Walker v Floyd & FAI

[1996] QSC 246

IN THE SUPREME COURT
OF QUEENSLAND

No.2429  of 1995

Brisbane

Before the Hon. Justice Mackenzie

[Walker v Floyd & FAI]

BETWEEN:

PETER JAMES WALKER  
  Plaintiff
AND:  
  ANGELA KAREN LOUISE FLOYD  
  First Defendant

AND  

FAI GENERAL INSURANCE COMPANY

Second Defendant

JUDGMENT - MACKENZIE J.

Judgment delivered 6 December 1996

CATCHWORDS: PERSONAL INJURIES - Liability admitted pursuant to Motor Accident Insurance Act 1994, s41 (1)(b) - quantum disputed - whether judgment for damages to be assessed should be entered - whether the matter should be remitted to the District Court for the assessment of damages.

Counsel:C Newton for the plaintiff. 

J Clifford QC for the first and second defendants.                  

Solicitors:                Carter Capner for the plaintiff.
  McInnes Wilson and Jensen for the first and second defendants.

Hearing date: 25 November 1996

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No. 2429 of 1995

Before the Hon. Mr Justice Mackenzie

[Walker v. Floyd & FAI]

BETWEEN:

PETER JAMES WALKER
  Plaintiff
AND:

ANGELA KAREN LOUISE FLOYD
  First Defendant

AND:
  FAI GENERAL INSURANCE COMPANY LIMITED
  Second Defendant

JUDGMENT -  MACKENZIE J.

Judgment Delivered 6 December 1996

The plaintiff has sought judgment for damages for personal injuries to be assessed.  The joint defence of the first and second defendants includes admissions of the facts of the collision alleged by the plaintiff, that the collision was caused by the negligence of the first defendant and that the plaintiff suffered personal injuries and other loss and damage.  The alleged extent of the injuries and the economic and other effects of the accident are denied.  The application is based on Order 36 rule 5.  It was common ground that there is a discretion whether or not to enter judgment.  Order 36 rule 5 has been the subject of considered decisions in a number of cases at first instance in actions for personal injuries.  Judgment has been granted although there have been some misgivings in later decisions (see Kitching v. Milliquin Sugar Co Pty Ltd, 186 of 1987, Ambrose J., unreported, 22 November 1990; Macfadzean v. Suncorp Insurance & Finance O.S. No. 806 of 1994, Fryberg J., unreported, 4 October 1994; Sherman v. Hoffman 1392 of 1992, White J., unreported, 6 February 1995.).  I was invited to depart from this practice which is now of long standing, but for that reason, I do not propose to do so. 
          It was submitted that an admission of negligence and damage was not an admission of fact but a question of mixed fact and law.  More importantly it was submitted that the requirements of the Motor Accident Insurance Act1994 requiring the insurer to notify whether liability is admitted or denied (s.41(1)(b)) reduced the capacity of third party insurers to deny liability, with certain procedural consequences.  It was submitted that if the matter were to be heard as an assessment:-

(a) the plaintiff would not be obliged as a matter of course to provide or update a Statement of Loss and Damage;

(b)there is no provision for a certificate of readiness with the result that the action may be attempted to be brought on before the defendant is ready and without the defendant having sufficient information to make an informed offer to settle;

(c)there is no provision for interlocutory steps; and

(d)If in the Supreme Court, the matter would go on the assessment list  and be able to take advantage of the practice of giving such matters priority. 

From the theoretical point of view the matter mentioned in para.(d) is not inconsistent with the object in s.3(c) of the Motor Accident Insurance Act of encouraging the speedy resolution of personal injury claims resulting from motor vehicle accidents.  Further, in the present case as an Order 39 rule 29A statement has been supplied as well as a statement of expert and economic evidence one of the other difficulties is partly academic.  The directions asked for in the draft order, although not in the summons, include remitter to the District Court, a requirement for a Certificate of Readiness and updating of the Statement of Loss and Damage.
          With regard to the other concerns of the respondent, it is highly desirable that there be an adequate interchange of information to enable the basis for resolving the claim to be explored.  Division 4 of Part 4 of the Act already provides for reciprocal duties of cooperation between insurer and claimant.  However procedural steps such as interrogatories and discovery are not replicated in Division 4.  If matters are to be dealt with by way of judgment upon admission of liability and if upon such an application, a request for other orders to ensure adequate exchange of information has to be made, there will presumably be some increase in costs for the parties.  Order 36 rule 5 gives the court a wide power upon an application for judgment to make such order or give such judgment as may be just.  It has been assumed in this case that the power extends to making the orders relating to interlocutory steps which have been requested.  Because of the settled interpretation that Order 36 rule 5 allows judgment upon the insurer's admission of liability, attention might be given to setting in place a requirement that the procedures which would ordinarily apply in a motor vehicle accident case where there was no admission of liability should be complied with even in the absence of agreement between the parties and without the need to have a specific order made.  A requirement for a certificate of readiness in such cases would complement those provisions and prevent cases being listed prematurely.
          The terms of the order sought include an order that the matter be remitted to the District Court for assessment of damages.  This was opposed by Mr Clifford who submitted that the matter should remain in the Supreme Court.  The application was based on Order 39 rule 52(1).  Mr Newton submitted that it had been the practice of the court in this kind of case to remit to the District Court.  Order 39 rule 52 makes it plain that provision as to how the damages may be assessed may be made in the judgment.  I am not persuaded that the matter should be remitted to the District Court.  Accordingly the orders are the following:-

1.Judgment is entered in the action against the second defendant for damages to be assessed;

2.the assessment be made by a Judge of the Supreme Court;

3.the action shall not be placed on the callover list until the parties have executed and filed a Certificate of Readiness for Trial;

4.the plaintiff will at all times comply with Division 3A of Order 39 in relation to the updating of the plaintiff's Statement of Loss and Damage;

5.the costs of and incidental to the application are the parties' costs in the cause.