HULA v BURGESS [1996] NSWCA 259

HULA v BURGESS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE JJA and ABADEE AJA 19 September 1996

[1996] NSWCA 259

Motor Accidents Act s45 — Whether letter constituted admission of liability purposes of s45

Priestley JA I will ask Abadee AJA to give his opinion first.

Abadee AJA The proceedings the subject of this appeal were heard by Downs DCJ on 20 and 21 September 1995 and decided on 22 September 1995. The appellant claimed damages for personal injuries sustained in a motor vehicle accident on 6 February 1993. By her statement of claim issued in January 1994, she claimed that the accident occurred on the date already mentioned whilst she was travelling in South Dowling Street, Surry Hills. Notice of grounds of defence were filed of the respondent in April 1994. The defence was filed, or appears to have been filed, by the solicitors for the respondent and on behalf of its third party insurer and it contained the usual denials, including that of negligence. There was also pleaded contributory negligence on the part of the appellant.

Proved in the plaintiff's case was a letter of 26 May 1993. It appears that in that letter the respondent's third party insurer had advised the appellant's solicitors in the following terms:

"We advise that for the purposes of the Motor Accidents Act 1988 (as amended). We admit that our Insured is 50 per cent liable for causing the abovementioned accident, partial admission being cause of your client's contributory negligence.

This admission is purely for the purposes of the Motor Accidents Act and does not in any way constitute an admission of liability for matters which may not be the subject of a claim under the Act, nor does it constitute any admission by the owner or driver of the abovementioned vehicle."

This letter appears to have been written by the respondent's insurer pursuant to the provisions of s45 of the Motor Accidents Act 1988. Curiously enough, it was the subject of a notation "without prejudice". That is an oddity in respect of a letter sent, one might have thought, pursuant to the provisions of s45 of the Act.