Nominal Defendant v Taylor

[1982] HCA 38

HIGH COURT OF AUSTRALIA

Mason, Murphy, Wilson and Brennan JJ. (The Honourable Mr. Justice Aickin died before judgment was delivered in this case.)

NOMINAL DEFENDANT (Q.) v. TAYLOR

(1982) 154 CLR 106

24 June 1982

Insurance

Insurance—Third party insurance—Uninsured vehicle—Action against nominal defendant—Nominal defendant liable if owner would have been liable if insured—Owner killed while passenger in vehicle negligently driven by his wife—Claim by dependants under fatal accidents legislation—Statutory agency of wife—Effect in relation to death of husband—Common Law Practice Act 1867-1978 (Q.), ss. 12,13—Motor Vehicles Insurance Act 1936-1979 (Q.), ss. 3(2), 4F(2).

Decisions

1982, June 24.
The following written judgments were delivered: -
MASON AND BRENNAN JJ. The respondents, the children of Allan Wilfred Taylor ("the deceased"), commenced an action in the Supreme Court of Queensland by their next friend against the appellant for compensation for loss of support under ss. 12 and 13 of the Common Law Practice Act 1867-1978 (Q.) (the Queensland counterpart to the Fatal Accidents Acts). The statement of claim alleged that on 14 April 1978 the respondents' mother, Gwenda May Taylor, was driving a Holden station sedan along the New England Highway when, through her negligence, the vehicle collided with a semi-trailer, causing her death and that of the deceased who was evidently a passenger in the vehicle. The deceased, on whom the respondents were dependent for their maintenance and financial support, was the owner of the car. (at p108)

2. The appellant demurred to the statement of claim on the ground that under s. 4F(2) of the Motor Vehicles Insurance Act 1936-1979 (Q.) ("the Act") it is only liable for damages caused in Queensland in the circumstances pleaded by, through or in connexion with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable under the Act were it insured at the material time, and that the deceased was not and could not be liable for the damages claimed. (at p108)

3. The appellant is a body corporate (s. 4D(1)) and is the statutory authority against whom claims are made and actions brought in respect of the use of uninsured and unidentified motor vehicles in Queensland (s. 4F). The appellant satisfies these claims by payments out of "The Motor Vehicle Insurance Nominal Defendant Fund" established under s. 4E of the Act. (at p108)

4. Section 4F(2) is in these terms:

"Every claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connection with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable were it insured under this Act at the material time, may be made to The Nominal Defendant (Queensland) and any action to enforce any such claim may be brought against The Nominal Defendant (Queensland). Any such claim may be so made and any such action may be so brought notwithstanding that the owner of the uninsured motor vehicle is dead. . . ."

The sub-section takes its present form as the result of an amendment made on 21 December 1979 which seems to be immaterial. In any event, the amending Act provided that the sub-section should be construed and applied as if the words substituted by the amending Act had appeared in the sub-section at all times from its enactment. The result is that s. 4F(2) applies to the present case in its amended form. (at p109)

5. The Full Court overruled the demurrer, concluding that had the vehicle been insured pursuant to the obligation imposed on the deceased as owner by s. 3(1) of the Act, the contract of insurance would have indemnified him as owner and his wife as driver against all sums for which either of them or the estate of either of them should become legally liable by way of damages in respect of the vehicle for accidental bodily injury to any person caused by, through or in connexion with the vehicle. The Full Court relied on s. 3(2) of the Act which deems, for the purposes of the contract of insurance and every claim for accidental bodily injury to any person caused by, through or in connexion with an insured motor vehicle, every person who at any time is in charge of the motor vehicle "to be the authorised agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent". By the operation of this provision, had the vehicle been insured, the deceased's wife would have been the statutory agent of the deceased and he would have been liable for her negligence. This, according to the Full Court, led to the conclusion that the deceased would have been "legal liable", these words having a meaning equivalent to "responsible in law" (1981) Qd R 125, at p 127 . (at p109)

6. The Full Court concentrated its attention on s. 4F(2) and the related provisions of the Act. By so doing it obscured the problems which in this case are presented by s. 12 of the Common Law Practice Act. The cause of action created by s. 12 is quite separate and independent from the cause of action which the deceased would have had if he had lived: Unsworth v. Commissioner for Railways (1958) 101 CLR 73, at p 90 ; Victorian Railways Commissioners v. Speed (1928) 40 CLR 434, at p 438 . The action is given not to the person representing the estate of the deceased, but to the spouse, parents and children of the deceased (s. 13) and the cause of action is not one which he could have brought had he survived, for it is his death that is the cause of action: see Seward v. "Vera Cruz" (1884) 10 AppCas 59, at p 67 . As the Earl of Selborne L.C. there comments, although contributory negligence or fault or, on the part of the deceased, a release by him would bar any right of action he had, they do not operate to bar the right of action under the Fatal Accidents Acts. Accordingly, there is nothing in the suggestion made by the appellant that the respondents here are claiming through the deceased. (at p110)

7. What the respondents had to establish under s. 12 was that the death of their father was caused by "a wrongful act, neglect or default" and that but for his death, the wrongful act, neglect or default "would have entitled" him "to maintain an action and recover damages in respect thereof". Then "the person who would have been liable . . . shall be liable to an action for damages, notwithstanding the death of the person injured . . .". The existence of liability in an action for damages on the part of the wrongdoer to the deceased bread-winner is an essential condition of the plaintiffs' cause of action under s. 12. The problem here is that the father would not have had an action against himself. He would have had an action in negligence against his wife had she lived (s. 119 of the Family Law Act 1975 (Cth), as amended) and that action could have been brought against her estate after her death. (at p110)

8. The effect of s. 12 in these circumstances is to give the respondents a cause of action against their mother in respect of her negligence which resulted in the death of their father. But how does it create in them a cause of action against their father? (at p110)

9. At common law there is a presumption that a motor vehicle driven by the wife, is driven as agent for the owner-husband, particularly if he is a passenger in the vehicle: see Wiseman v. Harse (1948) 65 WN (NSW) 159, at p 160 ; Jennings v. Hannan (No.2) (1969) 71 SR (NSW) 226 and see Soblusky v. Egan (1960) 103 CLR 215, at p 231 . Agency may impose upon a husband a vicarious liability for the negligence of his wife which causes damage to a third party, but it is meaningless to speak of a liability imposed upon the husband to himself in respect of the damage which his wife has caused him. The liability which is vicariously imposed upon a husband is the liability of the wife to a third party, and we are unable to perceive how the wife's agency avails the respondent in this case. What s. 12 does is to confer a right of action in favour of the dependants against the person who would have been liable at the suit of the deceased bread-winner - in this case the mother. This is the only right of action which it confers. The section does not ignore vicarious liability. The section creates a cause of action against any person who, whether vicariously or not, would have been liable for damages to the deceased bread-winner. But the section does not permit a further application of the doctrine of vicarious liability so as to provide for a right of action against a person not identified by the statute itself as the person liable in the statutory cause of action. (at p111)

10. The respondents' case certainly stumbles at this hurdle. Does s. 4F(2) come to the rescue? In our opinion it does not. The essence of the statutory cause of action created by s. 4F(2) which imposes a liability on the Nominal Defendant is that there is a claim for damages in respect of accidental bodily injury caused in Queensland by an uninsured motor vehicle "for which the owner of such an uninsured vehicle would be legally liable" if the vehicle were insured under the Act. As we have seen, the deceased was not "legally liable" to his dependants in an action under s. 12. Nor would he be liable, if it be assumed in accordance with s. 4F(2), that the vehicle was insured. A contract of insurance under the Act would have indemnified the deceased as owner and his wife as driver against all sums for which either of them or their estates would be legally liable to pay by way of damages in respect of the use of the vehicle for accidental bodily injury (s. 3(1)) but the insurance, so far as it relates to the owner, is an indemnity against his legal liability to pay damages. (at p111)

11. The Full Court appears to have thought that the statutory presumption that the driver is the authorized agent of the owner (s. 3(2)) was significant in imposing vicariously upon the deceased the liability of his wife or her estate to the respondent. But sub-s. (2) does not speak in terms of liability; it speaks in terms of agency: Behrendorff v. Soblusky (1957) 98 CLR 619, at pp 622-623 . Certainly the effect of the provision would have been to make the deceased or his agent liable for the negligence of his wife in an action brought by a third party who suffered injury from her negligent driving. For the reasons already given in discussing the common law presumption of agency, the statutory agency does not touch the proposition that for the purposes of s. 12 the deceased did not have a cause of action against himself. His only cause of action would have been against the respondents' mother and her estate, and the liability of the mother's estate on that cause of action falls outside s. 4F(2). (at p111)

12. In the result we would allow the appeal and give judgment in demurrer for the appellant and dismiss the action. (at p111)

MURPHY J. The Nominal Defendant appeals from a unanimous holding by the Full Court of the Supreme Court of Queensland (Lucas A.C.J., Kelly and Sheahan JJ.) that (assuming negligence were proved) the Nominal Defendant was liable for the claim on behalf of the three plaintiffs for their father's death in a motor car accident. The father died when the car of which he was the registered owner collided with a semi-trailer. The car was not insured. At the time of his death the three plaintiffs were dependent upon the deceased for their maintenance. His wife (driver of the car) died in the same collision. The fact that his wife was driving does not affect the legal considerations which would be the same if the driver were not a relative. (at p112)

2. The Full Court held that the Nominal Defendant was liable under ss. 12 and 13 of the Common Law Practice Act 1867-1978 (Q.) and s. 4F(2) of the Motor Vehicles Insurance Act 1936-1979 (Q.) in that had the vehicle been insured at the material time, the deceased father, as owner, would have been vicariously liable and thus responsible in law for the negligence of the driver, which gave rise to the plaintiffs' claim for damages. Sections 12 and 13 of the Common Law Practice Act 1867-1978 (Q.) are in the pattern of Lord Campbell's Act; they provide a statutory remedy for loss by dependants upon death:

"12. Whensoever the death of a person shall be 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 . . . the person who would have been liable if death had not ensued shall be liable to an action for damages . . . .

13. Every such action shall be for the benefit of the wife husband parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased . . . " (at p112)

3. The Nominal Defendant argued that as it is liable only for damages for which the owner of the uninsured vehicle would be legally liable were the car insured at the material time (s. 4F(2) of the Motor Vehicles Insurance Act 1936-1979 (Q.)), and in the circumstances the deceased father could not be legally liable for the damages claimed in the action. (at p112)

4. In State Government Insurance Office (Q.) v. Crittenden (1966) 117 CLR 412 the State Government Insurance Office contended that consortium and dependants' claims were not covered by the compulsory insurance provisions in s. 3(1) of the Act which require the owner of the motor vehicle to have insurance which shall indemnify "the owner and all other persons against . . . all sums for which he or his estate or any such other person or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such other person, the owner himself) . . . where such injury is caused by . . . such motor vehicle". The State Government Insurance Office contended that the insurance protection is limited to damages for bodily injury, which is, of course, what s. 3(1) states when taken literally. This contention was rejected by the Full Court of the Supreme Court of Queensland (Hanger, Gibbs and Douglas JJ.) which in a judgment delivered by Gibbs J. rejected this "narrow and literal meaning" and held that the protection extended to claims for loss of consortium (and to dependants' claims for loss caused by death). In affirming that judgment this Court (McTiernan A.C.J., Taylor, Menzies and Windeyer JJ.) also adopted a broad construction in order to effectuate the Act's evident general purpose. Menzies J. put it in these terms (1966) 117 CLR, at p 420 :

"There is little doubt that compulsory third party insurance is intended broadly to afford protection to users of motor vehicles who become subject to liability because of bodily injury caused to others by the use of their motor vehicles, and to persons who become entitled to damages by reason of the bodily injury so caused."

and further stated (1966) 117 CLR, at p 421 :

"I do not think the section, which is intended to meet a well-recognized social and economic problem, should be construed so narrowly as to reduce it to but a partial solution of that problem and I do not accept the appellant's narrow construction of such a beneficial provision."

The other members of the Court recognized that to apply the text literally would defeat its purpose. Windeyer J. said: (1966) 117 CLR, at p 422 :

"The Act is not a model of drafting. But I do not think that its apparent remedial purpose should be defeated by a meticulous construction."

In dealing with similar New South Wales legislation the courts have also refused to give it a narrow operation: see Fawcett v. B.H.P. By-Products Pty. Ltd. (1960) 104 CLR 80, at p 92 ; also Andrews v. Nominal Defendant (1965) 66 SR (NSW) 85 . This approach to legislation is not rare or unusual. It is in a great judicial tradition. In the famous case of Cox v. Hakes (1890) 15 AC 506, at p 518 Lord Halsbury adopted it and cited with approval what he described as the often quoted passage from Stradling v. Morgan (1560) 1 Plowden 199, at p 205 (75 ER 305, at p 315) :

"From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion."

Thus Crittenden's Case (1966) 117 CLR 412 decided that the compulsory insurance cover extends to claims (such as for loss of consortium and by dependants) which were not in a strict literal sense for damages for bodily injury. From this it follows that the compulsory insurance was intended to cover dependants' claims in respect of the owner's death because s. 3(1) expressly provides for indemnity in respect of fatal injury caused by any other person "to the owner himself". Crittenden's Case is powerful authority that in the construction of this Act no strictly literal approach should be adopted to defeat the evident purpose of the Act that such claims will not depend on the uncertain resources of wrongdoers but will be met by the legislative scheme: see also Genders v. Government Insurance Office of N.S.W. (1959) 102 CLR 363, at p 389 . (at p114)

5. The children can claim against the mother or her estate under the Common Law Practice Act, s. 12, for damages in respect of fatal bodily injury to the father. Such action lies because the father could, if he had not died, have sued the driver (or her estate). If the vehicle were insured, the claim against the mother's estate would be covered by the policy because s. 3(1) of the Motor Vehicles Insurance Act provides that the contract of insurance indemnifies the owner and all other persons. However, the vehicle was not insured. For this circumstance, s. 4F(2) of the Act provides:

"Every claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connection with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable were it insured under this Act at the material time, may be made to The Nominal Defendant (Queensland) and any action to enforce any such claim may be brought against The Nominal Defendant (Queensland).

Any such claim may be so made and any such action may be so brought notwithstanding that the owner of the uninsured motor vehicle is dead. . . . " (my emphasis).

The plaintiffs then rely on the agency provisions in s. 3(2) "For the purposes of any such contract of insurance and of every claim for accidental bodily injury (fatal or non-fatal) to any person caused by . . . a motor vehicle insured thereunder, every person, other than the owner, . . . in charge of such motor vehicle . . . shall be deemed to be the authorised agent of the owner . . . acting . . . within the scope of his authority as such agent." They contend that these make the owner legally liable for the driver's negligence. (at p115)

6. Here the State Government Insurance Office submits that there is a fatal flaw. It says that the children can claim against the Nominal Defendant only if the owner would have been legally liable, but that this is impossible because such a claim depends upon showing that the father, had he not died, would have been entitled to maintain an action and recover damages in respect of his own bodily injury against the owner, and this leads to an impossibility. The father could not have sued himself, therefore there could not have been a claim by the children against the owner and therefore the owner is not "legally liable". This is the meticulous approach which was deprecated in Crittenden's Case. It might be overcome by treating the hypothetical action by the father as one in which he would be sued in a different capacity, that is owner, but this refinement is unnecessary. The evident purpose of the legislation is to ensure that an entitlement to damages arising under the general law, including a dependant's claim, should be met by the insurance policy, or if the vehicle is not insured, by the Nominal Defendant. As with the New South Wales legislation "the plan of the Act is to take the person who is or ought to be liable to the third party and provide for the insurance of the liability or, failing its insurance, for the creation of a substitutional liability in the nominal defendant": Genders v. Ajax Insurance Co. Ltd. (1950) 81 CLR 470, at p 481 . Just as in Crittenden's Case the words in s. 3(1) "for accidental bodily injury (fatal or non-fatal)" were given an extended meaning inconsistent with the strictly literal meaning, here the words "claim . . . for which the owner of such uninsured vehicle would be legally liable were it insured" should be given an extended meaning. The words cannot have been intended to be read literally; they must at least extend to claims against the owner's estate (mentioned in s. 3(1)). To give effect to the undoubted policy of the Act the words should be read as extending to those claims for which the owner (or his estate) and all other persons (and their estates) would be indemnified if the vehicle were insured in accordance with s. 3(1). On this interpretation the dilemma does not exist. In reaching this conclusion, I have taken into account the fact that there is a reference to the meaning of "owner" in s. 4F(1) but that this is not exhaustive; also that there is a reference in s. 4F(3A) to "owner or person in charge of the motor vehicle", and in s. 4G in relation to an uninsured vehicle to "owner . . . or some other person . . . driving the motor vehicle". These confirm that no meticulous construction should be adopted to defeat the general policy that all otherwise valid claims should be met either by the compulsory insurance policy or if the vehicle is uninsured then (except for the owner or any driver who did not believe on reasonable grounds that the vehicle was insured) by claims against the Nominal Defendant. (at p116)

7. The owner's omission to insure is punishable in that if he had lived, any action by him or, if he had died, by his estate, would not have been recoverable against the Nominal Defendant because it was entitled to recover against the owner (s. 4F). That is an understandable exception from the general policy. However, the Act does not require that the sins of the father be visited upon the children. Such a conclusion should be avoided. The right given to the children is a special statutory remedy separate from that which the father would have had, had he lived: Victorian Railways Commissioners v. Speed (1928) 40 CLR 434 . That case and many others show that courts have adopted a beneficial approach protective of dependants' remedies for the death of their provider. (at p116)

8. The Supreme Court of Queensland was correct in its conclusion. The appeal should be dismissed. (at p116)

WILSON J. This is an action brought by the next friend of the children of Allan Wilfred Taylor ("the deceased") who died as the result of a road accident on 14 April 1978. The action is brought pursuant to ss. 12 and 13 of the Common Law Practice Act 1867- 1978 (Q.), which represent the Queensland equivalent of Lord Campbell's Act. The statement of claim reveals that both the deceased and his wife were killed when the car in which they were travelling came into collision with a semi-trailer. It is alleged that the car was being driven by the wife, and that the collision was due to her negligence. The deceased was the owner of the car, which at the material time was not insured in a manner recognized by the Motor Vehicles Insurance Act 1936-1979 (Q.) ("the Act"). (at p116)

2. Section 12 of the Common Law Practice Act allows the dependants of a deceased person to bring an action against a wrongdoer when it can be shown that the death was caused by a wrongful act such as would have enabled "the party injured to maintain an action and recover damages". In this case, had the deceased lived, he could have sued the estate of his wife for damages for negligence: cf. s. 119, Family Law Act 1975 (Cth), as amended. It follows that his dependants can now bring a similar action, but unless the liability of her estate is indemnified by a policy of insurance there may be little or nothing to be gained by such a course. (at p117)

3. However, if the vehicle had been insured under the Act, her estate would have been entitled to such an indemnity in the present case. The contract of indemnity provided by the Act would cover the owner of an insured vehicle and all other persons against
" . . . all sums for which he or his estate or any such other person or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such other person, the owner himself) . . . " (s. 3(1)). (at p117)

4. So much is clear. Additionally, however, the Supreme Court thought that in circumstances such as the present, had the vehicle been insured, s. 3(2) of the Act would have applied so as to make the wife the statutory agent of the owner thus making the deceased liable for her acts of negligence. There is nothing untoward about such a conclusion so far as liability to third persons is concerned, but can it operate to render an owner liable to his own suit when he is the party who has been injured by the driver's negligence? The answer will be significant, having regard to s. 4F(2) of the Act relating to uninsured vehicles. The material parts of these two provisions read:

"3.(2) For the purposes of any such contract of insurance and of every claim for accidental bodily injury (fatal or non-fatal) to any person caused by, through, or in connection with a motor vehicle insured thereunder, every person, other than the owner, who at any time is in charge of such motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorised agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent: . . . 4F. (2) Every claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connection with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable were it insured at the material time, may be made to The Nominal Defendant (Queensland) and any action to enforce any such claim may be brought against The Nominal Defendant (Queensland). Any such claim may be so made and any such action may be so brought notwithstanding that the owner of the uninsured motor vehicle is dead. . . . "

In the Supreme Court, their Honours concluded that by reason of s. 3(2) the deceased would have been "legally liable" for his wife's negligence had the vehicle been insured at the material time, with the result that a claim could be made to The Nominal Defendant. (at p118)

5. But to apply s. 3(2) so as to create a statutory agency resulting in the owner of a vehicle being legally liable for damage caused to himself through the negligent driving of another person leads to a result which with respect appears to me to be quite irrational. The question must be asked: "To whom is he legally liable?" The only possible answer is that he is legally liable to himself, because it is in respect of his own injuries that he seeks to be compensated. The notion that a person should be held blameworthy to himself for his own sins may afford some philosophical satisfaction, but the law is not available as a means of personal penance or recompense. In my opinion s. 3(2) does not bring about such a result. The purpose of the provision is to ensure that the owner's contract of insurance in respect of his vehicle will be available for the benefit of third parties who suffer injury by reason of the negligence of a person in charge of the vehicle other than the owner. (at p118)

6. It must also be remembered that the present action is brought pursuant to s. 12 of the Common Law Practice Act. The material part of that section reads:

"Whensoever the death of a person shall be 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 who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured. . . . "

The effect of the section is to create in the dependants of a person who dies as the result of an actionable wrong a cause of action against the person who would have been liable to the deceased had he lived. The capacity of the respondents to sue pursuant to s. 12 must lie in the fact that their father died as the result of an actionable wrong, and their action lies against the wrongdoer who could have been sued by the father had he lived. Thus they could sue their mother's estate, and had the vehicle been insured its policy would have met their claim. But they cannot proceed for the purposes of s. 12 of the Common Law Practice Act on the premise that their father was the wrongdoer who caused his own death and therby gain a right to sue The Nominal Defendant under s. 4F(2) of the Act. To use the terminology of that provision the deceased was not an owner who would have been "legally liable" had his vehicle been insured. (at p119)

7. I would allow the appeal and uphold the demurrer. (at p119)

Orders

Appeal allowed with costs.

Decision of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order:

(1) That the demurrer be upheld. (2)That judgment be entered for the defendant in the action.

(3) That the plaintiffs pay the defendant's costs of the action, including the costs of the demurrer.