Kenbrad Pty. Ltd. v. Vakauta [2001] NSWCA 204

New South Wales Court of Appeal

CITATION : Kenbrad Pty. Ltd. v. Vakauta [2001] NSWCA 204 FILE NUMBER(S) : CA 40150/00 HEARING DATE(S) : 20/06/01 JUDGMENT DATE : 29 June 2001

PARTIES : Kenbrad Pty. Limited - appellant Falanisesi Vakauta - respondent JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2; Young CJ in Eq at 21

LOWER COURT JURISDICTION : District Court LOWER COURT 8914/99 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Miss S. Norton for the appellant Mr. D. Deakin QC with Mr. R.C. Tonner for respondent SOLICITORS : Brydens Law Office, Liverpool Moray & Agnew, Sydney CATCHWORDS : TORTS - Nelgignece - Action for loss of services - Whether necessary to comply with claims requirements of Motor Accidents Act 1988. D. LEGISLATION CITED : Motor Accidents Act 1988 ss.2A(1), 9, 40(1), 40A, 43, 44, 44B, 48, 49, 50A, 52(1) adn (1A). Marinovski v. Zutti Pty. Ltd. [1984] 2 NSWLR 571 GIO Australia Ltd. v. Robson (1997) 42 NSWLR 439 CASES CITED: Budge v. Kimmorley (1991) 14 MVR 245 Westpac Banking Corporation v. Tomassian (1992) 32 NSWLR 207. Nowlin Pty. Ltd. v. Robson, unreported, 30/10/96. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40150/00 DC 8914/99

MEAGHER JA HODGSON JA YOUNG CJ in Eq. Friday 29th June 2001 KENBRAD PTY. LIMITED V. VAKAUTA JUDGMENT

1 MEAGHER JA: I agree with the reasons of Hodgson JA as set out below. 2 HODGSON JA: This is an appeal brought by leave from a decision of Naughton DCJ, made on 25th February 2000, whereby his Honour dismissed proceedings brought by the appellant against the respondent, on the ground that the early notification provisions in the Motor Accident Act 1988 had not been complied with. 3 The appellant's proceedings were commenced by a Statement of Claim in the District Court of New South Wales filed on 26th November 1999, in which the appellant claimed damages for loss of services of its servant Kenneth Burnett, alleging that on about 21st December 1996 Mr. Burnett received personal injuries from an accident caused by the respondent's negligence in the use or operation of a motor vehicle. Although Mr. Burnett had complied with the early notification provisions of the Motor Accidents Act in respect of his own claim for personal injuries, the appellant did not give prior notice of its claim to the defendant's insurer or any prior details of the economic loss claimed; and the defendant applied to have the proceedings dismissed on the basis of ss.43, 50A(d) and 52(1A) of the Motor Accidents Act. The appellant resisted the application on the ground that these provisions did not apply to a claim for loss of services. 4 The primary judge held that these provisions did apply to the appellant's claim, relying on the decision in GIO Australia Limited v. Robson (1997) 42 NSWLR 439. In the first instance decision in that case, Hamilton AJ gave an affirmative answer to the following question, in relation to the claim made by the plaintiff in that case for loss of services: Whether the third party policy issued by the insurer to the cross-claimant responds to the plaintiff's claim in these proceedings should the plaintiff otherwise be able validly to initiate and maintain that claim, including by meeting necessary requirements for notification of claim under the Motor Accidents Act 1988 if any. 5 The Court of Appeal upheld Hamilton AJ's decision to the effect that the statutory third-party policy referred to in s.9 of the Motor Accident Act applied to an action for loss of services; but the Court of Appeal did not deal with the question whether compliance with the claim requirements of that Act was necessary in relation to such an action. 6 In relation to accidents occurring after October 1999, the Motor Accidents Act 1988 has been displaced by the Motor Accidents Compensation Act 1999, s.142 of which abolishes actions for the loss of services. However, the 1998 Act applies to this case. The relevant sections of the 1988 Act are ss.2A(1), 9, 40(1), 40A, 43, 44, 44B, 48, 49, 50A and 52(1) and (1A). Those sections are in the following terms: 2A(1) The objects of this Act are: (a) to repeal the Transport Accidents Compensation Act 1987 and thereby to abolish the scheme for compensating victims of transport accidents (TransCover) established under that Act, and (b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and (c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and (ii) to introduce a stricter procedure for the making and assessment of claims for damages, and (iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability, and (iv) to give full weight to the need to identify fraudulent claims, deter their lodgment and prosecute those responsible for them, and (v) to encourage recovery from injury and early and effective rehabilitation, where appropriate, as a key feature of the scheme, and (vi) to encourage the speedy, efficient and effective provision of benefits balanced by the need to investigate claims properly and the need to encourage an early return to employment. 9. A third-party policy under this Act is a policy that: (a) insures the owner of the motor vehicle to which the policy relates and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle: (i) if the motor vehicle is not one to which subparagraph (ii) applies - in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road or road related area), or (ii) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 - in the use or operation of the vehicle on any road or road related area in any part of the Commonwealth, and (b) is in the terms of Schedule 1.