K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 (1 August 1985)

HIGH COURT OF AUSTRALIA

K. & S. LAKE CITY FREIGHTERS PTY. LTD. v. GORDON & GOTCH LTD. [1985] HCA 48; (1985) 157 CLR 309

Contract - Statutes

High Court of Australia
Gibbs C.J.(1), Mason(2), Brennan(3), Deane(4) and Dawson(5) JJ.

CATCHWORDS

Contract - Carriage of goods - Duties and liabilities - Special contracts - Exemption clauses - Contracts by which persons contract out of remedies for negligence of other persons driving motor vehicle declared void by statute - Third party claim for property damage - "Person" - Motor Vehicles Act 1959(S.A.), s. 133.

Statutes - Construction - Divisions and headings - Section operating independently of other sections in Part - Heading of Part.

HEARING

1985, March 26; August 1. 1:8:1985
APPEAL from the Supreme Court of South Australia.

DECISION

GIBBS C.J.: I have had the advantage of reading the reasons for judgment prepared by my brother Deane and am able to express quite shortly my reasons for agreeing in the conclusion that he has reached.

2. The question for decision is whether s.133 of the Motor Vehicles Act 1959 (S.A.), as amended, applies to a contract whereby a company which consigned goods for carriage agreed that the carrier should not "in any circumstances (except where any statute otherwise required) be under any liability whatever (whether in contract tort or otherwise) for any loss of or damage to ... the goods ... nor for any consequential loss ... whether such loss damage ... or consequential damage is caused or alleged to have been caused by a negligence (sic) or wrongful act or default of the carrier or its servants or agents or sub-contractors or the servants or agents of any sub-contractors or by any other cause whatever". Section 133 provides as follows:

"Any contract (whether under seal or not) by
virtue of which a person contracts in advance out
of any right to claim damages or any other remedy
for the negligence of any other person in driving a
motor vehicle shall to that extent be void."

3. The question of construction which arises is a difficult one. On the one hand, the words of s.133 are clear and unambiguous: they apply to any contractual provision by which a person contracts out of any right to claim damages for the negligence of any other person in driving a motor vehicle, whether the negligence has resulted in death or bodily injury, or damage to property, or all of those things. On the other hand, Pt.IV of the Act, in which s.133 appears, is headed "THIRD PARTY INSURANCE" and reveals as its principal purpose the effectuation of a scheme (which applies throughout Australia by virtue of similar legislation in other States and Territories) designed to ensure that a person who recovers damages in respect of death or bodily injury caused by or arising out of the use of a motor vehicle shall be able to recover those damages either from an insurer or, if the vehicle is uninsured, from a nominal defendant. As part of the scheme, it is required that in respect of all motor vehicles registered or, subject to exceptions, driven on a road, there shall be in force a policy of insurance which insures the owner and any driver in respect of all liability that may be incurred by the owner or driver in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth. In that context, it would not be surprising to find a section which avoids a contractual provision by which a person contracts in advance out of a right to claim damages for negligence resulting in death or bodily injury. However, s.133 appears to go further; if its words are given their ordinary and natural meaning, the section will also render void any contractual provision by which a person contracts in advance out of a right to claim damages for negligence causing the loss of or damage to goods being carried by motor vehicle. A section so wide may seem out of place in Pt.IV, and the appellant submits that the heading of the Part and the context which the Part provides should lead to the conclusion that the real intention of the legislature was to avoid only provisions by which a person contracts out of liability for death or bodily injury.

4. The words of any statutory provision must be first read in the context provided by the statute as a whole (Attorney-General v. Prince Ernest Augustus of Hanover (1957) AC 436, at pp 461, 473; Maunsell v. Olins (1975) AC 373, at p 386; Black-Clawson Ltd. v. Papierwerke A.G. [1975] UKHL 2; (1975) AC 591, at p 613) but "if, when so read, the meaning of the section is literally clear and unambiguous, nothing remains but to give effect to the unqualified words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 C.L.R 449, at p 455; Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, at pp 304-305. A consideration of the other provisions of Pt.IV does not reveal any inconsistency between any of those provisions and s.133; that section goes beyond, but does not contradict the purpose of, the other provisions of Pt.IV and does not render those other provisions in any way less effective. Section 133 does not bring about a result that could be described as inconvenient, improbable or unjust, and still less as absurd or irrational. The context provided by the Part does not render obscure or doubtful the words of s.133 which in themselves are clear and remain unambiguous in their context. Even if the context of Pt.IV were regarded as entirely alien, and s.133 stood alone in that context, I should not have thought that there was any justification for departing from the ordinary meaning of the words of the section.

5. In any case, it is not quite true to say that Pt.IV deals only with "third party insurance" in the sense which may be attributed to those words in the light of the scheme which the Part is designed to effectuate. Section 107 provides as follows:

"Notwithstanding any enactment, an insurer in
relation to a policy of insurance whether under
this Part or otherwise in relation to a motor
vehicle shall, as from the date of the policy, be
liable to indemnify the persons or classes of
persons specified in the policy in respect of any
liability which the policy purports to cover."

The legislative history of that section makes it clear that the words "whether under this Part or otherwise" were intended to ensure that the provisions of s.107 were not limited to policies issued under Pt.IV. The section originally appeared as s.70C(3) of the Road Traffic Act 1934 (S.A.), and then referred to "a policy of insurance under this section". Section 70C(3) was repealed by s.25(2) of the Road Traffic Act Amendment Act 1938 (S.A.) and replaced by s.70q, which was in the same terms as the present s.107. That change made in 1938 was significant, and supports the view that s.107 applies to a policy indemnifying the owner or driver of a vehicle against liability for loss of or damage to goods, as well as to a policy issued under Pt.IV. Section 134 renders it unlawful for persons other than those specified in the section to act for reward in connexion with claims or actions "for damages for death, bodily injury, or injury to property, arising out of the use of a motor vehicle". It is true that a provision such as that of s.134 might be regarded as ancillary to a scheme of compulsory insurance against liability in respect of death or bodily injury but the fact remains that the section is expressly extended to claims for damage to property. The presence of these two sections in Pt.IV means that not all of the provisions of that Part were intended to be limited to liability for death or bodily injury. The context which that Part provides is not entirely incongruous with s.133 when that section is given its natural meaning.

6. A further argument was advanced that the word "person" in s.133 refers only to natural persons and does not include a company. I regard this argument as untenable for the reasons given by my brother Deane.

7. It was suggested in the outline of argument submitted by the appellant that the fact that s.133 has the limited meaning which the appellant sought to place upon it could be gleaned from the parliamentary papers, but that argument was abandoned. It may be assumed that in this, as in many other cases, nothing said in the legislature when the Bill was debated throws any light on the meaning of the doubtful provision.

8. The Full Court of the Supreme Court of South Australia rightly held that s.133 did apply to the contract in question.

9. I would dismiss the appeal.

MASON J.: This is an appeal by special leave from a decision of the Full Court of the Supreme Court of South Australia on a case stated pursuant to s.49 of the Supreme Court Act 1935 (S.A.), as amended, in an action by the respondent against the appellant freight company for damages for the loss of certain goods committed by the respondent to the appellant's custody for carriage from Sydney to Adelaide. The question, which was answered in the affirmative by the Full Court, is whether s.133 of the Motor Vehicles Act 1959 (S.A.), as amended ("the Act"), applied to the contract for the carriage of the goods.

2. The contract was contained in a consignment note headed "Conditions of Carriage" which was signed by an employee of the respondent and given to the driver who collected the goods on the appellant's behalf from the respondent's premises in Sydney. The driver was employed by a sub-contractor of the appellant. The consignment note provided, inter alia, that the consignment was to be governed by the law of South Australia and that the appellant would not be liable, in tort, contract or otherwise, for any loss or damage to the goods or for any default in the delivery of them that might be caused by the negligence or wrongful act or default of the appellant or its sub-contractors or the servants or agents of either. The goods were lost in transit as a result of a collision which occurred in New South Wales and which appears to have been due to the negligence of the driver.

3. Section 133 is in the following terms:

"Any contract (whether under seal or not) by virtue
of which a person contracts in advance out of any
right to claim damages or any other remedy for the
negligence of any other person in driving a motor
vehicle shall to that extent be void."

The critical question is whether the section, on its proper construction, applies to all contracts by virtue of which a person contracts out of a right to claim damages or any other remedy in respect of a loss of any kind for the negligence of another in driving a motor vehicle so as to include damages for loss of property, as the Full Court found, or whether, as the appellant contends, it is limited to contracts by virtue of which a person contracts out of a right to claim in respect of death or bodily injury. It has not been suggested that s.133 is in any relevant way limited in its territorial application.

4. On its face s.133, which is expressed in general terms, contains no limitation on the nature of the claim to damages or other remedy to which it refers. However, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context (Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, at pp 304, 319-320; Attorney-General v. Prince Ernest Augustus of Hanover (1957) AC 436, at pp 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover Viscount Simonds said (at p.461):

"... words, and particularly general words, cannot
be read in isolation: their colour and content are
derived from their context. So it is that I
conceive it to be my right and duty to examine
every word of a statute in its context, and I use
'context' in its widest sense ... as including not
only other enacting provisions of the same statute,
but its preamble, the existing state of the law,
other statutes in pari materia, and the mischief
which I can, by those and other legitimate means,
discern the statute was intended to remedy."

In Re Bidie (1948) 2 All ER 995, Lord Greene M.R. said (at p 998):

"In the present case, if I might respectfully make
a criticism of the learned judge's method of
approach, I think he attributed too much force to
what I may call the abstract or unconditioned
meaning of the word 'representation.' ... The real
question which we have to decide is: What does the
word mean in the context in which we find it here,
both in the immediate context of the sub-section in
which the word occurs and in the general context of
the Act, having regard to the declared intention of
the Act and the obvious evil that it is designed to
remedy?"

The instances of general words in a statute being so held to be constrained by their context are legion (e.g. Ross v. The Queen [1979] HCA 29; (1979) 141 CLR 432, at p 440 and the cases collected in Cross, Statutory Interpretation (1976), pp.44-56).

5. The long title of the Act is "An Act to consolidate and amend certain enactments relating to the registration of motor vehicles, drivers licences and third party motor insurance, and for other purposes." It is divided into Parts which, on the whole, deal with discrete and largely homogenous subjects. Section 133 is contained in Pt IV of the Act which is headed "THIRD PARTY INSURANCE". The purpose and effect of Pt IV is to provide for a scheme for the compulsory insurance of the owners and drivers of motor vehicles in respect of liability for the death of, or bodily injury to, any person arising out of the use of those vehicles in any part of Australia. The scheme is part of a nationally integrated system by which provision is made for the compensation of the victims of motor vehicle accidents.

6. Section 99a(8) of the Act requires that a policy of insurance in terms of the fourth schedule to the Act be in force in respect of all motor vehicles registered in South Australia or in respect of which an exemption from registration or a permit is granted. Under such a policy, and in order for a policy of insurance to comply with Pt IV, the insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle, whether with or without the consent of the owner, in respect of all liability "in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth" (The Fourth Schedule, Policy of Insurance, cl.1; s.104). Subject to certain immaterial exceptions, s.102(1) prohibits a person from driving a motor vehicle on a road or on a wharf, that is on a road or on a wharf in South Australia, unless a policy of insurance complying with Pt IV is in force in relation to the vehicle. However, by virtue of s.102(4) and the proclamations made under s.102(5), this prohibition does not apply to a person who drives a motor vehicle on a road if the vehicle is registered in another state or in the Northern Territory or the Australian Capital Territory and if there is in force in that State or Territory in respect of the vehicle a policy of insurance which complies with the law of the State or Territory and under which the owner and driver are insured against liability in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle in South Australia. In conformity with equivalent legislation in the other States and Territories, provision is also made in the case of death or bodily injury for recovery against the insurer where the insured is dead or cannot be found (s.113) and against the nominal defendant where the motor vehicle causing the death or injury cannot be identified (s.115) or was uninsured (s.116).

7. Section 133 aside, and with the possible exception of s.107, the remaining provisions of Pt IV are concerned with the establishment of the general scheme which it enacts or are ancillary to that general scheme. The argument of the respondent that s.134 constitutes an exception to the general scheme cannot be supported. That section prohibits persons other than those with specified qualifications from acting, accepting instructions to act or holding themselves out as being willing to act, for reward on behalf of others in respect of claims or actions for damages arising out of the use of motor vehicles. Claims or actions for damages for injury to property are specifically included within the prohibition. However, the function of this aspect of s.134 in a scheme relating to claims in respect of death and bodily injury is readily discernible. By minimising the likelihood of unqualified persons acting in relation to claims or actions for damages for injury to property, it serves, along with other provisions of the Act (see, for example, ss.125(3), 126), to avoid conduct which might otherwise jeopardize claims in respect of death or bodily injury.

8. The respondent's next argument, based on s.107, presents more complexity. The section provides:

"Notwithstanding any enactment, an insurer in
relation to a policy of insurance whether under
this Part or otherwise in relation to a motor
vehicle shall, as from the date of the policy, be
liable to indemnify the persons or classes of
persons specified in the policy in respect of any
liability which the policy purports to cover."

The term "policy of insurance" is defined in s.99(1), unless otherwise required by the context, to mean a policy of insurance that complies with Pt IV. The problem is to determine what is meant by the words "whether under this Part or otherwise". The legislative history of the section makes it difficult to accept the appellant's submission that those words are directed simply towards interstate policies.

9. Section 107 derives from s.36(4) of the Road Traffic Act 1930 (U.K.) and was originally enacted in South Australia with the introduction of Pt IIA of the Road Traffic Act 1934 (S.A.), the predecessor of Pt IV of the present Act, by the Road Traffic Act Amendment Act 1936 (S.A.) in a form which restricted it to policies under that Part. It was re-enacted in its present form as part of a further amendment to the 1934 Act by the Road Traffic Act Amendment Act 1938 (S.A.). The mischief at which s.36(4) of the United Kingdom Act was aimed, as explained in Tattersall v. Drysdale (1935) 2 KB 174, at pp 180-182, was: (a) the possibility of an insurance company raising the provisions of the Life Assurance Act 1774 (U.K.) against a driver of a vehicle seeking to obtain the benefit of a policy taken out by the vehicle's owner; and (b) the inability of a person not a party to a contract to bring an action on that contract unless there was an intention to create a trust for the benefit of that person or unless the assured was acting with the privity and consent of that person so as to be contracting on his behalf. The difficulty is that the mischief appears to have been capable of applying to a policy indemnifying a driver against claims arising from damage to the property of third parties. I make this comment subject to two qualifications. The first is that the Life Assurance Act applies in South Australia, a matter which was not explored in argument. The second is that, in any event, the Life Assurance Act may have no application to a policy indemnifying a driver against claims arising from damage to the property of third parties where the third party indemnity is incidental to the coverage of the vehicle (cf. Williams v. Baltic Insurance Association of London, Limited (1924) 2 KB 282, at pp 289-290).

10. However, it is unnecessary to express a concluded view on these matters. If s.107 does apply to an insurance policy relating to property damage, it is because of the inclusion in the section of words indicating an intention that it should extend beyond Pt IV. And, although a section in terms materially identical to s.133 was first inserted into Pt IIA of the 1934 Act by the same amendment Act of 1938, it could not thereby be suggested that s.133 is intended to have the same width of operation as s.107.

11. Notwithstanding the general terms in which it is expressed, s.133 must therefore be considered in the context of a part of the Act which is devoted in its essential elements exclusively to the establishment of a compulsory insurance scheme to provide compensation for death and bodily injury. With due respect to those who think otherwise, that context demands that the section be read more narrowly than if it had stood alone so that it does not extend to include contracts relating to claims in respect of loss of property. After all, the object of a provision against contracting out is to secure to the class of persons intended to be protected the benefits which the statute seeks to make available. In view of the absence of any similar compulsory insurance requirements in relation to property damage, a natural reading of the section requires that it be confined to rights to damages in respect of death or bodily injury, these being the benefits which the statute is concerned to provide. It would be otherwise if any recognizable policy could be seen to be served by restricting contractual freedom in this area. But no such policy can be discerned. Quite apart from these considerations, there is the lack of congruity which the section, on the respondent's sweeping construction, would have with the other provisions of Pt IV and the unlikelihood of it being contained in a highly specialized part of the Act.

12. This conclusion is strengthened by the consideration that provisions designed to prevent the contracting out of liability for negligence in driving a motor vehicle form part of the legislative scheme for the compensation of the victims of motor vehicle accidents in each of the States and Territories. With the exception of s.26 of the Motor Vehicle (Third Party Insurance) Act 1943 (W.A.), as amended, which is in terms substantially identical to s.133, each of the provisions in the States and Territories other than South Australia is expressly limited to claims in respect of death and bodily injury. In the absence of a clearly expressed intention to the contrary, the more general words of s.133 should not lightly be thought to depart from this limitation. As Fullagar J. stated in Gale v. Federal Commissioner of Taxation [1960] HCA 18; (1960) 102 CLR 1, at p 12, "nice distinctions ought not be drawn between different forms of words in statutes in pari materia." The statutes to which his Honour was referring in that case were Commonwealth and State (or colonial) Acts providing for the inclusion in the dutiable estate of a deceased person of property given or settled by him in his lifetime. His Honour's injunction applies with particular force here where the statutes are found in every State and Territory and enact schemes which are integrated nationally.

13. In the result I would allow the appeal, set aside the answer given by the Full Court to the case stated and order that the case stated be answered in the negative.

BRENNAN J.: In choosing between a primary, broader meaning of words in a section and a secondary, narrower meaning that corresponds with the subject matter dealt with in surrounding sections, it is relevant to consider whether the particular section has an operation independent of the operation of the surrounding sections or whether the operation of the particular section affects or is affected by the operation of the surrounding sections. The operation of s.133 of the Motor Vehicles Act 1959 (S.A.) is independent of the operation of the other sections in Part IV of that Act. That circumstance and the factors which Deane J. discusses in his reasons for judgment and which lead his Honour to dismiss the appeal lead me to the same conclusion.

DEANE J: On 30 December 1981 K & S Lake City Freighters Pty. Limited ("the carrier"), by a sub-contractor, collected from the premises of Gordon & Gotch Limited ("the consignor") in the Sydney suburb of Rosebery certain goods for carriage to Adelaide. At the time when the goods were so collected, the sub-contractor's driver was given a consignment note which had been signed on behalf of the consignor. There was attached to the consignment note a document headed "CONDITIONS OF CARRIAGE K & S LAKE CITY FREIGHTERS PTY LTD". Condition 2 of those conditions provided that the consignment "shall be subject to these conditions and shall be governed by the law of South Australia". Condition 4 provided:

"The carrier shall not in any circumstances (except
where any statute otherwise requires) be under any
liability whatever (whether in contract, tort or
otherwise) for any loss or damage to or
mis-delivery, delayed delivery or non-delivery of
the goods or any of them whether in transit or in
storage or otherwise nor for any consequential loss
of any kind whatever whether such loss, damage,
mis-delivery, delayed delivery, non-delivery or
consequential damage is caused or alleged to have
been caused by the negligence or wrongful act or
default of the carrier or its servants or agents or
sub-contractors or the servants or agents of any
sub-contractors or by any other cause whatever".

2. The goods consigned, which were valued at $55,557.14 and were the property of the consignor, were lost in transit in consequence of a collision in New South Wales when the driver of the sub-contractor's vehicle, one Wymark, drove his truck into a utility which was travelling in the opposite direction. The police report indicates that the collision was caused by Wymark's negligent driving. The consignor sued the carrier in the Supreme Court of South Australia for damages for loss of the goods. In the course of the pleadings it emerged that the carrier relied upon the exculpatory provisions of Condition 4 of the Conditions of Carriage attached to the consignment note. The consignor, for its part, claimed that any conditions of carriage which purported to relieve the carrier from liability for damages for negligence were void by virtue of the operation of s.133 of the Motor Vehicles Act 1959 (S.A.) ("the Act"). By an agreed case stated pursuant to s.49 of the Supreme Court Act 1935 (S.A.), the parties reserved for the consideration of the Full Court the following question:

"Does s.133 of the Motor Vehicles Act, 1959 (as
amended) apply to the contract for the carriage of
goods contained in the said consignment note?".

The Full Court (King C.J., Legoe and Cox JJ.) answered this question in the affirmative. The present appeal is brought, by special leave, from the judgment of the Full Court to that effect.

3. Section 133 of the Act provides as follows:

"Any contract (whether under seal or not) by virtue
of which a person contracts in advance out of any
right to claim damages or any other remedy for the
negligence of any other person in driving a motor
vehicle shall to that extent be void".

It was common ground on the hearing of the appeal in this Court that, if Condition 4 of the Conditions of Carriage attached to the consignment note was a contract of the kind described in s.133, the answer given by the Full Court to the question reserved was correct. The only ground upon which it was sought, on behalf of the carrier, to maintain that the contract contained in the consignment note was not a contract of that kind was that the provisions of s.133 should be read down so that they applied only to an attempt by a natural person to contract out of a claim for damages in respect of death or bodily injury whereas, in the contract contained in the consignment note, the purported contracting out had been by a company (the consignor) and related to a claim in respect of loss of or damage to property. Being, as I am, in substantial agreement with the judgment of Cox J. (with which King C.J. and Legoe J. agreed) and with the additional comments of Legoe J. in the Supreme Court, I am able to state briefly the reasons which lead me to conclude that the provisions of s.133 of the Act cannot be so read down or confined.

4. The words of s.133 must, of course, be read in their context in the Act and in the particular Part of the Act in which they are found (Part IV) (see, generally, Cross, Statutory Interpretation (1976), pp.44ff., 61ff., 99ff.; Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), p.31). That having been acknowledged, the starting point of the construction of s.133 must be the actual words of the section. The provisions of the section are complete on their face. There is nothing to indicate that their invalidating effect is dependent upon interaction with or the operation of the provisions of some other section or sections. Nor is there any suggestion of ambiguity in so far as they refer to contracting out of "any right to claim damages or any other remedy for the negligence of any other person in driving a motor vehicle" (underlining added). The words of the section are plainly apposite to embrace "(a)ny contract" by virtue of which "a person" contracts out of "any" right to claim (for negligence in driving a motor vehicle) damages for death, bodily injury, property damage or other loss. As a matter of language, one seeks in vain for anything in the section itself which would warrant confining its plain words so that they refer only to a contract by which "a person" contracts out of a right to claim in respect of death or bodily injury.

5. The main argument on behalf of the carrier was that the provisions of s.133 should be confined by reason of the subject matter of the other provisions of Part IV. As has been said, the words of s.133 must be read in their context in Part IV and in the Act as a whole. It appears to me however that, even when they are so read, the plain words of the section cannot, by any legitimate process of statutory construction, be constricted or read back so as to exclude, from the words "any right to claim damages or any other remedy", any right to claim damages or any other remedy for anything other than death or bodily injury. To the contrary, there are other provisions in Part IV which tend to negate, rather than support, any thesis that the provisions of Part IV in general or of s.133 in particular must be confined to apply only to claims for damages for death or personal injury. In particular, the predecessor to s.107, which was introduced contemporaneously with the predecessor to s.133, amended and re-enacted an earlier provision by removing an express limitation to death or personal injury and referring instead to "a policy of insurance whether under this Part or otherwise in relation to a motor vehicle". To adopt the conclusion drawn by Cox J., "the generality of language in s.133 ... (was) not unprecedented" and "it would be very difficult to argue that the liability it creates was intended by Parliament to be confined to a liability with respect to death or bodily injury". Moreover, as Cox J. pointed out, the "ancestor" of s.134, introduced contemporaneously with the predecessor to s.133, was quite soon after "expressly extended to a claim or action for damages for injury to the property of any person arising out of the use of a motor vehicle". Section 134, therefore, became no longer confined to claims in respect of which the compulsory insurance provisions of Part IV apply but applies to property damage in respect of which there may be no insurance at all. In summary, Part IV contains provisions contemporaneous in their origins with s.133 which were demonstrably intended by the Legislature to apply to claims of the type involved in the present case.

6. On the other hand, it must be conceded that the other provisions of Part IV provide a somewhat inappropriate context for a provision which operates to render void, in a commercial contract for the carriage of goods, a condition to the effect that the carriage should be at the risk of the owner and not of the carrier. The fact that the operation of the plain words of a statute extends beyond the requirements of the particular legislative scheme which provided the context and occasion of their enactment provides of itself no sufficient warrant however for refusing to give effect to the words which the Legislature has seen fit to use. This is particularly the case where the proposed confinement of those plain words would exclude applications of the words actually used to circumstances to which their application would be neither unexpected nor surprising such as to preclude a person from contracting out of a right to claim for damages for injury to his clothing or personal effects sustained as a result of physical impact. Moreover, it is far from self-evident that it might not have been the considered legislative policy that there should be no advance absolution of the negligent driver from any of the civil consequences of his negligence. As Cox J. commented in the course of his judgment in the Full Court of the Supreme Court:

"... It is by no means surprising that Parliament
should wish to ensure the universality of the
compulsory insurance scheme with respect to death
or bodily injury by rendering void any attempt to
contract out of it, and it is not inconceivable
that it should have decided at the same time on
other policy grounds to extend the prohibition
against contracting out to other claims arising out
of the negligent driving of a motor vehicle. If
Parliament did intend to legislate to that general
end, then it is not inappropriate that it should
have done so in an Act relating to motor vehicles.
It cannot carry very much weight, in view of the
clear terms of s.133 itself, that the other
provisions of Part IV of the Motor Vehicles Act
deal for the most part with a liability in respect
of death or bodily injury. The exceptions to that
general rule in ss.107 and 134 tell against a
restricted construction of s.133".

7. It was also argued on behalf of the carrier that the words of s.133 should be read down by reason of the heading ("THIRD PARTY INSURANCE") of Part IV of the Act. In my view, two reasons effectively preclude the section being so read down by reason of that heading. The first is that, as has been said, the language of s.133 is clear. The section refers to any contract by virtue of which a person contracts in advance out of any right to claim damages or any other remedy for the negligence of any other person in driving a motor vehicle. As a matter of language, the section covers the case where a person contracts in advance out of a right to claim in respect of property damage. If the heading of Part IV were properly to be construed as referring only to damages in respect of death or bodily injury, either the heading would need to be regarded as having "been inserted for the purpose of convenience of reference, and not intended to control the interpretation of the clauses which follow" (Union Steamship Company of New Zealand v. Melbourne Harbour Trust Commissioners (1884) 9 App.Cas. 365, at p 369) or, alternatively, there would exist a plain inconsistency between the heading and the clear words of s.133 to which the heading must give way (cf. per Stephen J., Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [1978] HCA 11; (1978) 140 CLR 216, at p 225; Cross, op. cit., pp 107-108). The second reason is that the heading of Part IV is not, in any event, inappropriate for a Part containing provisions dealing with third party claims for property damage as well as third party claims for death or personal injury in that the phrase "Third Party Insurance" is appropriate to refer to insurance in respect of either category of claim.

8. There remains to be considered the argument advanced on behalf of the carrier that the words of s.133 should be confined to a contract by which a natural person contracts in advance out of a right to claim damages. Again, I am unable to accept the submission that the words of the section should be so confined. Prima facie, the word "person" in a statute includes both natural and artificial legal entities (see Acts Interpretation Act 1915 (S.A.), s.4, and, generally, per the Privy Council, Royal Mail Steam Packet Company v. Braham (1877) 2 App.Cas. 381, at p 386, and per Rich and Dixon JJ., Leske v. S.A. Real Estate Investment Co. Ltd. [1930] HCA 36; (1930) 45 CLR 22, at p 25). As Mann C.J. commented in Bennett-Hullin v. Clark & Co. (1944) VLR 45, at p 46, in the context of construing a comprehensive motor vehicle insurance policy, "(i)t has been long established by undoubted judicial authority and now by statute that the word 'person' occurring in a written contract such as the policy before us is to be read as including a corporation unless a contrary intention appears ... . This is a technical rule of convenience limited to the construction of written documents, and is quite contrary to all practice in spoken language, as was pointed out by Lord Blackburn in Pharmaceutical Society v. London and Provincial Supply Association ((1880) 5 App.Cas.857, at p 869)". The word is so used in many places in Part IV. There is, in my view, no valid reason for holding that it is not used with that ordinary wide meaning when it first occurs in s.133.

9. In the result, the appeal should be dismissed. I note that the case stated does not raise the question whether the provisions of s.133 are confined to a right to claim damages or any other remedy for negligence in driving a motor vehicle within the State of South Australia and that that question has not been the subject of argument on this appeal.

DAWSON J.: For the reasons given by the Chief Justice and Deane J., I agree that, whatever questions may be raised by the context of the Motor Vehicles Act 1959 (S.A.), there is nothing which is sufficiently compelling to require a departure from the plain meaning of the words used in s.133. Accordingly, I am of the view that that section did apply to the contract for the carriage of the goods and that the appeal should be dismissed.

ORDER

Appeal dismissed with costs.