Robert Botterill v Kathleen Lane

[2005] ACTCA 39

ROBERT BOTTERILL v KATHLEEN LANE [2005] ACTCA 39 (11 NOVEMBER 2005)

EX TEMPORE JUDGMENT

VEHICLES AND TRAFFIC – road accident cases – actions for negligence – statutory requirement for notice of “claim” – action for damages against defendant – defendant covered by insurance policy – authorised insurer notified outside time limit – requirement for notice applicable only to claim directly against an authorised insurer - Road Transport (General) Act 1999 (ACT), ss 158, 190.

Road Transport (General) Act 1999 (ACT), s 158, s 190
Civil Law (Wrongs) Act 2000 (ACT), s 54

Legislation Act 2001 (ACT), s 138

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA  26-2005
No. SC 161 of  2005

Judges:         Gray, Connolly and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            11 November 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA  26-2005 
  )          No. SC 161 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROBERT BOTTERILL

Appellant

AND: KATHLEEN LANE

Respondent

ORDER

Judges:  Gray, Connolly & Marshall JJ
Date:  11 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA  26-2005
  )          No. SC 161 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROBERT BOTTERILL

Appellant

AND: KATHLEEN LANE

Respondent

Judges:  Gray, Connolly & Marshall JJ
Date:  11 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. By notice of motion, the plaintiff (the respondent in this appeal) sought a declaration from this court that:

In the circumstances described in the affidavit of Peta Jane Piper sworn 23 March 2005 the plaintiff is not required to give written notice to the defendant’s authorised insurer pursuant to s 190 of the Road Transport (General) Act 1999 (ACT) as a condition precedent to commencing proceedings against the defendant for damages for personal injuries suffered in a motor vehicle accident on 9 May 2000.

1. The primary judge, Crispin J, made a declaration in those terms and the defendant (the appellant) now seeks to appeal to have the declaration set aside and a declaration to the contrary effect made. 

1. The plaintiff was injured in a motor vehicle accident involving the defendant’s vehicle on 9 May 2000. NRMA Insurance Limited (NRMA) was the defendant’s third party compulsory insurer and an authorised insurer pursuant to s 158 of the Road Transport (General) Act 1999 (ACT). On 1 October 2004 the plaintiff, by solicitors acting for Comcare, her workers compensation insurer, served a notice of claim in respect of her injuries on NRMA. NRMA initially accepted the notice as a complying notice of claim pursuant to s 54(2) of the Civil Law (Wrongs) Act 2000 (ACT). That notification accepted that the claim was within the time required by that section. However, on 4 February 2005, the solicitors for the defendant notified the plaintiff that NRMA did not consent to extend the time allowed to make a claim with the authorised insurer under s 190 of the Road Transport (General) Act 1999 (ACT) and requested an adequate explanation for the late lodgement of the claim.

1. Section 190(1) of the Road Transport (General) Act 1999 (ACT) provides:

Action to enforce a claim against an authorised insurer may be taken only if the claimant gives written notice of intention to make a claim to the insurer within 3 months after the motor accident.

‘Claim’ is defined in s 158 as meaning, “a claim for damages in relation to the death of, or bodily injury to, a person caused by, or arising out of the use of, a motor vehicle”. It was submitted by the appellant, both before this court and before the primary judge, that the “claim” in s 190 referred not only to the claims that might be made against an authorised insurer as authorised insurer pursuant to s 197 of the Road Transport (General) Act, but to all matters referrable to motor vehicle claims regardless of whether the claim was directed to persons other than the authorised insurer.  There are, of course, provisions in s 189 and s 192 of the Road Transport (General) Act for notice of accidents and claims to be given to the authorised insurer in relation to vehicles which concern the authorised insurer. There is no reason why it should be thought that the notice provision in s 190 is not confined to the circumstance of actions against an authorised insurer directly which is the circumstance that s 197 deals with.

1. The appellant’s argument, both before this court and before the primary judge, sought to invoke the provisions of the Legislation Act 2001 (ACT) as an aid to interpretation. The provisions in that Act in respect of working out the meaning of an Act are directed to:

(a)resolving an ambiguous or obscure provision of the Act;  or

(b)confirming or displacing the apparent meaning of the Act;  or

(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable;  or

(d)finding the meaning of the Act in any other case.

1. As Mr Crowe SC, counsel for the respondent, puts his written submissions, there is simply no warrant for reading anything into s 190 beyond the plain meaning of the words used. This is not a case which requires the finding of a meaning other than the plain import of the words used. In any event, recourse to other materials to ascertain the meaning of the provision leads inevitably to the conclusion to which the primary judge arrived. The appellant’s submissions that the Act read as a whole and that the objects of the Act support the interpretation that the appellant contends for, must be rejected as having no substance.

1. Further, the submissions which the appellant puts in this matter are those which were put to the primary judge and rightly rejected by him.  There is no reason for us to doubt the approach and analysis of the legislation that the primary judge undertook.  For the reasons that Crispin J gave, we are of the view that he correctly interpreted the legislation.  The appeal is dismissed with costs.

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:      14 November 2005

Counsel for the Appellant:  Mr M A Elkaim SC with Mr K Andronos
Solicitor for the Appellant:  Hunt & Hunt
Counsel for the Respondent:  Mr R Crowe SC
Solicitor for the Respondent:  Australian Government Solicitor
Date of hearing:  11 November 2005
Date of judgment:  11 November 2005