Wealand v Insurance Commission of Western Australia
[2006] WADC 88
•21 JUNE 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WEALAND -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2006] WADC 88
CORAM: CRISFORD DCJ
HEARD: 25 MAY 2005
DELIVERED : 21 JUNE 2006
FILE NO/S: CIV 235 of 2005
BETWEEN: KRISTOPHER SHAE WEALAND
Appellant (Plaintiff)
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Respondent (Defendant)
Catchwords:
Practice and procedure - Judgment on admission - Whether "admission" made
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 12
Rules of the Supreme Court,O 30 r 3
Result:
Both appeals dismissed
Representation:
Counsel:
Appellant (Plaintiff) : Mr M J Feutrill
Respondent (Defendant) : Mr M A McAuliffe
Solicitors:
Appellant (Plaintiff) : Bradley & Bayly
Respondent (Defendant) : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hutton v Meston [2004] WASCA 178
Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; BC9802349
Case(s) also cited:
Commonwealth v Verwayen (1990) 170 CLR 394
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Gale v Superdrug Stores PLC [1996] 1 WLR 1089
Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34
Re Registered Trade Mark "Certina" (1970) 44 ALJR 191
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
CRISFORD DCJ: This appeal is from orders made by Deputy Registrar Harman on 1 November 2005. The Deputy Registrar had before him two separate chamber summons. Firstly, by summons filed 5 August 2005 the defendant sought to amend its defence and have the plaintiff answer interrogatories. Secondly, by summons filed 19 August 2005 the plaintiff sought judgment pursuant to O 30 r 3 of the Rules of the Supreme Court.
The plaintiff's application was dismissed. The defendant was successful in its application. The defendant was awarded costs in relation to both matters. The plaintiff appeals both matters.
The appeals before the Court are in the nature of hearings de novo. An appellant does not have to demonstrate some error in the exercise of discretion or some error of judgment on a matter of fact or law. The matter is simply argued afresh as if for the first time: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
Facts
On 7 June 2003 the plaintiff ("Wealand") was a passenger in a valiant sedan which was being driven in an easterly direction on Underwood Avenue Floreat by Patrick Maurer ("the deceased insured"). The deceased insured failed to negotiate a right hand bend and the sedan collided with a tree. Wealand suffered extensive injuries.
Wealand says an admission of liability was made by the defendant ("the commission") on behalf of the deceased insured in correspondence to his solicitors, Bradley & Bayly, on 12 July 2004.
Relevantly, that letters states:
"Negligence of the defendant will not be denied subject to the following qualifications: (which are not of concern here)
(a)…
(b)… ."
Wealand says that this correspondence needs to be placed in context. There was earlier correspondence of 29 June 2004 from the commission to Wealand stating:
"We wish to advise that our investigations in the circumstance (sic) of the above crash are now complete. It is our intention to proceed with your claim on a "without prejudice and without admission of liability" basis paying 100% of your claim."
Over a week later, on 8 July 2004 Bradley & Bayly sent a letter to the commission:
"Our client is claiming damages from the State Government Insurance Commission's insured driver in respect of his injury. We would be most grateful if you would investigate the circumstances of this accident and advise as to your attitude towards liability in due course."
Thereafter the letter of 12 July 2004 was received by Wealand's solicitors.
Since 29 June 2004 the commission has paid 100 per cent of Wealand's accident related medical and rehabilitation expenses.
Wealand commenced legal proceedings on 8 February 2005. A defence was filed on 23 March 2005. In that defence the commission denied any negligence on the part of its insured. Thereafter, in August 2005 the two chambers summons the subject of this appeal were filed.
In order to determine this matter it is necessary to consider the import of the correspondence of 12 July 2004.
Was an admission made?
Order 30 of the Rules of the Supreme Court cover admissions. Order 30, relevantly here, states:
"1.Without prejudice to O 20 r 14, any party to a cause or matter may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.
2.…
3.(1) Where admissions of the fact have been made on the pleadings or otherwise, any party may at any stage of the cause or matter, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may on such application make such order or give such judgment as the Court thinks fit.
(2)…"
An admission is simply an acknowledgment or concession. It is common ground the correspondence of 12 July 2004 is an acknowledgment or concession that the insured driver was negligent.
Simply put, Wealand's position is that an unambiguous admission of liability has been made by the commission and that judgment pursuant to O 30 r 3 should therefore be entered in relation to that issue and the matter proceed solely on an assessment of the damages to be paid to him.
Alternatively, he says the admission contained in the correspondence between the parties induced him to assume that liability was not in issue and the commission is now estopped from suggesting otherwise. Further, he forbore from taking action to investigate the circumstances of the accident and this constitutes consideration in the contractual sense. Finally, as a matter of general discretion, the Court should not allow any amendments to the defence.
The commission's position is that no admission capable of invoking O 30 r 3 was ever made. This is not a case where a defendant is seeking to withdraw an admission made inadvertently or through error. It is an admission in part and does not lay to rest the whole issue of liability.
The Full Court of Western Australia has remarked in passing on the terms of a similar letter in the context of a defendant subsequently denying negligence generally. Her Honour Wheeler J (as her Honour then was) in Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; BC9802349; 1 May 1998 commented as follows:
"It may well be that a statutory insurer is the appropriate person to make an admission on behalf of the insured: Nominal Defendant v Hook (1962) 113 CLR 641. However, while the expression negligence 'will not be denied' may be capable of constituting an admission, depending upon the context, it may equally be seen as a statement made, without necessarily any admission of liability, in respect of the way in which the insurer proposes to deal with the claim. Even if it were to be regarded as an admission, its weight would be a matter for her Honour, and it is to be noted that the SGIO apparently changed its view at an early stage in the dealings between the parties. In those circumstances, her Honour was not obliged to view the letter as conclusive, or even of any great weight, in relation to the question of liability."
More precisely stated the question for this Court is whether the correspondence from the commission to Wealand or his solicitors, given all the surrounding circumstances, was such as to make a complete acknowledgment of its liability to Wealand. The answer to this, it seems, will resolve all the various positions advanced by Wealand.
The commission accepts that the correspondence of 12 July, 2004 constitutes an admission insofar as it relates to the driving of its insured. It says that the correspondence relates to the deceased insured and not the commission.
However, in the circumstances of this case, it pleads that Wealand as a passenger in the motor vehicle voluntarily assumed the risk in so doing or at least by his own actions contributed to his injuries. Whilst not resiling from the deceased insured's negligence the commission says it is open to it to put forward the "positive defences" of voluntary assumption of risk and contributory negligence.
The commission, at the time of filing its original defence on 23 March 2005, made its position quite clear. There was a blanket denial of the deceased insured negligence. That defence is inconsistent with the admission made.
In order to ascertain whether Wealand's interpretation is correct it is important to consider generally all the circumstances in which the "admission" was made. It is also necessary to consider the significance of what was acknowledged and the time lapse before which any alleged misinterpretation became known. Consideration needs to be given to any prejudice that is likely to be suffered by Wealand as a result.
Whilst not completely on point as to what constitutes an admission is Hutton v Meston [2004] WASCA 178. That case can be distinguished on the facts. However, McLure J (as her Honour then was), with whom Murray and Templeman JJ agreed, considered the approach to be taken in an application to amend a pleading where the amendment involves the attempt to withdraw an admission. Her Honour observed that relevant considerations in the exercise of the discretion are determined by the governing principle of the attainment of justice. It appears to me that the attainment of justice is the appropriate consideration when construing the effect of the correspondence of 12 July 2004.
The awarding of judgment on the basis of the correspondence of 12 July 2004 effectively precludes the defendant from putting forward any defences its insured may have in relation to liability. It is not possible to ascertain the true facts on the documentation presently before the Court. However, some witness statements available suggest that for over a 6 hour period on the day of and prior to the accident, the deceased insured and Wealand were at a hotel and drink was taken.
The commission has paid 100 per cent of Wealand's accident related medical and rehabilitation expenses since 29 June 2004. Wealand says that this is a crucial consideration. This payment was explained by counsel for the commission on the basis of the commission's obligation pursuant to s 12 of the Motor Vehicle (Third Party) Insurance Act 1943. My reading of that section entitled "emergency treatment" does not coincide with the interpretation placed upon it by counsel for the commission. However, this is not determinative of the matters as far as I can see. That particular correspondence sets out that 100 per cent of the plaintiff's claim would be paid. However, it is on the basis that the payment is "without prejudice and without admission of liability". Any payments made were thus qualified.
Some eight days after that letter Wealand's lawyers sought advice as to the commission's attitude towards liability, a question not resolved in my view, by the earlier correspondence.
The wording of the 12 July 2004 letter is consistent with the position now sought to be adopted by the commission. It is certainly not clear from that letter that Wealand's role in the accident would not come into question. It is not an unequivocal admission of liability on the part of the commission.
The statement that negligence of the defendant will not be denied is not an open acceptance of all liability. The letter of 12 July 2004 does not say that liability is not an issue. There is nothing to suggest that the accident was caused solely by the defendant.
The correspondence proceeds the action. The defence filed by the commission in response to the writ makes it very clear at an early stage that liability is not so straight forward. The application by the commission to amend its defence is in line with its earlier admission that the liability of the deceased insured is not an issue.
Time frame
The accident happened on 7 June 2003. A year or so passed before the contentious correspondence between the parties was exchanged. The defence denying liability was filed eight months later. No legal action was taken by Wealand through his solicitors until a further five months had elapsed. This was after the commission had filed an application to amend its defence. Even if an admission had been made in terms suggested by Wealand the time lapse and prejudice put forward is not so great when weighed against all other considerations.
Wealand had legal representation at least at the crucial time. It was prudent, by correspondence of 8 July 2004 to ascertain the commission's attitude towards liability. The subsequent correspondence to Wealand through his solicitors was not unambiguous insofar as it related to the admission of everyone's liability. It simply accepted negligence on the part of the insured driver. If there was any doubt, then the defence filed on 23 March 2005 certainly called the issue of liability and negligence into question. In the context of this case the time in which the situation was unclear to Wealand has not been shown to materially prejudice his case.
The "overriding principle of the attainment of justice" will be facilitated by allowing the pleadings to be amended and the matter litigated in due course both as to liability and quantum.
Given my view on the nature of the correspondence, I find it unnecessary to consider the further alternatives advanced by Wealand.
On this basis I will dismiss the appeal. It follows that the defendant will have leave to amend its defence in terms of the minute of proposed amended defence. I note that an amended defence was filed on 3 November 2005. A further order will be made that within 14 days the plaintiff is to make and file a statement, verified by affidavit, in answer to the interrogatories filed by the defendant on 18 March 2005. I will hear the parties as to any further orders either seeks.
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