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The Nominal Defendant v Morrison, R

The Nominal Defendant v Morrison, R

Case [1992] FCA 603 20 August 1992

Negligence

Statutory Interpretation

Appeal

Tort Law

Administrative Law

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Re: THE NOMINAL DEFENDANT
And: RODNEY MORRISON
No. ACT G1 of 1992
FED No. 603
Number of pages - 23
Negligence - Australian Capital Territory
(1992) 37 FCR 479

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Miles(1), Ryan(2) and Gummow(2) JJ.

CATCHWORDS

Negligence - Road accident - Commonwealth employee injured by negligent driving by another Commonwealth employee of uninsured motor vehicle under hire to the Commonwealth - relationship between Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Compensation Act") and Motor Traffic Act 1936 (ACT) - whether plaintiff's claim against the Nominal Defendant a derivative of cause of action in tort such that ss 44 and 45 of the Compensation Act eliminate causes of action against the Commonwealth as employer and against fellow employee.

Australian Capital Territory - Australian Capital Territory (Self Government) Act 1988 - relationship between ordinances deemed enactments of the Legislative Assembly of the Territory and Federal laws such as the Compensation Act.

Commonwealth Employees' Rehabilitation and Compensation Act 1988

Australian Capital Territory (Self Government) Act 1988

Motor Traffic Act 1936 (ACT)

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)

Law Reform (Miscellaneous Provisions) Act 1955 (ACT)

Holloway v McFetters (1956) 94 CLR 470,

Nominal Defendant v Hook (1962) 113 CLR 641,

Parker v The Commonwealth of Australia (1984) 53 ACTR 11, considered.

HEARING

CANBERRA

#DATE 20:8:1992

Counsel for the appellant: Mr J. Poulos QC and Mr G. Lunney

Instructed by: Abbott Tout Russell Kennedy

Counsel for the respondent: Mr S. Wilcox

Instructed by: Snedden Hall and Gallop

ORDER

THE COURT ORDERS THAT:

(1) Leave to appeal be granted and the document filed 10 January 1992 as a Notice of Appeal stand as the Notice of Appeal.

(2) The appeal should be allowed and that in place of the answer given by the primary judge, the question posed by the special case be answered "no".

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

MILES J. The background of this matter and the relevant legislation are set out in the joint judgment of Ryan and Gummow JJ., a draft of which I have had the advantage of reading. In addition to the legislative provisions referred to in the joint judgment I would refer to s.48 of the Compensation Act which provides that where a Commonwealth employee recovers damages for an injury which is compensable under the Compensation Act, compensation is not payable after the date on which the damages are recovered. Section 48 assumes that a Commonwealth employee who suffers a work-related injury may claim damages from a third party such as a manufacturer of equipment or the driver of a vehicle.

I would not grant leave to appeal, nor if leave were granted would I allow the appeal.
On the question of leave, the correctness of the decision of the Supreme Court is not sufficiently attended by doubt to justify the granting of leave. The attack…

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.

Continue reading The Nominal Defendant v Morrison, R

Details

AGLC: The Nominal Defendant v Morrison, R. [1992] FCA 603 ((1992) 37 FCR 479)
Case: [1992] FCA 603
Decision Date: 20 AUGUST 1992

CaseChat Overview and Summary

The Nominal Defendant, a Commonwealth entity, faced a claim by a Commonwealth employee who was injured in a road accident caused by another Commonwealth employee driving an uninsured vehicle. The injured party sought damages for negligence. The case, The Nominal Defendant v Morrison, was heard by the High Court of Australia, which had to determine the legal implications of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 and the Motor Traffic Act 1936 (ACT) in this context.

The central issue was whether the injured employee's claim against the Nominal Defendant was derivative of a tort claim, thus potentially barred by sections 44 and 45 of the Compensation Act. These sections prevent claims against the Commonwealth as an employer and against fellow employees. The court had to decide if the injured employee could still seek damages for the negligent act of another Commonwealth employee, despite the statutory scheme intended to provide exclusive compensation for work-related injuries.

The High Court concluded that the claim was not barred by the statutory provisions. The court reasoned that the Compensation Act was not intended to provide a complete bar to common law claims for negligence in all circumstances. The injured employee's claim was not derivative in the sense that it was not merely a restatement of the employer's liability but was instead an independent claim for damages for the tortious act of another. As such, the injured employee could pursue a common law action against the negligent party. The court also found that the injured party could pursue a claim against the Nominal Defendant under the statutory scheme for any relevant compensation.

The court granted leave to appeal, allowed the appeal, and answered the special case question "no", indicating that the injured employee's claim was not barred by the Compensation Act. The final orders included formalising the appeal and answering the special case question in the negative, allowing the injured party to pursue their claim for damages against the negligent employee.

Orders

Orders of the court

THE COURT ORDERS THAT:

(1) Leave to appeal be granted and the document filed 10 January 1992 as a Notice of Appeal stand as the Notice of Appeal.

(2) The appeal should be allowed and that in place of the answer given by the primary judge, the question posed by the special case be answered "no".

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

The Nominal Defendant v Morrison, R. [1992] FCA 603 ((1992) 37 FCR 479)

Most Recent Citation

Austereo Limited v. Trade Practices Commission [1993] FCA 429 ((1993) 115 ALR 14; (1993) 41 FCR 1)

Cases citing this decision · 2 of 2 shown

Australian Liquor Hospitality and Miscellaneous Workers Union v The Uniting Church in Australia (ACT) Property Trust t/as Mirrinjani Retirement Village
[1998] FCA 474

…I merely note in passing that the Full Court of this court in Nominal Defendant v Morrison (1992) 37 FCR 479 at 483 noted that this provision, dealing as it does with inconsistency between Commonwealth and ACT laws, “adds a further dimension to the operation of contrariety in our legal system”. For reasons I later g…
Austereo Ltd v Trade Practices Commission
[1993] FCA 429

…rious levels and in various senses: Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 544-548, Nominal Defendant v Morrison (1992) 37 FCR 479 at 483-4.…

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Cases cited in this decision · 14 of 14 shown

Parker v Commonwealth of Australia
[2011] FCA 1029

…hat an action under s.85 against the nominal defendant would relevantly be "a claim in respect of that damage" for the purposes of s.15. Likewise, in Parker v Commonwealth of Australia (1984) 53 ACTR 11, Blackburn C.J. held that the nominal defendant was included in the denotation of the phrase "any other tort-feasor" in sub-s.11(4) of the…
Suatu Holdings Pty Ltd v Australian Postal Corporation
[1989] FCA 88

…t to s.109 of the Constitution, and (c) between different laws of the one legislature. See Suatu Holdings Pty Limited v Australian Postal Corporation (1989) 86 ALR 532 at 546-7. The coming of self-government to the Territory adds a further dimension to the operation of contrariety in our legal system.…
Breavington v Godleman
[1988] HCA 40

…The legislative source of the exposure of the Commonwealth to tortious liability has been described by Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 117-8 as a "vexed question", even after The Commonwealth v Evans Deakin Industries Limited (1986) 161 CLR 254. However, irrespective of whence the liability…
Chamberlain v Deputy Commissioner of Taxation
[1988] HCA 21

…o obtain judgment. (See e.g. Cooke v Gill (1873) LR 8 CP 106 at 116, Read v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at 25 Lord Wright said of a cause of action in negligence:-…
British American Tobacco Australia Ltd v Western Australia
[1986] HCA 51

…y Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 117-8 as a "vexed question", even after The Commonwealth v Evans Deakin Industries Limited (1986) 161 CLR 254. However, irrespective of whence the liability arises, it is clear that for the purposes of the present case, it carries with it the abolition by s.2…
Parker v The Commonwealth
[1965] HCA 12

…Parker v The Commonwealth of Australia (1984) 53 ACTR 11, considered.…
Nominal Defendant v Hook
[1962] HCA 50

…Nominal Defendant v Hook (1962) 113 CLR 641,…
Holloway v McFeeters
[1956] HCA 25

…Holloway v McFetters (1956) 94 CLR 470,…
McMullan v Lochgelly Iron and Coal Co
[1933] UKHL 4

…Gill (1873) LR 8 CP 106 at 116, Read v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at 25 Lord Wright said of a cause of action in negligence:-…
(1888) 22 QBD 128
(1888) 22 QBD 128

…sts of all those facts which, if traversed, a plaintiff must prove to obtain judgment. (See e.g. Cooke v Gill (1873) LR 8 CP 106 at 116, Read v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at 25 Lord Wri…
Dyer v Munday
(1895) 1 QB 742

…entitled to sue the other for a tort, that the employer was liable for the tort committed by the employee husband against the wife. In Dyer v. Munday (1895) 1 QB 742 (C.A.) an employee committed an assault in the course of his employment and was convicted and fined. It was held that although the conviction raised…
Read v Brown
122 ER 608

…action consists of all those facts which, if traversed, a plaintiff must prove to obtain judgment. (See e.g. Cooke v Gill (1873) LR 8 CP 106 at 116, Read v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at…
The author cites two cases In Broom v Morgan
(1952) 1 QB 597

…the employee, so long as the procedural bar "does not enure" to the advantage of the employer (p 525). The author cites two cases. In Broom v. Morgan (1952) 1 QB 597 (C.A.), the Court of Appeal decided, at a time when no husband or wife was entitled to sue the other for a tort, that the employer was liable for the…
Thus in Lochgelly Iron and Coal Co v McMullan
(1934) AC1

…v Brown (1888) 22 QBD 128 and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508). Thus in Lochgelly Iron and Coal Co v McMullan (1934) AC1 at 25 Lord Wright said of a cause of action in negligence:-…

Legislation cited in this decision · 10

Australian Capital Territory (Self-Government) Act 1988 (Cth)
1 mention
Campbell v Backoffice Investments Pty Ltd
1 mention
Colonial Laws Validity Act 1865 c.63
1 mention
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)
1 mention
Law Reform (Miscellaneous Provisions) Act 1955 (ACT)
1 mention
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)
1 mention
Motor Car Act 1951 (Vic)
1 mention
Motor Traffic Act 1936 (ACT)
1 mention
Motor Traffic Ordinance 1936 (ACT)
1 mention
Seat of Government (Administration) Act 1910 (Cth)
1 mention