GODHINO v WILLARD & ANOR

Supreme Court of the Northern Territory of Australia Martin J.
2, 3, 4, 5, 6 November and 16 December 1987 at Darwin

Damages - negligence - notice given - Motor Accidents (Compensation) Act (N.T.) section 41(3) - effect thereof

Words and phrases - "Resident of the Territory" - Motor Accidents (Compensation) Act (N.T.) section 41

Words and phrases - "Notwithstanding anything in this Act" - Motor Accidents (Compensation) Act (N.T.) section 41

Case considered:
Boyd v Boynton 28 N.T.R. 1

Case referred to:
Re: Bread Carters (Cumberland) Board (1922) AR NSW 73

Counsel for Plaintiff	G.E. Hiley Q.C.
Leading	J.E. Reeves

..

Counsel for First Defendant	T.J. Riley

Counsel for Second Defendant Leading

T.I. Pauling Q.C.
Nobbs

mar870014a

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.496 of 1986

BETWEEN:
VICTOR GODHINO
Plaintiff

AND:
TRACY WILLARD
First Defendant

AND:

ROBERT JOHN COLLINS
Second Defendant

CORAM:	MARTIN J,

REASONS FOR JUDGMENT
(Delivered 16 December 1987)

[This action was for damages for negligence arising from a motor vehicle accident in the Northern Territory on
22 November 1981.

Having held that the second defendant was wholly responsible for the plaintiff's loss, His Honour dealt with the effect of the Motor Accidents (Compensation) Act upon the plaintiff's claim, and the following is His Honour's reasons for holding that a notice having been given to the plaintiff under section 41(3) of that Act, the plaintiff was not limited by the Act as to the nature or the amount of the damages which could be sought.

The following extract from the judgment deals with that subject.]

MOTOR ACCIDENTS (COMPENSATION) ACT

The Motor Accidents (Compensation) Act came into operation on 1 July 1979 (section 2) and as in force at the time of the accident, provided in section 5 as follows -

"(1) Subject to subsection (2) no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory.

Subject to subsection (3), nothing in subsection (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life.

A person who has received or has elected to receive a benefit under section 17 cannot commence or continue an action referred to in subsection
( 2) n •

The Act has been since amended extensively and unless otherwise indicated, references to the provisions of the Act are to the provisions in place at the time of the accident.

The interpretation provisions in section 4 include the following definitions -

Relevantly, "accident means -

"(a) in relation to the Territory - an occurrence -

on a public street, as defined in the Motor Vehicles Act, caused by or arising out of the use of a motor vehicle ...

occurring on or after 1 July 1979, and which results in the death of or injury to a person".

"resident of the Territory" means -

"(a) in relation to an accident occurring in the Territory - a person who has resided in the Territory for a continuous period of 6 months or who has entered the Territory with the intention of so residing; and

in relation to an accident occurring outside the Territory - a person referred to in paragraph (a) -
who has not, since so residing, resided outside the Territory for a continuous period of 6 months; or
who has retained in the Territory his primary dwelling house or employment,

but does not include a person who has left the Territory with the intention of no longer residing in the Territory.•

The plaintiff argues that, since he left the Territory after the accident with the intention of no longer residing in the Territory, he is not included within the definition of "resident of the Territory" and therefore is not affected by section 5.

Part of the argument on this issue was directed to whether or not the last three lines in the definition ("the proviso") governed both paragraphs (a) and (b) thereof or only paragraph (b).	Various hypothetical examples were put forward with a view to assisting in the resolution of that question and I have considered and tested them and others against the variety of circumstances envisaged in those two paragraphs.	However, I do not think that in doing so any clear assistance is to be derived for deciding whether the proviso applies to both paragraphs or, as was contended by the defendants, only to paragraph (b).	In some hypothetical circumstances the proviso appears to be redundant, in others to produce an absurdity and in others to have a clear application.		Whether the proviso is of any use in any and every conceivable circumstance is not the point.

The basic issue is as to the time or times at which the circumstances of a person injured in an accident is to be considered to determine whether or not that person falls within the definition.	In this regard the phrases "in relation to an accident" in both paragraphs is important.
The phrase, "in relation to an accident• includes the time of the accident and the various facts and circumstances set out in the definition relate to that time.	The tense is consistent throughout, in paragraph (a) "has resided" and "has entered", in paragraph (b) "has not resided" and "has retained" and in the proviso "has left".	If these words are related to the accident, as both parts of the definition

require, then they consistently operate at the time of the accident.	Accordingly, the proviso only applies to a person who has left the Territory with the necessary intent at that time.	Such a person is neither bound by the Act or entitled to the benefits provided by it.	If at the time of the accident the injured person is a resident of the Territory, the Act applies and leaving the Territory thereafter with the necessary intent does not affect it.

There is no dispute that the plaintiff was a resident of the Territory within the meaning of paragraph
(a) of the definition at the time of the accident.	I hold that notwithstanding his later leaving the Territory with the intent of no longer residing in the Territory, he remains a resident of the Territory for the purposes of the
Act.

There are references in the Act, which may cast some doubt upon this interpretation of the definition.	For example, in section 13(1)(a) reference is made to a person "who was, at the time of the accident, a resident of the Territory".	It is suggested that that indicates that a person may be a resident of the Territory for the purposes of the Act at some other time.	I consider the words "at the time of the accident" are redundant.	The definition of "resident of the Territory" was later amended to include the words "a person who at the time of the accident".	For the reasons given, it was not necessary to do that and those

words must have been inserted out of caution so as to avoid the doubts which arose in this case. Whether that be so or not, the reference to "at the time of the accident" remains in section 13(1)(a).

Section 5 of the Act relevantly provides that no action for damages shall lie in the Territory in respect of the injury to a resident of the Territory as a result of an accident that occurred in the Territory, but that a person is not thereby deprived of the right to bring an action for damages for pain and suffering or loss of amenities of life. By section 39, the Court is limited in making any award of such damages to $100,000.

Disregarding section 5(3) for this purpose, the section did not purport to deprive a person of a right of action for damages.	It prohibited the bringing of an action based on that right in the Territory, except where the action was limited to the specified heads of damage.	The cause of action and the right to bring an action in any place, other than the Territory, was not affected by the
statute.

The Act provides various benefits for the plaintiff and he has claimed and been paid a number of them, such as those for loss of earning capacity under section 13 and medical and rehabilitation expenses under section 18.	Those benefits are paid by the Territory Insurance Office (T.I.O.)

which was established under the Territory Insurance Office Act and pursuant to powers under that Act.	Under the Motor Vehicles Act the compulsory third party insurance requirements are abolished.	The Registrar collects what are called compensation contributions upon the grant or renewal of registrations of motor vehicles.	After certain adjustments the Registrar pays those contributions to the
T.I.O.	In addition to the provision of the statutory benefits, T.I.O. is also obliged by section 6 of the Motor Accidents (Compensation) Act to indemnify certain persons who are liable to pay damages in respect of death or injury to any person in or as a result of an accident.	It carries the responsibility for paying the benefits and providing for the indemnity.

T.I.O. is enabled to attempt to recover monies paid out in benefits.	By section 38 it may sue for and recover as a debt from, inter alia, the owner or driver (other than a resident of the Territory) of a motor vehicle that was not, at the time of the accident, a Territory motor vehicle (as defined) who is, or but for section 5 would be, liable to pay damages in respect of the injury of a person in or as a result of an accident, the amount that the Office has paid in respect of that injury.	That is not what happened in this case but it shows .that the legislature intended that
T.I.O. should be enabled to recover its outlays.

Section 41 is as follows -

"(1) In this section "authorized insurer" and "third-party policy" have the same meaning as they respectively have in Part V of the Motor Vehicles Act as in force immediately before the commencement of this Act.

Notwithstanding anything in this Act, where an action in respect of the death or injury of a person in or as a result of an accident would have lain under the law applicable immediately before the commencement of this Act had the accident then occurred, nothing in this Act shall apply so as to prevent a person pursuing such action against a person who, at the time of the accident, was the holder of a current third-party policy.
Notwithstanding anything in this Act, the Board may, as a condition of paying or continuing to pay a benefit under this Act -
in a case referred to in sub-section (2);
or
in a case where a person entitled to a benefit under this Act has a right of action against any other person as a result of the accident in respect of which that entitlement arose,

require the person to commence or continue an action against the person holding a current third-party policy or that other person, as the case may be.
Where a person recovers damages as a result of an action commenced or continued in pursuance of a requirement under sub-section (3) -
the payment of benefits under this Act to that person shall cease; and

there shall be reimbursed to the Office from any amount so recovered the amount of benefits under this Act paid by the Office to or on behalf of that person, and that amount shall be paid to the Office by the authorized insurer concerned, in a case referred to in
sub-section (2), or the person against whom judgment is given in any other case, before any amount of the judgment (other than the costs in the action) are paid to
the person.
Where a person commences or continues an action in pursuance of a requirement under

sub-section (3), and that action is unsuccessful or the amount recovered is not sufficient to reimburse the per on for the costs in bringing the action, the Office shall pay to the person the reasonable amount of those costs or the amount by which the amount recovered falls short of the amount of those costs, as the case may be".

There is no prescribed form of notice under section 41(3) of the Act but a notice was given by T.I.O. to the plaintiff in writing dated 12 December 1984 which, proceeding on the basis that action had already been
commenced by the plaintiff against Collins, required him to continue the action.	A second notice was received by the solicitor for the plaintiff on about 29 October 1987 which again, proceeding on the basis that an action had been commenced against Collins, required the plaintiff to continue that action.		It was not argued that those notices or either of them were not sufficient as to form or otherwise to be a notice for the purpose of section 41(3)(b).	The solicitor for the plaintiff gave evidence that after receipt of the second notice there was a particular conference involving the plaintiff himself and counsel concerning the future conduct of the action and that a firm decision was then made to proceed with the "full common law claim".

The plaintiff says that as a consequence of the giving of the notices by the Board (which means the Board of the T.I.O. established under the Territory Insurance Office Act) he is entitled to all such damages as he could claim

arising from the accident without the limitations imposed by section 5.		The defendant, Willard (who was driving a Territory registered motor vehicle), supported that argument.	The defendant, Collins (who was driving a South Australian registered motor vehicle), says that the plaintiff can only recover what is permitted by section 5.

The plaintiff would be entitled to bring an action for damages for pain and suffering and loss of amenities of life and to an award not exceeding $100,000, whether a notice had been given by the Board or not, if section 5 applied to him.

Section 41(2) saves the right of a person injured in an accident to pursue an action against a person who at the time of the accident was the holder of a third party policy.	This subsection recognises that as at the commencement of the Act, 1 July 1979, there would be motor vehicles registered in the Territory in respect of which a third party policy was current under the then provisions of the Motor Vehicles Act.	That saving is expressed to be "Notwithstanding anything in this Act", which no doubt is specially directed at section 5.		Stroud's Judicial Dictionary refers to old cases in which a phrase similar to "Notwithstanding anything in the Act" was held to mean "as if this Act had not been made".	Re Bread Carters (Cumberland) Board (1922) A.R. (N.S.W.) at 73 shows that the purport of such a phrase in a statute is to mark and remove

an obstacle to the intended legislation.	Dealing with sections 41(1) and 41(2) Forster	C.J. of this Court in Boyd v Boynton 28 N.T.R. 1 at p.5, held that the plaintiff in that case could pursue an action against the holder of the current third party policy and -

provided she proves negligence by the first defendant she is not restricted to damages for pain and suffering and loss of amenities of life but may also recover damages for loss of earning capacity and for future medical expenses and the like".

I respectfully agree with His Honour.

If the plaintiff in that case had been receiving benefits under the Act and was given a notice by the Board under section 41(3)(a), I see no reason why the heads of damage which she was entitled to claim should be any different than those to which she was entitled when commencing and continuing her action without such a notice. Apart from identifying the two categories of persons against whom action may be taken after the giving of notice, sections 41(3) and (4) make no distinction as to the consequences of the giving of the notice.

In the circumstances of this case, section 41(3) provides -

"Notwithstanding anything in this Act, the Board may, as a condition of continuing to pay a benefit under this Act, in a case where a person entitled to a benefit has a right of action against any

other.person as a_result of the accident in respect of which that entitlement arose, require the person to commence or continue an action against that other person".

Has the plaintiff a right of action against any other person?	I consider he has.	Section 5(1) does not deprive a person of a right of action.	It says only that no action for damages shall lie in the Territory, and section 5(2) recognises that the right of action exists but limits the kind of damages which may be sought.	The  right  of action referred to in section 41(3)(b) is not the right referred to in section 5(2).	It is any right against any other person "as a result of the accident", not as a result of the Act.	The "damages" referred to in section 41(4) are not in any way expressly limited and it should not be implied that they are limited to those referred to in
section 5(2).

Consideration of examples as to the results which might flow from the application of section 41(4) in a hypothetical case, or indeed this case, do not assist in the interpretation of section 41(3).	The Board has a discretion as to whether or not it will give notice under section 41(3) and it may pay regard to the circumstances of each case before making a decision to do so.	If a decision is made to give notice, then the consequences flow from the operation of the Act and ought to be reasonably predictable in any
given case.

I hold that a notice having been given under section 41(3), the plaintiff is not limited by the Act as to the nature or amount of the damages which may be sought, and the Court is not limited as to the award it sees fit to make by the Act.

[His Honour then proceeded to assess damages.]