Nominal Defendant v Lawes

[2008] HCATrans 124

[2008] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B60 of 2007

B e t w e e n -

NOMINAL DEFENDANT

Applicant

and

RICKY LEE LAWES

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 7 MARCH 2008, AT 11.14 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR R.B. DICKSON, for the applicant.  (instructed by Broadley Rees Lawyers)

MR R.J. DOUGLAS, SC:   May it please the Court, I appear with my learned friend, MR P.B. DE PLATER, for the respondent.  (instructed by McNamara Garrahy Lawyers)

MR SOFRONOFF: Could I ask your Honours to go to section 5 of the Motor Accident Insurance Act, which is at page 16 of the version that I think was sent down to the Court.

KIRBY J:   Yes.

MR SOFRONOFF: If your Honours look at section 5(1) you will see that section 5(1)(a) contains a group of matters which define what can be called the matters that the relevant injury must be as “a result of”, that is to say, it must be the result of the conduct described in 5(1)(a). If you then look at 5(1)(b) the injury must be caused:

by a wrongful act or omission in respect of the motor vehicle -

So, 5(1)(b) relates to causation by liability. Section 5(1)(a) is injury as a result of conduct, 5(1)(b) caused by liability. If your Honours then go to the policy of insurance itself, which is at page 111 of the Act in the schedule you will see that clause 1(3) provides that the liability against which the policy insures:

is a liability for personal injury to which the Motor Accident Insurance Act 1994 applies -

So we can see from those two provisions that section 5 is crucial to the operation of the scheme of this Act. The applicant happens to be the Nominal Defendant but nothing turns on that because the Nominal Defendant is deemed to be an insurer in circumstances where the wrongdoing vehicle is not identified.

So the point in this case is one which is of importance for the operation of the scheme of the Act in Queensland.  As Mr Merza in his affidavit, which we filed and which appears at ‑ ‑ ‑

KIRBY J:   Yes, I meant to note that.  Is there any objection to the reading of that affidavit, Mr Douglas?

MR SOFRONOFF:   No, there is not, your Honour, Mr Douglas has ‑ ‑ ‑

MR DOUGLAS:   That is so, your Honour.

KIRBY J:   Yes, very well.  It seems to deal with a number of cases under the Act, not with Nominal Defendant cases.

MR SOFRONOFF:   Quite, because the provision that we direct our attention towards applies generally to insurers, and applies to the Nominal Defendant as a deemed insurer in cases of unidentified ‑ ‑ ‑

KIRBY J:   But why did you not use the formula that is used in the New South Wales Act which was considered in Allianz v GSF, which is caused during the driving?

MR SOFRONOFF:   Your Honour, I cannot answer why the drafters chose this language rather than ‑ ‑ ‑

KIRBY J:   Before your time as Solicitor-General.

MR SOFRONOFF:   1994, your Honour.

KIRBY J:   Yes.  I do not think it would have slipped under your radar.

MR SOFRONOFF:   Well, I do not know why, your Honour.

CRENNAN J:   Mr Sofronoff, can I ask you whether on the appeal there was any point or any challenge made on behalf of the Nominal Defendant to the finding that the driver was under a duty to exercise reasonable care to prevent the brumby causing harm to others?

MR SOFRONOFF:   No, your Honour.  Your Honour might have noticed that Justice Jerrard doubted whether there was any breach of duty, and indeed in another place on another occasion one could run a respectable argument that on Queensland country roads, indeed on Australian country roads, there is no duty to remain at the scene after knocking over a kangaroo or a beast or a horse.  After all, what is one to do?  How long is one to stay?  What are you supposed to do?  Is it not the case that when you drive along these roads one of the dangers you watch for is a dead animal.

Anyway, in this case if your Honours grant special leave the facts are neat and uncontroversial and give rise to this question, in a case where the driving was non-culpable, that is to say the actions of the driver in controlling the vehicle were non-culpable, and there was a later wrongful act or omission which was in some respect in respect of the motor vehicle but was unrelated to the driving or a collision or the motor vehicle running out of control or a defect in the vehicle causing loss of control, does the policy apply?  In our respectful submission, that raises an important point and not one that has been thought of just for this case.

Could I ask your Honours to look at Raschke v Suncorp (2005) 2 Qd R 549? In that case, your Honours, a prime mover towed a trailer loaded with cotton bales. At the end of the journey one of the bales fell off and injured the plaintiff. It was alleged that the driver who loaded the vehicle should have loaded the vehicle in a more careful way and should have checked the load when he got to his destination. There was no allegation that there was anything wrongful in the manner of driving, that is to say in the manner of control of the vehicle.

The point in the case was one relating to an extension of time under the Limitations Act, but Justice Keane with whom Justice McPherson agreed, said at 561, if your Honours look at that, there were a number of concessions made by the appellant in that case.  After referring to one of those concessions at paragraph 37 on page 561, the second sentence, his Honour said:

Similarly, it might be argued that, having regard to the history of motor vehicle accident insurance legislation in Queensland and to the context of s.5(1) of the MAIA, the collocation of s.5(1)(b) with s.5(1)(a) has the effect, that when s.5(1)(b) speaks of a wrongful act or omission “in respect of the motor vehicle”, it is speaking of a wrongful act or omission in respect of those matters concerning the motor vehicle referred to in s.5(1)(a). In other words, so the argument might go, the wrongful act or omission referred to in s.5(1)(b) must relate directly to one or more of the matters referred to in s.5(1)(a)(i) – (iv) of the MAIA.

That argument was agitated before the Court of Appeal.  Could I ask your Honours to go to Justice Muir’s reasons at page 29 of the book?  In paragraph 41 after setting out the terms of the section his Honour concluded that the argument would require the addition of words.  In paragraph 42 in the second half his Honour concluded:

The two paragraphs are concerned with different matters.  Paragraph (a) requires the relevant injury to be the result of one or more specified matters.  Paragraph (b) requires the injury to be caused by a wrongful act or omission -

That, in our respectful submission, is where the error lies in that what his Honour says in the last sentence of paragraph 42 is simply descriptive of the section and does not answer the question, and indeed does not address the question, whether indeed in every case the omission, that is to say the basis of liability, must relate to one of the matters, the driving or the collision or the vehicle running out of control or as the case may be, a defect.  Thus, in the case, for example, of the manufacturer who manufactures a car with a defective part, that would come within (b) and might come then within (ii), (iii) or (iv) of subparagraph (a).

KIRBY J:   But, Mr Solicitor, we have read the written submissions, we know what the issue is, and I mean, this Court has had countless cases over 40 or 50 years about the words of connection, they differ from Act to Act, but it is simply a matter of applying the statute to the particular facts of the individual case, and though I would accept that you have landed a few blows in your written and oral submissions, the fact is that it really is simply a matter of trying to see whether the connection with the statute is that which is expressed and intended in the statutory language.

Well, now, you have three judges of the Queensland court dealing with Queensland legislation, which is different from the New South Wales legislation considered in Allianz, who have found in the way that you challenge.  Why would we get involved in this?  What important issue of principle is there that this Court would be dealing with?

MR SOFRONOFF:   Your Honours, for Queensland this section is pivotal to the statutory scheme.  If their Honours are, as we respectfully contend, wrong in failing to see the necessity for a connection between the two subparagraphs, then that error will persist unless the ultimate Court of Appeal for Queensland, the High Court, deals with it.  Your Honours took on the Container Handlers Case from WA.  Your Honours have taken on the New South Wales cases that your Honour has mentioned.  This is a Queensland Act which is on all fours in the sense of importance.

KIRBY J:   We are getting a bit tired of all these cases because they are not really issues of legal principle, they are simply issues of the application of the particular facts to the statute in each case, and if your Parliament is not content with it and you would be able to give advice, they can adopt the formula that was used in the Allianz Case and that would have solved the problem from your point of view.

MR SOFRONOFF:   Your Honour, with respect, the meaning of an important Queensland statute is a matter of important principle as far as this State is concerned, or any other State ‑ ‑ ‑

KIRBY J:   I have not forgotten Justice Callinan’s constant observation that we ‑ ‑ ‑

MR SOFRONOFF:   I was about to remind your Honour of that.

KIRBY J:   ‑ ‑ ‑ you were going to be very delicately bringing me round to that, but we are conscious of that, but you have the four judges and it is very strongly arguable that their view is correct.  You might be able to persuade this Court to a contrary view, but it is basically a question of fact.  Interpreting a statute with ordinary English is a question of fact.

MR SOFRONOFF:   Your Honour, it is put against us that the Nominal Defendant is a statutory corporation, and that for that reason it has some power or influence in changing the law.  The position is that this statute governs third party motor vehicle insurance, which affects private insurers, and a statutory ‑ ‑ ‑

KIRBY J:   That is true, but they see the Solicitor-General of the State turn up who has a much better chance of catching the ear of those who control the preparation of legislation in Queensland than an ordinary litigant, even an insurance company, private insurance.

MR SOFRONOFF:   Your Honour, I could not possibly respond to that submission - to that observation, I should say.  The point we wish to make ‑ ‑ ‑

KIRBY J:   I think that was the point they were making, and it is a fair forensic point.

MR SOFRONOFF:   For instance, it would be a point that could be made about the interpretation of any legislation, and most of all if I happen to be lucky enough to get a brief in the matter.  It is not a valid point, in my respectful submission.  It cannot be the case that an arguably erroneous construction of a Queensland State statute must remain such on the books that govern relations hereafter unless the Parliament takes an interest and decides to change the law.  It might not wish to for some particular reason.  It might not wish to for a lot of reasons that are imponderable in a case like this.

In our respectful submission, if there is a strongly arguable case, there is because the case we wish to advocate appealed to Justice McPherson and to Justice Keane, then the High Court ought to hear that case and if it thinks fit correct the wrong interpretation that is currently the law in Queensland.

It cannot be an answer, in my respectful submission, to say, whenever a State statute arises for consideration by the highest Court where there is no right of appeal that the short answer to any application for special leave is get the Act amended.  Those are our submissions, your Honour.

KIRBY J:   Yes.

MR SOFRONOFF:   I should mention, there is the other aspect which was agitated at trial, not on appeal, as to whether the injuries were as a result of the driving.  Now, that is a very important matter.  It was not agitated on the appeal, and ‑ ‑ ‑

KIRBY J:   The result of the driving was striking – or this is a causation argument, is it, that the injury to the plaintiff – or that there was a break in the connection between the driving that struck the horse ‑ ‑ ‑

MR SOFRONOFF:   No, your Honour.  In the Container Handlers Case, Justice Heydon and Justice McHugh, and I think your Honour did as well, made the point that the words “the driving”, with the definite article, demonstrated that what is being pointed to are the actions of the driver.  There is no action of the driver here, and yet what the learned trial judge did was to equate the presence of the motor vehicle on the road with the driving.  But for the car having been driven at all on that road the injury would not have happened.  What needed to be pointed to was some action on the part of the driver which resulted in the injury.  We do not wish to argue degrees, degrees can be very wide.

KIRBY J:   Well, the suggested action was simply leaving the brumby there in the middle of the road and not doing ‑ ‑ ‑

MR SOFRONOFF:   But that was not “the driving”, that was something else.  That was not “the driving”.  The driving that the court relied upon below at the trial was the driving of the vehicle without blame in no way that could be pointed to as causative of anything, that is to say the vehicle being on the road.  What needs to be pointed to, in our respectful submission, is an action of the driver in the conduct – the manoeuvring of the vehicle that results in the injury.  That is important, your Honours, because if we are correct in that, and in our submission we must be because the High Court has said so in the Container Handling Case, then that links to the liability in the second subparagraph.

KIRBY J:   Well, there are two steps.  One is it has to be a result of the driving and then secondly it has to be caused wholly or in part by wrongful act or omission in respect of the vehicle.  So the argument against you is, well, it meets the first step, especially in the light of your concessions and the fact that you are not challenging the factual finding below because the driving was the precipitating event.  Unless you had been driving in a way that struck the brumby you would not have had any problem.  I mean, I realise the causation questions are always theological and it is a question of where you draw the line.  I understand your argument, but ‑ ‑ ‑

MR SOFRONOFF:   Your Honour, I am not addressing the question of the presence of the vehicle in locomotion on the road.  What the Container Handlers dicta by three of your Honours demonstrated was that what was necessary was to point to something that the driver did that resulted in the injuries.  The driver did nothing here that resulted in the injuries.  The driver was driving along the road and hit a horse.  Thereafter, there was no action of his that could answer the description “the driving”.  The point is a legal one.

KIRBY J:   But the statute talks of omission, and the suggestion is simply leaving the brumby that he strikes in the middle of the road is an omission.

MR SOFRONOFF:   Your Honour, that is the second limb, that is the second limb.  The first limb requires there to be something called “the driving”, which we know to be the action of the driver, and nothing was pointed to.  So we have two disconnected actions of the driver.  One is the vehicle is in locomotion on the road which results in nothing, and the second is the wrongful failure to remain and warn which indeed caused the injuries.  But the first limb is not satisfied and there is no connection between the two, and that is the point that we wish to agitate before the High Court.

KIRBY J:   Yes.

MR SOFRONOFF:   Those are our submissions, your Honour.

KIRBY J:   Thank you very much, Mr Solicitor.  Mr Douglas, we do not need your assistance in this case.

Given the unchallenged findings of fact which were made below, we are unconvinced that there would be reasonable prospects of success, were special leave granted. We do not consider that the applicant would persuade the Court, in the unusual factual circumstances of this case, that the Court of Appeal of Queensland erred in the construction which it gave, and applied, to section 5(1) of the Motor Accident Insurance Act (Qld) 1994.

Accordingly, special leave is refused.  It will be refused with costs.

AT 11.34 AM THE MATTER WAS CONCLUDED