Robert Crispino v Susanne Elizabeth Burns

[2007] ACTCA 7

ROBERT CRISPINO v SUSANNE ELIZABETH BURNS
[2007] ACTCA 7 (18 April 2007)

PRACTICE AND PROCEDURE – Civil Law (Wrongs) Act 2002 – claimant required to give notice of claim – whether worker’s compensation insurer exercising subrogated rights.
APPEAL – interlocutory ruling.

Limitation Act1985

Civil Law (Wrongs) Act 2002, ss 51, 225 (repealed), 49

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 50

Esso Petroleum Ltd v Hall Russell and Co [1988] 2 AC 643

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

No. ACTCA 32 - 2006
No. SC 654 of 2005

Judges:   Higgins CJ, Connolly and Tamberlin JJ           
Court of Appeal of the Australian Capital Territory
Date:            18 April 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 32 - 2006 
  )          No. SC 654 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 CRISPINO  

Appellant

AND: SUSANNE ELIZABETH BURNS

Respondent

ORDER

Judges:  Higgins CJ, Connolly and Tamberlin JJ
Date:  18 April 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 32 - 2006
  )          No. SC 654 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 CRISPINO

Appellant

AND: SUSANNE ELIZABETH BURNS

Respondent

Judges:  Higgins CJ, Connolly and Tamberlin JJ
Date:  18 April 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from an interlocutory judgment of Gray J who, on 25 July 2006, dismissed an application to strike out a plaintiff’s statement of claim in a motor vehicle personal injury claim.  The claim was brought in the name of Susanne Elizabeth Burns (the plaintiff/respondent), and was in the normal form for a motor vehicle personal injury claim, alleging damages sustained as a result of the negligence of Robert Crispino (the defendant/appellant) who, it was claimed, was the driver of a motor vehicle which struck the plaintiff when she was a pedestrian at Greenway in the Australian Capital Territory on 13 June 2003.

1. The claim was brought by way of originating application filed on 16 September 2005.  While this was clearly within the limitation period prescribed by the Limitation Act1985, the defendant argued that the claim could not be brought because the claimant had failed to notify the insurer of the proposed claim in accordance with s 51 of the Civil Law (Wrongs) Act 2002 (the Civil Law (Wrongs) Act). When these provisions were enacted, transitional provisions in s 225 of the Civil Law (Wrongs) Act provided that s 51 did not apply to a claim if, before 8 March 2004, being the date upon which s 51 commenced, the claimant had consulted a lawyer to obtain advice about seeking damages for personal injury.

1. On the agreed facts in this case, the plaintiff had consulted a solicitor in November 2003.  She was at the time of her accident a Commonwealth public servant on a lunch break and, accordingly, she was entitled to certain benefits from Comcare pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Safety, Rehabilitation and Compensation Act). She was in receipt of these benefits, which covered medical expenses and income loss, and she decided not to commence a common law claim in November 2003. The agreed facts state that, some time after 8 March 2004, Comcare instructed its lawyer to commence a claim pursuant to s 50 of the Safety Rehabilitation and Compensation Act, which provides that, where a benefit has been paid to an employee in respect of an injury that occurred in circumstances that appear to create a legal liability in a person to pay damages, Comcare may make a claim against that person in the name of the employee, or take over an existing claim.

1. The question on this appeal is whether, in such circumstances, “the claimant” for the purposes of s 51 of the Civil Law (Wrongs) Act is the named plaintiff or Comcare. In his decision of 25 July 2006, Gray J held that the named plaintiff in the originating application “remains the claimant notwithstanding that this action is brought in her name by Comcare pursuant to s 50 of the Safety Rehabilitation and Compensation Act, and the provision for notice of claim to be given for which s 51(1) of the Civil Law (Wrongs) Act provides does not apply to her” (AB17, [20]).

1. Leave to appeal from this interlocutory decision was granted on 2 November 2006, and the matter came on for hearing on 22 February 2007.  Notwithstanding the benefit we have had of extensive written and oral submissions in this matter, we are, nevertheless, unable to find error in his Honour’s reasoning.  It seems to us that his Honour’s reasoning is correct.

1. The appellant’s argument is that, because s 50(10) of the Safety, Rehabilitation and Compensation Act provides that Comcare may “make a claim or a fresh claim against the person in the name of the employee”, it follows that Comcare is the “claimant” for the purposes of the Civil Law (Wrongs) Act. The difficulty with this argument, however, is that, in determining the effect of s 51 of the Civil Law (Wrongs) Act, it is the definition of “claimant” contained within that Act that must be considered. Section 49 provides that “Claimant means a person by whom, or on whose behalf, a claim is made”. The claim for damages is vested at all times in the employee in the absence of any assignment.

1. The respondent’s argument is that s 50 of the Safety, Rehabilitation and Compensation Act does not create a separate statutory cause of action, but rather provides, as his Honour found, a mechanism which allows Comcare to stand in the shoes of the injured employee and bring an action which must by virtue of s 50(4)-(7) of the Act be in the name of the injured employee. If this action is settled or decided and results in an award of damages greater than the compensation paid by Comcare, the balance must be provided to the injured worker. This demonstrates that Comcare’s claim is not co-extensive with the claim of the worker.

1. His Honour held (at [15]-[16]) that:

I see no justification either in principle or from any words used in the provision to attribute a wider effect than that, in circumstances where compensation has been paid to an employee under the Act, Comcare is given the right to bring an action in the name of that employee. In my view, such a circumstance does not make the claim, so made, a claim by Comcare for the purposes of s 51 of the Civil Law (Wrongs) Act. Workers compensation legislation in Australia has generally adopted the approach of either requiring a person liable for damages for injury to the employee to indemnify the provider or, alternatively, to recognise that the compensation provider has right of subrogation in respect of the employee’s claim against the person liable for damages. WorkCover Queensland v Seltsam Pty Ltd [2001] NSWCA 457 concerned an amendment to the Queensland legislation which supplemented the indemnity provision, that the legislation had previously contained, with a subrogation provision. Previous decisions had recognised that the legislative granting of a statutory right of indemnity permitted a workers compensation authority to sue in its own name (eg Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, Victorian Workcover Authority v Esso Australia Ltd (2001) 75 ALJR 1513 at 1516-1517). Young CJ in Eq with whom Priestly JA and Ipp AJA agreed, commented that it was hard to see how a right of subrogation could be regarded as ancillary to an indemnity and that:

The right of subrogation requires suing in the name of someone else and thus it is a lesser right in many respects than an indemnity.  (See at [25] supra)

It seems to me that the provisions contained in the other subsections of s 50 of the Safety Rehabilitation and Compensation Act indicate that Comcare does not completely subsume the claim or take an assignment of it but rather the effect of the section read as a whole gives Comcare a statutory right of subrogation which is not a separate action able to be brought in Comcare’s name such as a claim for indemnity might be.

1. It seems to us that his Honour was correct in holding that, notwithstanding the statutory form of the right given to Comcare to commence an action in the respondent’s name, which his Honour conveniently described as a form of statutory subrogation, the respondent remained a “claimant” for the purposes of the Civil Law (Wrongs) Act. In written submissions Mr Crowe SC, for the respondent, made the point that, on the alternative view, it would be necessary for Comcare to make a fresh notification pursuant to s 51 of the Civil Law (Wrongs) Act in circumstances where the respondent, as an injured employee, herself decided to make a claim but Comcare, exercising its statutory right under s 50 of the Safety, Rehabilitation and Compensation Act, decided to take over such a claim before it was filed, or indeed to take over the claim at any time. Little point would be served by holding that a person in the position of the respondent ceased to be a claimant the moment Comcare made a decision to intervene in the matter. To the extent that the legislative purpose of the notice requirement in s 51 is apparent, it is to put the motor vehicle insurer on notice that a claim is to be brought, and, it seems to us, that purpose must be said to be achieved when the injured person gives notice of intention to make a claim, even if the running of that injured person’s claim is in the hands of Comcare, or indeed another private insurer pursuant to a form of contractual subrogation.

1. Mr Crowe’s submission is further supported by the approach taken by the House of Lords in Esso Petroleum Ltd v Hall Russell and Co [1988] 2 AC 643, 662-3.

1. The appeal should be dismissed with costs.

   I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:     18 April 2007

Counsel for the Appellant:  Mr MA Elkaim SC with Mr W Fitzsimmons
Solicitor for the Appellant:  Moray & Agnew
Counsel for the Respondent:  Mr R Crowe SC
Solicitor for the Respondent:  Australian Government Solicitor
Date of hearing:  22 February 2007
Date of judgment:  18 April 2007