Lane v Botterill [2005] ACTSC 40 (20 May 2005)

Last Updated: 8 June 2005

KATHLEEN MARY LANE v ROBERT BOTTERILL [2005]

ACTSC 40 (20 May 2005)

NEGLIGENCE - motor vehicle accident - whether requirement for notice under s 190 of the Road Transport (General) Act 1999 (ACT) applicable to all motor accident claims or only claims against an authorised insurer.

Road Transport (General) Act 1999 (ACT), ss 158, 190, 192, 193, 197, 200

Legislation Act 2001 (ACT), ss 88, 139, 141

Civil Law (Wrongs) Act 2002 (ACT), s 51

Road Transport (General) Bill 1999 (ACT)

No SC 161 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 20 May 2005

IN THE SUPREME COURT OF THE )

) No SC 161 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KATHLEEN MARY LANE

Plaintiff

AND: ROBERT BOTTERILL

Defendant

ORDER

Judge: Crispin J

Date: 20 May 2005

Place: Canberra

THE COURT ORDERS THAT:

1. it be declared that in the circumstances described in the affidavit of Peta Jane Piper sworn 23 March 2005 the plaintiff is not required to give written notice to the defendant's authorised insurer pursuant to s 190 of the Road Transport (General) Act 1999 (ACT) as a condition precedent to commencing proceedings against the defendant for damages for personal injuries suffered in a motor vehicle accident on 9 May 2000.

1. This is an application for a declaration that in the circumstances described in the affidavit of Peta Jane Piper sworn 23 March 2005 and filed herein ("the affidavit"), the plaintiff is not obliged to serve the defendant with a notice under s 190 of the Road Transport (General) Act 1999 (ACT) ("the Act") as a condition precedent for commencing proceedings against the defendant for damages for personal injuries suffered in a motor vehicle accident on 9 May 2000.

2. The circumstances deposed to in the affidavit may be briefly summarised. The plaintiff was injured in a motor vehicle accident on that date when the rear of a motor vehicle in which she had been travelling was struck by the defendant's vehicle and shunted forwards into the rear of the vehicle in front of her. Notice of a claim in respect of her injuries was served upon NRMA Insurance Ltd ("NRMA") on 1 October 2004. The NRMA initially responded by sending the plaintiff's solicitors a medical authority form. That was duly executed and returned. However, on 4 February 2005 the defendant's solicitors indicated that NRMA did not consent to extend the time allowed to make a claim under s 190 of the Act and requested an adequate explanation for the late lodgement of the claim. The plaintiff's solicitors replied by indicating that, should NRMA continue to maintain that it was entitled to rely upon s 190, they would seek a court ruling on the issue. NRMA maintained its position and the present proceedings were commenced.

3. The relevant portion of s 190 is in the following terms:

(1) Action to enforce a claim against an authorised insurer may be taken only if the claimant gives written notice of intention to make a claim to the insurer within three months after the motor accident.

4. The term "claim" is defined by s 158 to mean "a claim for damages in relation to the death of, or bodily injury to, a person caused by, or arising out of the use of, a motor vehicle". It is common ground that NRMA is the authorised insurer.

5. Mr Crowe SC, who appeared for the plaintiff, submitted that it was clear from the language of s 190 that it was directed to claims made by a plaintiff directly against an authorised insurer. It did not extend to claims against other defendants, who had been drivers or owners of motor vehicles involved in accidents, even if an authorised insurer might ultimately become liable for any damages by reason of their obligation to indemnify the defendants. When an action is brought against the owner or driver of a motor vehicle involved in such an accident the duty to provide notice to the authorised insurer is not imposed upon the plaintiff by s 190, but a similar duty is imposed upon the proposed defendant by s 192 and the plaintiff is required by s 193 to serve a copy of the originating process on the authorised insurer.

6. The right to take proceedings directly against an authorised insurer is provided by s 197, the relevant portion of which is in the following terms:

(1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant, and anyone claiming contribution or indemnity between joint tortfeasors, may -

(a) bring an action in relation to the claim against the person's authorised insurer; and

(b) recover in the action an amount for which the claimant, or the person claiming contribution or indemnity, could have obtained a judgment against the insured person.

7. Mr Crowe submitted that s 190 had clearly been intended to ensure that an action could not be commenced directly against an authorised insurer pursuant to s 197 unless notice had been given pursuant to s 190 because, in an action of that kind there is no other defendant available to give due notice of the claim pursuant to s 192.

8. Mr Crowe also argued that any conceivable doubt about the application of s 190 could be effectively dispelled by reference to extrinsic material, considered pursuant to s 141 of the Legislation Act 2001 (ACT). In presenting the Road Transport (General) Bill 1999 (ACT) the Minister for Urban Services had stated that "It re-enacts, with some changes, certain provisions of the Motor Traffic Act 1936 . . ." ("the previous Act"). The explanatory memorandum had included a paragraph which stated that ss 158 to 223 had been "substantially re-enacted, with alterations made [to] reflect the new definitions under the National Transport Reforms and current legal drafting techniques".

9. The comparable provision in the previous Act had been contained in s 61(4) which had referred specifically to "an action under subsection (3)". Subsection (3) had contained provisions with a similar effect to those contained in s 197. Hence, the provisions in the previous Act requiring notice to be served upon authorised insurers had clearly applied only to claims made directly against such an insurer. Since the legislature had apparently intended to substantially re-enact those provisions with alterations made only for the purpose of reflecting new definitions and then current legal drafting techniques, s 190 should be construed as having a similar effect.

10. Mr Crowe also relied upon the fact that s 190 had initially been accompanied by the note, "(MTA s 61(4)-4(A))". He acknowledged that a note in the Act is explanatory and not part of the Act (see s 5) but submitted that it could nonetheless be taken into account as an aid to interpretation by virtue of s 141 of the Legislation Act. He also acknowledged that the note was no longer in the Act at all but submitted that its "declaratory" effect nonetheless subsisted by reason of s 88 of the Legislation Act. He argued that the note initially accompanying s 190 provided further confirmation that the section had been intended to reflect a re-enactment of the provisions formerly contained within s 61 of the previous Act, rather than to import a new provision of much broader application.

11. On the other hand Ms Adamson SC, who appeared for the defendant, submitted that s 190 did apply to all motor vehicle accident claims in the Territory. She argued that the term "claim" should not be interpreted as having the same meaning as "proceedings". "Claim" was a term derived from insurance parlance and denoted a request or demand made prior to the commencement of proceedings or even in the absence of proceedings. Hence, any action for damages for injuries sustained in a motor vehicle accident was made in furtherance of a "claim" against the authorised insurer, even if the action was brought against a named driver or owner of the relevant vehicle or vehicles. Since liability would ultimately be borne by the authorised insurer, any other defendant against whom the proceedings were nominally instituted had, in effect, been "taken out of the financial equation".

12. She contended that the legislature had chosen to change the regime that had been introduced by s 61 of the previous Act and pointed to the different format adopted in s 190. She relied upon the reference to "some changes" in the presentation speech and submitted that the note initially accompanying the later section may not have been intended to suggest that the new provision was to be co-extensive in operation, but merely to refer people to the earlier provision dealing with the same subject matter.

13. Ms Adamson relied heavily upon the provisions of s 139 of the Legislation Act which provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. She submitted that the purpose of the legislation had been to ensure that authorised insurers received adequate notice of any claims that may result in them becoming liable to pay damages, and not merely claims brought against them directly. She stressed the need for authorised insurers to have adequate notice so that they might assess the merits of each claim without undue delay. This would enable them to guard against fraud and act responsibly in paying hospital and medical expenses as well as seeking to negotiate settlements. She also stressed the need for authorised insurers to make projections as to the overall financial cost of pending claims and set premiums accordingly.

14. This was an interesting and somewhat ingenuous argument but I am unable to accept that s 190 can be construed in the manner Ms Adamson suggested. The word "claim" cannot be construed, whether by reference to insurance parlance or otherwise, to mean the submission of a letter or form to an authorised insurer demanding payment of compensation pursuant to a policy, because the section does not contemplate that the claimant hold such a policy. Furthermore, there is no reason to suppose that the legislature would have intended to prevent an injured motorist from making a "claim" by, for example, writing a letter of demand or submitting a form to an authorised insurer without giving due notice of his or her intention to do so. In my opinion, the requirement for notice of an intention to make a "claim" is clearly directed toward the institution of proceedings.

15. I might mention, in passing, that if the word "claim" did not mean, or at least encompass, the commencement of proceedings but merely some anterior demand, then the plaintiff would, in any event, be entitled to the relief sought because she merely seeks to assert her right to commence proceedings without giving notice under that section. However, the crucial question is whether the section applies to proceedings brought against owners or drivers whom an authorised insurer may be required to indemnify pursuant to a third party policy.

16. The language of the section may be attended by some potential ambiguity. The phrase, "action to enforce a claim against an authorised insurer", suggests that the requirement for written notice may have been intended to apply to applications under s 200 to have an unsatisfied judgment against an owner or driver entered against the authorised insurer but, as Mr Crowe suggested, the phrase, "notice of intention to make a claim", suggests that it was intended to apply to actions brought against an authorised insurer pursuant to s 197. However, neither construction would assist the defendant in the present case and I can see no justification for reading the words, "against an authorised insurer" as if they meant "against an owner or driver insured by an authorised insurer".

17. There is nothing in the language of the section to suggest that the legislature had intended to expand the scope of the requirement for notice previously imposed by s 61 of the Motor Traffic Act 1936 so that it would apply to all motor accident claims and not merely those directly against authorised insurers. Furthermore, whilst I accept Ms Adamson's submission that the note initially accompanying the section was too terse to provide any significant guidance, I think it is significant that the explanatory memorandum contained no hint of any intention to radically expand the scope of the requirement and referred only to alterations to reflect new definitions and drafting techniques.

18. Whilst s 139 of the Legislation Act may provide considerable assistance in "working out the meaning of an Act", the section does not permit a court to move beyond a quest for the preferred interpretation of what has been enacted and effectively rewrite the relevant provision to incorporate some perceived improvement suggested by counsel. It is true, as Ms Adamson pointed out, that the legislature is free to change its mind and that the language employed in s 190 is quite different from the comparable section of the earlier Act. However, I see no reason to suppose that the later section reflected a legislative intention to extend the requirement for notice to all motor vehicle claims, whether brought against an authorised insurer or not. As Mr Crowe suggested in his submissions in reply, Ms Adamson provided an eloquent argument for legislative reform of the kind actually introduced by s 51 of the Civil Law (Wrongs) Act 2002 (ACT). I do not accept that s 190 had been intended to introduce a provision with similar effect three years earlier.

19. For these reasons the declaration will be granted.

20. I will hear counsel as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 20 May 2005

Counsel for the plaintiff: Mr R Crowe SC

Solicitor for the plaintiff: Australian Government Solicitor

Counsel for the defendant: Ms C Adamson SC

Solicitor for the defendant: Hunt & Hunt

Date of hearing: 6 May 2005

Date of judgment: 20 May 2005