Motor Accident Commission v Leslie - [2018] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOTOR ACCIDENT COMMISSION v LESLIE
[2018] SASCFC 50
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
12 June 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - SCHEDULES
TORTS - THE LAW OF TORTS GENERALLY - GENERAL PRINCIPLES - ACTIO PERSONALIS MORITUR CUM PERSONA AND SURVIVAL OF CAUSES OF ACTION - SURVIVAL OF CAUSE OF ACTION
LIMITATION OF ACTIONS - GENERAL
Appeal brought by the Motor Accident Commission against a decision of a Judge of the District Court, dismissing an appeal against the order of a Master of that Court, that it be joined as a second defendant to the personal injuries action in which the first respondent, Mr Leslie, was the plaintiff.
The plaintiff’s action was instituted in December 2011, for damages for personal injury against MAC’s insured, Mr Shore, the driver of the car in which the plaintiff was a passenger. On 13 October 2013 Mr Shore passed away. By s 2 of the Survival of Causes of Action Act 1940 (SA) the plaintiff’s action against Mr Shore survived as against Mr Shore’s estate because it was pending at the date of his death.
A Master of the District Court made both an order substituting the estate of Mr Shore and adding the Motor Accident Commission as the second defendant. The Master gave permission to the plaintiff to file an amended statement of claim. The proposed amended statement of claim which the plaintiff intends to prosecute was, by agreement, placed before this Court.
Held, per Kourakis CJ (Kelly and Blue JJ agreeing):
1. The Motor Vehicles (Third Party Insurance) Amendment Act 2011 (SA) does not apply to actions brought pursuant to s 113 of the Motor Vehicles Act 1959 (SA) with respect to injuries sustained before 10 July 2011. The Motor Accident Commission was properly joined (at [43]).
2.. Appeal dismissed.
Survival of Causes of Action Act 1940 (SA) s 2; Motor Vehicles (Third Party Insurance) Amendment Act 2011 (SA) Sch 1; Motor Vehicles Act 1959 (SA) s 99(3), s 112, s 113, Sch 4, s 124A; District Court Civil Rules (2006) R 76; Compensation to Relatives (Amendment) Act 1953 (NSW); Judiciary Act 1903 (Cth); Supreme Court Probate Rules 2015 r 11, r 34; Supreme Court (Civil) Rules 2006 r 83(4); Public Trustee Act 1995 (SA) s 9, referred to.
Carslake v Guardian Assurance Co (1977) 15 SASR 378; Maxwell v Murphy (1956-1957) 96 CLR 261; Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553; Re a Solicitor's Clerk [1957] 1 WLR 1219; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712; Re Butler [1969] Qd R 106; The Ydun [1899] P 236; Staska v General-Motors Holden's Pty Ltd [1972) 123 CLR 673 (Privy Council); General Motors-Holden's Pty Ltd v Staska (1969) 119 CLR 301 (High Court);

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] SASCFC 50
Decision Date: 12 June 2018

CaseChat Overview and Summary

The Motor Accident Commission (MAC) appealed a decision of the District Court of South Australia concerning the interpretation of amendments to the *Motor Vehicles Act 1959* (SA) (the MVA). The dispute centred on whether MAC could be joined as a defendant in an action brought by a claimant who had sustained injuries indirectly, prior to 10 July 2011, in circumstances where the insured party had died or disappeared.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the amendments introduced by the *Motor Accident Commission (Motor Accident Insurance Scheme) Amendment Act 2011* (SA) (the Amendment Act) applied retrospectively to claims for injuries sustained before 10 July 2011, specifically in relation to the joinder of MAC as a defendant under section 113 of the MVA.

The Court, in dismissing the appeal, reasoned that MAC's construction of the Amendment Act would lead to an arbitrary and unjust outcome. It would mean that the right to recover damages, or to recover without deduction for the insured's breach of warranty, for indirectly sustained injuries occurring before 10 July 2011, would depend on factors outside the control of the injured person, such as the timing of the insured's death or disappearance. The Court held that such an arbitrary operation should not be attributed to Parliament and that the Amendment Act did not apply to actions brought under section 113 of the MVA for injuries sustained before the specified date. Consequently, MAC was properly joined as a defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On MAC’s construction, Parliament intended that the right to recover at all, or recover without deduction for breach of the insured’s warranty, for injuries indirectly sustained before 10 July 2011, would depend on matters over which the injured person had no control, such as the timing of the death or disappearance of the insured. Whether or not the injured person’s right can properly be characterised as vested, and therefore protected by the common law presumption, such an arbitrary operation is unjust and should not be attributed to Parliament.Conclusion The Amendment Act does not apply to actions brought pursuant to s 113 of the MVA with respect to injuries sustained before 10 July 2011. MAC was properly joined. I would dismiss the appeal. KELLY J: I agree with the Chief Justice. BLUE J: I agree with the Chief Justice.

Ratio Decidendi

Legal Principle Established

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