceedings can be brought against all the persons or entities, potentially liable to the plaintiff. Such provision is now made in Rule 65 UCPR. That is to say, the plaintiff is able, or was able during the relevant limitation period, to issue proceedings against the company Dazbay Pty Ltd and both the insurers under the CTP policies in existence with respect to the three vehicles. The plaintiff would then be faced with the difficulty of establishing which vehicle was the one from which she in fact alighted and injured herself, but that problem, as the court stated in Howell, is not a problem with which the provisions enabling action to be taken against the nominal defendant are intended to deal.
It was urged that the decision in Howell can be distinguished upon the basis (inter alia) that the legislation is relevantly different. However in my opinion the provisions dealt with in Howell, and the provisions in s.31 of the Motor Accident Insurance Act 1994, with respect to the nominal defendant are, in substance, the same. Other points of difference were suggested but in my opinion had no substance.
In the result the questions referred to earlier in these reasons are answered adversely to the applicant/plaintiff. If the parties desire any particular orders or declarations to be made, consistently with these reasons, they can prepare a short minute for my consideration. I will hear submissions as to any other matters.
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