Chapman v Gibbo’s Transport Pty Ltd

By notice of motion filed on 3 February 2020, Qube Logistics (SL) Pty Ltd (the second defendant) seeks leave to file an amended defence and summary dismissal of the amended statement of claim filed on behalf of Michael Chapman (the plaintiff). The second defendant contended that the proceedings against the second defendant were prohibited by s 108 of the Motor Accidents Compensation Act 1999 (NSW) (the Act), since the claim fell within s 3A of the Act. All references to legislation in these reasons are, unless otherwise indicated, references to the Act.

It was common ground that the plaintiff was employed by Gibbo’s Transport Pty Ltd (the first defendant) and that the first defendant contracted with the second defendant for the haulage of flour. On 1 August 2016, the truck which the plaintiff usually drove, which was owned by the first defendant, was being repaired. A truck, which was owned by the second defendant, was allocated to the plaintiff. While the plaintiff was driving the truck, which was hauling flour from Manildra Flour Mills to Sydney, the truck rolled. The plaintiff suffered substantial injuries, including traumatic brain injuries, as a consequence.

It was common ground that the plaintiff has not obtained a certificate from the Personal Injury Commission of NSW (PIC) pursuant to either s 92 or s 94 of the Act.

Before addressing the substance of the submissions, it is convenient to set out the procedural chronology, in so far as it may bear on the second defendant’s application.

On 6 April 2020, the plaintiff commenced these proceedings in the District Court against the first defendant. The first defendant filed a defence on 17 April 2020. Subsequently, the plaintiff was granted leave to amend the statement of claim to add the second defendant as a party. He filed a first amended statement of claim, which made allegations against the second defendant, on 12 October 2020.

The second defendant filed a defence on 25 January 2021 but did not raise a defence under the Act. The second defendant also filed the first cross-claim against the first defendant. As the second defendant did not consent to extended jurisdiction by the District Court, the proceedings were transferred to this Court on 17 May 2021.

On 10 June 2021, the plaintiff filed a second amended statement of claim which corrected the name of the second defendant. On 30 November 2021, the second defendant notified the plaintiff of its proposal to amend its defence to raise ss 108 and 109 of the Act. On 16 December 2021, the first defendant filed the second cross-claim against the second defendant.

As referred to above, on 3 February 2022, the second defendant filed the present notice of motion seeking the following orders:

The plaintiff’s current pleading relevantly alleges as follows:

The particulars reproduced above are those which could relate to the second defendant. The particulars which relate to the first defendant, who was the plaintiff’s employer, have not been reproduced.

By its proposed amended defence (which is annexure “A” to the notice of motion), the second defendant seeks to add the following paragraphs:

At the hearing of the notice of motion, Mr Fitzsimmons SC sought leave to appear on behalf of QBE Insurance (Australia) Limited (QBE) on the basis that although QBE was not a party to the proceedings, it was affected by the relief sought by the second defendant. Leave, which was not opposed, was granted.

Mr Flett appeared on behalf of the first defendant at the hearing of the notice of motion, out of respect for the Court, but did not otherwise participate in the hearing.

Section 3 of the Act relevantly defines “claim” as meaning “a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.” “Fault” is defined as “negligence or any other tort”.

Section 3A(1) of the Act provides:

Section 79 relevantly provides:

Section 108 relevantly provides:

Section 108 operates as an absolute prohibition: Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636; [2003] NSWCA 231 (Emad Trolley) at [70] (McColl JA, Meagher and Hodgson JJA agreeing). As Leeming JA said in Millard v State Transit Authority [2013] NSWCA 321 at [6], s 108 “reflects a legislative policy that unless a motor vehicle claim is exempt it must first be assessed under CARS [Claims Assessment and Resolution Service, now PIC] before any court proceedings are commenced.”

Section 109 imposes a time limitation on a “claimant” commencing proceedings more than 3 years after the accident to which the claim relates but provides for the Court to grant leave for an extension of time in certain circumstances, including if a full and satisfactory explanation for the delay has been given.

Mr Parker SC, who appeared for the second defendant, contended that the plaintiff’s claim was a “claim” within s 3 of the Act and that s 3A applied. He submitted that the only appropriate course was for this Court to dismiss the plaintiff’s proceedings against the second defendant since s 108 had not been complied with. He relied on Emad Trolley in which the Court of Appeal held that a plaintiff could not, by pleading a claim in a particular way, avoid the operation of the Act.

Mr de Meyrick, who appeared for the plaintiff, submitted that the plaintiff’s claim against the second defendant did not fall within the definition of “claim” in s 3 or the purview of s 3A because it depended on allegations against the second defendant other than those arising from negligence in the operation of the vehicle, but rather from negligence in failing to give the plaintiff adequate instruction on how to handle the vehicle.

However, he informed me that the plaintiff had, since the notice of motion was foreshadowed, submitted a claim under the Act to QBE. QBE had denied liability on the bases that the plaintiff had not given a full and satisfactory explanation for the delay in making the claim and that the second defendant was not at fault. He submitted that it could be expected that the plaintiff would be granted a certificate of exemption pursuant to s 92 of the Act.

Ultimately, Mr de Meyrick submitted that the appropriate course was to make an order in terms of paragraph 1 of the notice of motion, granting leave to the second defendant to amend its defence to raise non-compliance with ss 108 and 109, but to stand over the balance of the notice of motion until the plaintiff had complied with s 108.

Mr Fitzsimmons accepted that the course for which Mr de Meyrick contended was an appropriate one. He submitted that, once the plaintiff had obtained a certificate under s 92 or s 94 of the Act, it could be expected that the plaintiff would plead, in the alternative, that the provisions of the Act applied (his primary case being that they did not). In that event, he submitted that it would be necessary for the plaintiff to apply to join QBE as a defendant to the proceedings since it would be liable for any negligence on the part of the second defendant which was covered by the Act: that is, for fault by the second defendant as owner of the vehicle in the use or operation of the vehicle caused while it was being driven by the plaintiff.

In reply, Mr Parker submitted that the plaintiff would suffer no prejudice by the dismissal of his claim against the second defendant because, once he complied with s 108, he could move to add the second defendant as a party. He also submitted that QBE, as the compulsory third party insurer of the second defendant, ought conduct the defence on behalf of the second defendant, even if only some of the particulars of negligence fell within the Act.

There are cases where the allegations of negligence against a defendant who is either the owner or driver of a motor vehicle fall squarely within s 3A of the Act. In such cases, it is appropriate to dismiss a claim if s 108 has not been complied with: see, for example, Millard v State Transit Authority and Emad Trolley.

However, in other cases, the position is not as clear. Section 3A requires that the injury must be caused by the fault of the owner or driver of a motor vehicle in the use or operation of the motor vehicle. There is a further causal and temporal requirement in s 3A: that the injury is a result of and is caused during, relevantly, the driving of the vehicle or the vehicle’s running out of control.

In the present case, the second defendant made available to the first defendant a vehicle which it owned so that it could be driven by the plaintiff. It is arguable that the plaintiff’s injuries were caused by the fault of the owner of a motor vehicle (the second defendant) in the use or operation of the motor vehicle and that his injuries are a result of and were caused during his driving of the vehicle. However, it is also arguable that any negligence on the part of the second defendant falls outside those parameters and therefore is not covered by the Act.

Ultimately, this is an issue to be tried, as is illustrated by Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11 (GLG). In GLG, the injured worker was employed under a labour hire arrangement with GLG. He was unloading boxes stored inside a container at GLG’s premises. One of GLG’s employees drove the forklift up and down a ramp connected to the container, which caused boxes stacked inside the container to fall and hit the worker. Although GLG was found to be at fault, its fault was not in the use or operation of the forklift as the driver was not driving in a negligent manner, but rather in the design and implementation of a system of work. Thus, the worker’s claim did not fall within the Motor Accidents Act 1995 (NSW).

A similar question arose in Adlawan v Recochem Inc [2021] NSWSC 223; (2021) 95 MVR 304. In that case, Cavanagh J found in the final judgment, at [168], that “[t]he fault was the failure to instruct the plaintiff not to park on the sloping driveway or permitting him to do so in circumstances in which its written system of work warned against such a practice.” His Honour concluded at [187]:

On that basis, his Honour found that the plaintiff was entitled to damages under the Act.

In circumstances where the characterisation of the alleged fault is unclear and may depend on contested evidence, it would not be appropriate to determine this matter on a notice of motion. Ultimately, it would appear to be a matter for the final hearing. It is, accordingly, premature to determine whether s 3A applies and, accordingly, whether the plaintiff is in breach of the prohibition in s 108. This is particularly so in circumstances where, although the plaintiff maintained his contention that the Act did not apply, he has nonetheless submitted a claim under the Act, against the possibility that it may subsequently be held that it does apply.

I can see little point in adjourning the second defendant’s notice of motion. It would not be appropriate to dismiss the plaintiff’s claim against the second defendant before trial since aspects of the claim may fall outside the Act and are therefore not covered by the prohibitions in ss 108 or 109. For the reasons given above, the trial is the appropriate time to determine such questions in a case, such as the present, where it is not presently clear whether s 3A applies to some, all, or none of the particulars of negligence. This issue is likely to turn on contested evidence and involves a judgment which can only be made in light of all of the evidence, as in Adlawan v Recochem Inc.

In these circumstances, I propose to make an order in terms of paragraph 1 of the second defendant’s notice of motion and dismiss the balance of the notice of motion. It is also appropriate to stand the matter over for a period to enable the plaintiff’s compliance with the Act to be regularised and for the plaintiff to provide an amended pleading to reflect an alternative case, based on the Act, if so advised.

When, and if, the plaintiff seeks to file an amended pleading alleging, in the alternative, that he has suffered injuries as a result of a motor vehicle accident in respect of which the Act applies, an order can be made that those aspects of his claim commence from the date on which a certificate under ss 92 or 94 is issued, or from the date on which QBE is joined as a party pursuant to s 79. Such an order would accommodate the prohibition in s 108.

For the reasons set out above, I make the following orders and directions: