Manfred Rautenberg v Max Gibbs & Terrence Hourigan & The Nominal Defendant [2000] ACTSC 78 (15 September 2000)

Last Updated: 17 October 2000

Manfred Rautenberg v Max Gibbs & Terrence Hourigan & The Nominal Defendant [2000] ACTSC 78 (15 September 2000)

CATCHWORDS

PRACTICE AND PROCEDURE - Contribution between tortfeasors - Nominal Defendant - Whether defendant can join Nominal Defendant for contribution.

Law Reform (Miscellaneous Provisions) Act 1955, s 11(4)

Motor Car Act 1958, s 49(1)

Motor Traffic Act 1936, s 85(3)

Wrongs Act 1958 (Vic)

Australian Safeway Stores Pty Ltd v Incorporated Nominal Defendant [1980] VR 118

Dunning v Altmann [1991] 2 VR 667

Parker v The Commonwealth (1984) 53 ACTR 11

Unsworth v The Commisioner for Railways and King [1958] Qd.R 228

No. SC 781 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 15 September 2000

IN THE SUPREME COURT OF THE )

) No. SC 781 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MANFRED RAUTENBERG

Plaintiff

AND: MAX GIBBS and TERRENCE HOURIGAN

Defendant

AND: THE NOMINAL DEFENDANT (ACT)

Third Party

ORDER

Coram: Master T. Connolly

Date: 15 September 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant's Notice of Motion dated 4 July 2000 be dismissed.

2. No order as to costs.

1. This is an application by notice of motion of 4 July 2000 to dismiss a third party claim dated 14 February 2000 and directed to the Nominal Insurer.

2. The substantive action is a claim for damages for personal injuries arising from an employment injury. In the originating application lodged on 12 November 1998 it is pleaded that the plaintiff sustained injuries on or about 15 September 1995 when in the course of his employment with the defendants as an aluminium fabricator a pallet fell during the course of unloading a truck. The plaintiff alleges an unsafe system of work. The defendants put in a defence on 24 November 1998 denying liability, disputing loss, and in the alternative pleading contributory negligence. There have been some interlocutory steps taken by way of discovery since that time.

3. In the third party notice the defendant seeks to bring in, for the purposes of contribution, the Nominal Defendant, on the basis that the injury arose out of the use of a motor vehicle, being the aforementioned truck, and that after due search and inquiry the identity of the motor vehicle cannot be established.

4. The Nominal Defendant objected that the third party notice should be dismissed on two grounds, primarily because it is said that, the Nominal Defendant being a creature of statute, a claim against the Nominal Defendant can only be brought pursuant to section 85(3) of the Motor Traffic Act 1936 by a person who would have a claim against the owner of the vehicle in respect of the injury. This may be described in these reasons as the statutory ground. The Nominal Defendant also objected that the Third Party Notice was deficient in that it did not on its face plead negligence. This may be described in these reasons as the pleading ground.

5. To deal with the pleading ground first, the Notice sets out the claim, as required under Order 20 Rule 1 (2), and in the particulars states,

"If it is found that the plaintiff suffered injury, loss or damage (which is denied) as alleged then the defendant says that such injury, loss or damage was caused by or arose out of the use of a motor vehicle in a public street, in circumstances where the owner and or driver of the said vehicle would, if sued by the plaintiff, have been liable."

6. The Nominal Defendant argued that this particular did not on its face plead negligence. Counsel for the defendants argued that, by pleading that the injury arose out of the use of the vehicle, "in circumstances where the owner and or the driver of the said vehicle would, if sued by the plaintiff, have been liable", it must be implied that negligence is pleaded, but he did seek leave, for an abundance of caution, to amend the third party claim to add the word "negligent" before "use of a motor vehicle in a public street". Leave was not opposed and was granted. It was appropriate that this not be opposed, as counsel for the Nominal Defendant acknowledged that the error could be corrected in a subsequent application, and resolving the matter at this stage minimises costs. As amended, the third party notice set up a prima facie valid claim. This pleading point only becomes relevant for present purposes in respect of costs.

7. The substantive statutory argument put forward by the Nominal Defendant is that, where an action is commenced by a plaintiff against a defendant, and the plaintiff elects not to commence an action against the Nominal Defendant, it is not open to the defendants in the action to bring in the Nominal Defendant by way of a third party notice. The Nominal Defendant is a creature of statute, and the basis of any action against the Nominal Defendant is section 85(3) of the Motor Traffic Act 1936 which provides:

"Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle in a public street but the identity of the motor vehicle cannot after due enquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the nominal defendant the claim which he or she could have enforced against the owner or driver of the motor vehicle."

8. There is clear authority for the proposition that a third party notice claiming a contribution is not itself an action as described in section 85(3) of the Motor Traffic Act 1936 - Unsworth v The Commisioner for Railways and King [1958] Qd.R 228 per Fullager at 549 and Taylor at 554 . (The report is of the decision of the High Court, not otherwise reported, and included in that volume of the Queensland Reports). This proposition is also established by Australian Safeway Stores Pty Ltd v Incorporated Nominal Defendant [1980] VR 118 (Full Court Supreme Court of Victoria). Counsel for the defendants does not disagree with this proposition, but says that the third party notice does not set up an action against the Nominal Defendant pursuant to s85(3) of the Motor Traffic Act, but rather relies upon the Rules of the Court, themselves regulating the action that is established by s 11(4) of the Law Reform (Miscellaneous Provisions) Act 1955 which provides:

"A tortfeasor liable in respect of the damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damages, whether as a joint tortfeasor or otherwise."

9. Counsel for the defendant argues that, this being the basis of the third party notice, the Nominal Defendant may properly be brought in to these proceedings as, on the basis of the pleading that the plaintiff's injury arose out of the negligent use of a motor vehicle, the Nominal Defendant fits the statutory description of, "any other tortfeasor who is, or would, if sued, have been liable in respect of the same damage".

10. Counsel for the defendant submitted that this much was determined, in respect of Victoria at least, by the decision of Smith J in Dunning v Altmann [1991] 2 VR 667. In that case the plaintiff brought an action for personal injuries against both the defendant Altmann and the Nominal Defendant, and the first defendant sought contribution from the Nominal Defendant. The Nominal Defendant sought to have the contribution notice struck out on the basis that it was not a "tortfeasor", and so could not be subject to a contribution notice based on the Victorian equivalent of s11(4) of the Law Reform (Miscellaneous Provisions) Act 1955, which is found in s24(1) of the Wrongs Act 1958 (Vic). It argued that the only basis for an action against it was the Victorian equivalent of s 85(3).

11. Smith J accepted that only the injured person can take advantage of the remedy given by s49(1) of the Motor Car Act 1958, being the equivalent provision in equivalent terms to s85(3) of the Motor Traffic Act. He said at 669, after citing Australian Safeway Stores Pty Ltd v Incorporated Nominal Defendant,

"It must therefore be accepted that the first defendant can not claim against the (Nominal Defendant) pursuant to that section. The entitlement to recover contribution from the (Nominal Defendant) must therefore be determined by considering two matters: (1) The application of s 24(1) of the Wrongs Act 1958 in the circumstances of this case, and (2) Whether the first defendant, to obtain contribution from the (Nominal Defendant) can rely solely on the Wrongs Act provision or must also establish an entitlement to recover against the (Nominal Defendant) under the Motor Car Act 1958, s 49."

12. His Honour held that the Nominal Defendant can be properly regarded as a tortfeasor for the purposes of the Wrongs Act, citing in support of that proposition the decision, binding upon me, of Blackburn CJ in Parker v The Commonwealth (1984) 53 ACTR 11 at 13. His Honour concluded that,

"The Wrongs Act 1958 s 24 (1) gives a defendant an independent right of action to seek contribution from other tortfeasors. While s49 of the Motor Car Act must be considered in determining the liability of the (Nominal Defendant) to the plaintiff and its status as a `tortfeasor", it is not necessary for the first defendant to rely on that section and to establish that his claim for contribution comes within the terms of that section. He must satisfy only the requirements of the Wrongs Act 1958, s 24 (1)."

(at 673).

13. It seems to me, with respect, that this reasoning is correct and should be applied to the legislation applying in this Territory. It follows that I find that s 11(4) of the Law Reform (Miscellaneous Provisions) Act 1955 creates for a defendant to a tortious claim for personal injuries and independent right of action to seek contributions from other tortfeasors. Where the plaintiff in that action would have a claim that they could bring against the Nominal Defendant pursuant to s 85(3) of the Motor Traffic Act 1936, the Nominal Defendant can be described as a tortfeasor for the purposes of s 11(4), and so may be the subject of a third party notice for contribution pursuant to Order 20.

14. In both Dunning v Altmann and Parker v The Commonwealth the plaintiff had elected to bring an action against both the defendant and the Nominal Defendant, but I note that both Smith J and Blackburn CJ expressed the view, albeit obiter, that a defendant may issue third party proceedings against the Nominal Defendant even if the Nominal Defendant had not been sued by the plaintiff (per Blackburn CJ at 14, Smith J at 673). In Parker the Chief Justice after deciding the point in issue said,

"Moreover, I have difficulty in seeing why the same principle should not apply to the case (which is not before me) where a defendant claims contribution from the Nominal Defendant when the latter is not already a defendant. Do not the words, " who would, if sued, have been liable in respect of the same damage" apply to the Nominal Defendant when the plaintiff has not sued him? With respect, I do not see why the proposition that the nominal defendant cannot, under the "Nominal Defendant" provision alone, be made liable to pay contribution, requires that he cannot be made liable under the "contribution" provision.

15. It follows that I should dismiss the notice of motion to dismiss the third party claim. In the ordinary course costs would follow the event, and the defendant would have their costs. In this case, the defendant sought leave, which was granted, to amend the third party notice to specifically plead that the loss or damage was caused by or arose out of the negligent use of a motor vehicle. It seems to me that this amendment was necessary, as the original form of the third party notice did not contain such an allegation. Although the third party notice did make reference to and repeat the particulars in the plaintiff's Statement of Claim, those particulars set up negligence in respect of the system of work in place at the time, and did not refer to negligence in relation to the use of or operation of the truck. I am not satisfied that it is sufficient to say that it could be implied that negligence was pleaded in the original form of the particulars in the third party notice - indeed it seems a contradiction in language to say that one can imply a cause of action from particulars.

16. It follows that the defendant had an indulgence in being able to make an amendment to correct what would otherwise have been a fatal, albeit easily remediable, defect in the third party notice. Counsel for the Nominal Defendant submitted that it should follow that, even if I were minded to dismiss their application, this alone would justify the exercise of the costs discretion in their favour.

17. Counsel for the defendant tendered a schedule of correspondence between the parties that showed that the issue between them leading up to this hearing had been confined to the statutory argument, and that the Nominal Defendant had not put them on notice that they would have to meet the pleading point, and submitted that they should thus be precluded from relying on this in respect of costs. It may be, of course, that the point was developed by counsel at a late stage.

18. Taking all of these factors into account, it seems to me that the discretion in relation to costs in this matter is best exercised by making no order as to costs. The Third Party has been unsuccessful in having the third party notice dismissed, but in the course of argument has identified what I find to have been a fatal defect in the way the third party notice was pleaded, which was remedied by granting the defendants leave to amend the third party notice. In these circumstances, it seems to me that neither party should get their costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly

Associate:

Date: 15 September 2000

Counsel for the Defendant: Mr McNally

Solicitor for the Defendant: Barker Gosling

Counsel for the Third Party: Mr Stretton

Solicitor for the Third Party: Phillips Fox

Date of hearing: 8 September 2000

Date of judgment: 15 September 2000