PARTIES:	SANTA TERESA HOUSING ASSOCIATION INC

TITLE OF COURT: JURISDICTION: FILE No: DELIVERED: HEARING DATES:
JUDGMENT OF:

CATCHWORDS:

V

JAMIESON, David COURT OF APPEAL (NT) SUPREME COURT (NT) No. AP26 of 1991
Darwin 17 December 1993
15 March 1993, 17 December
1993
Martin CJ., Kearney &
Angel JJ.

Vehicles and traffic - Statutory compensation in respect of motor vehicle accidents - Northern Territory - Liability of statutory office in
-relation to damages for physical injury or death -
Motor Accidents Compensation Act, 1979 (NT), s6.
Employment law - Rights and liabilities as between employer and third persons - Liabilities of employer for torts of employee - statutory liability scheme - Purpose of scheme - Effect of scheme - Application of statute retrospective -
Law Reform (Miscellaneous Provisions) Act 1956 (NT), s22A.
Lister v Romford Ice (1957) AC 555, referred to. Statute - Interpretation - Indemnity proceedings -
Interaction of legislation - Whether claim can be made against only one of two funds or either of them

Motor Accidents Compensation Act, 1979 (NT), s6. Workers' Compensation Act, 1949 (NT),
Law Reform (Miscellaneous Provisions) Act, 1956 (NT),
s22A.

Statute - Interpretation - Indemnity proceedings - Interaction of legislation - Policy of legislation - Literal interpretation - Unambiguous wording
Motor Accidents Compensation Act, 1979 (NT).
Law Reform (Miscellaneous Provisions) Act, 1956 (NT). Workers' Compensation Act, 1988 (TAS), s97.

Motor Accidents (Liabilities and Compensation) Act, 1973
(TAS), s14.

National Insurance Company of New Zealand Ltd v Blake (1984) 1 MVR 193, referred to.
statute - Interpretation - Particular word or phrase - "Law applicable in the place where the accident occurred" - Whether includes law of the Territory -
Motor Accidents Compensation Act, 1979 (NT), s6. Statute - Interpretation - Particular word or phrase -
"Indemnity" - Unqualified - Ordinary meaning -
Law Reform (Miscellaneous Provisions) Act, 1956 (NT). statute - Interpretation - Particular word or phrase -
"Notwithstanding any other law in force in the Territory" - Giving Act full effect - Operation of Act overrides other statutory provisions -
Law Reform (Miscellaneous Provisions) Act, 1956 (NT).
REPRESENTATION:
Counsel:
Appellants: DJ	Bleby QC Respondents: s Walsh
Solicitors:
Appellants: Cridlands Respondents: ward Keller
Judgment category classification: B Judgment ID Number: mar93027
Number of pages: 12

LOCAL DISTRIBUTION

mar93027

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. AP26 of 1991

BETWEEN:
SANTA TERESA HOUSING ASSOCIATION INC
Appellants

AND:
DAVID JAMIESON
Respondent

CORAM:	MARTIN CJ., KEARNEY & ANGEL JJ.

REASONS FOR JUDGMENT
(Delivered 17 December 1993)

MARTIN CJ:
The issue in this appeal arises from the aggregation of the following events which came together on 29 June 1984:
The plaintiff in the action, Mr Johnson, was injured in a motor vehicle accident in the Northern Territory.
Mr Johnson was an employee of the appellant.
The appellant was the owner of the motor vehicle.
The respondent was in control of the motor vehicle.
The motor vehicle was, by definition, for the purposes of the Motor Accidents (Compensation) Act ("Motor Accidents Act") a "Territory motor vehicle".

The respondent was also an employee of the appellant.
The appellant had a policy of insurance or indemnity for an amount of at least $200,000 in respect of his liability, independently of the Workers' Compensation Act, for injury to Mr Johnson.

In the action, brought by Mr Johnson against the appellant and the respondent, the respondent was found to have been negligent in his control of the motor vehicle and the appellant vicariously liable for it.	Judgment was entered against them for damages for the injury sustained by the plaintiff in the sum of $50,000.	At the time of this accident the common law rights to damages arising from use of motor vehicles had not been entirely replaced by the present scheme under the Motor Accidents Act.	In broad terms it then provided for compensation and limited damages to be paid to persons entitled to the same from a fund established by contributions made by all persons registering motor vehicles in the Territory.	The fund was administered by the Territory Insurance Office ("the Office").	The liability of the Office in relation to damages was fixed by s6 of that Act:
116.	OFFICE TO INDEMNIFY CERTAIN PERSONS

Subject to subsection (2), where a person is liable to pay damages in respect of the death of or injury to any person in or as a result of an accident -
{a)		that occurred in the Territory and at the time of that accident the first-mentioned person was in control of a motor vehicle other than a Territory motor vehicle; or

that occurred in any place, whether or not in the Territory, and at the time of that accident the first-mentioned person was -
the owner of a Territory motor vehicle involved in the accident and in respect of which he was so liable; or
in control of a Territory motor vehicle,
the Office shall indemnify him or his personal representatives to the extent of his liability.
The Office is not bound to indemnify a person under subsection (1) where that person is already indemnified under any contract of insurance or under the law applicable in the place where the accident occurred."

After the accident there was enacted s22A of the Law Reform (Miscellaneous Provisions) Act ("The Law Reform Act"), but it applied to all torts whether committed before or after the date when it came into force (about a fortnight after the date of the accident in which Mr Johnson suffered his injury). It reads:
1122A RIGHTS IN CASES OF VICARIOUS LIABILITY
Notwithstanding any other law in force in the Territory, or the provisions, express of implied, of a contract or agreement, where an employee commits a tort for which his employer is vicariously liable -
the employee shall not be liabile (sic) to indemnify the employer in relation to the vicarious liability incurred by the employer; and
unless the employee is otherwise entitled to indemnity in relation to his liability, the employer shall be liable to indemnify the employee in relation to the liability incurred by the employee,
arising from the commission of the tort.
Where an employer is proceeded against for the tort of his employee, and the employee is entitled in p rsuance of a policy of insurance or contract of

indemnity to be indemnified in relation to a liability that he may incur in relation to the tort, the employer shall be subrogated to the rights of the employee under the policy or contract in relation to the liability incurred by the employer, arising from the commission of the tort.
Where a person commits serious and wilful, or gross, misconduct in the course of his employment and the misconduct constitutes a tort, subsection
(1) shall not apply in relation to the tort."

All three pieces of legislation, Workers' Compensation Act, Law Reform Act and Motor Accidents Act, make provision in respect of indemnity in favour of persons against whom damages are ordered for personal injury to others.		The first, as _already mentioned, by way of compulsory insurance, provides for the liability of an employer to the employee independently of the statutory liability for compensation imposed by that Act.	Such a liability was established by the judgment obtained by Mr Johnson against the appellant.	Next, the Motor Accidents Act provided for the Territory Insurance Office to indemnify a person liable to pay damages in respect of injury to a person as a result of an accident involving a Territory motor vehicle, of which the person liable was the owner or in respect of which that person was in control at the time of the accident, provided that person was not already indemnified (s6).	The appellant was the owner of the motor vehicle, but was already indemnified by the insurance under the Workers' Compensation Act.	Unless he was also already indemnified, the respondent was entitled to indemnity from the Office in respect of his liability to Mr Johnson arising from his control of the vehicle.

It is at this point that the effect of s22A of the Law Reform Act is called into question.	It was enacted to overcome the financial burden which might be placed upon an employee arising from the application of the rule in Lister v Romford Ice (1957) AC 555, where the employee commits a tort for which his employer is vicariously liable.	The legislation provides instead that, notwithstanding any other law in force in the Territory, an employee shall not be liable to indemnify his employer in relation to that vicarious liability and, unless the employee is otherwise entitled to indemnity in relation to his liability, the employer shall be liable to indemnify .the employee in relation to the liability incurred by the employee arising from the commission of the tort (s22A(l)).
The policy of the legislature at the time of the incident giving rise to the plaintiff's claim in this case, was that a person suffering personal injury in his capacity as an employee or in his capacity as a passenger i		a motor vehicle should be able to take action for recovery of his loss secure in the knowledge that there was a fund from which his damages would be met, that the person presumably least able to meet such a liability, an employee, would be absolved from personal pecuniary responsibility for the loss, but that those standing together as employers or owners of motor vehicles should, either by insurance or under a statutory scheme, pool their resources through premiums or statutory contributions, so as to provide the fund to meet the damage.	The juxtaposition of the appellant as employer and motor vehicle

owner in respect of the employee controlling the motor vehicle, and the employee that suffered the injury in it, together with the statutory provisions set out above, calls for a decision as to whether only one of the two funds should ultimately bear the loss or whether a claim for indemnity might be made upon either of them.
When s22A of the Law Reform Act was enacted the Parliament was aware of the scheme under the Motor Accidents Act and did not expressly take it into account.	It must be taken to have known that the Office was not bound to indemnify a person in the position of the appellant or respondent, where such a person was already indemnified under any contract of insurance or under any law in the place where the accident occurred (s6(2)).	That was certainly the position of the appellant in relation to the insurance it had acquired  by force of the Workers' Compensation Act.	The respondent had no such contractual indemnity, but was the Office relieved of its liability to indemnify him because he was already indemnified under the law applicable in the place where the accident occurred?	If that law does not include a law of the  Territory, then there was no suggestion he held such an indemnity.		If that law includes a law of the Territory, then s22A comes into play.	In s6(1)(b) of the Motor Accidents Act it is made clear that the liability for the indemnity may  arise as a result of an accident which occurred in any place, "whether or not in the Territory", and there is no reason why the release from that liability described in subsection (2) ought not to arise in circumstances which are as broad as

those in which the liability may arise.	The "place" referred to in subsection (2) includes the Northern Territory.	If it were not so, then any law of the Commonwealth which provided the appropriate indemnity could not be relied upon as releasing the Office from its statutory obligation, and there is no reason why a law of the Territory ought not to operate so as to have the alleviating effect.
It is in that light that s22A of the Law Reform Act comes to be considered.	Taking into account its terms, the appellant was vicariously liable for the tort of the respondent, the respondent was not liable to indemnify the appellant .in relation to that vicarious liability and, unless the respondent was otherwise entitled to indemnity in relation to his liability, the appellant was liable to indemnify him in relation to the liability incurred by him arising from the commission of the tort.	The word "indemnity" is not qualified and in its ordinary meaning must embrace an indemnity however derived.		The use of the phrase "Notwithstanding any other law in force in the Territory", evinces an intention that the operation of the Law Reform Act should not be fettered by any other law in force in the Territory and that any obstacle to the operation of the statute be removed.	Accordingly, the Motor Accidents Act should not be read so as to create a barrier to the operation of the Law Reform Act to its fullest extent.	The Law Reform Act provides that, in the last resort, an employer shall indemnify the employee, and will be relieved from that liability if the employee is otherwise entitled to an indemnity.	The Motor Accidents Act provides for the

employee, who is in control of a Territory motor vehicle in which a person is injured as a result of an accident, to be indemnified in respect of his liability to pay damages to that person unless he is already indemnified under the law.
Section 22A(l)(b) of the Law Reform Act provides for such an indemnity from the employer unless the employee is otherwise entitled to indemnity.	Therefore giving to the Law Reform Act its fullest effect, the employee is not entitled to the statutory indemnity from the employer because he is otherwise entitled to an indemnity, that is, under the Motor Accidents Act.	The general exemption of the liability of the Office to indemnify _a person referred to in subsection (2) of s6 of the Motor Accidents Act does not remove the liability.	The Law Reform Act applies because its provisions are to prevail and  it does that by overriding in subsection (2)  of s6 of the Motor Accidents Act the law in force in the Territory which presents an obstacle to the operation of s22A(l)(b) of the Law Reform Act.	Accordingly, the employee is entitled to an indemnity from the Office under the Motor Accidents Act, and the employer is not liable to indemnify the employee in relation to the liability incurred by the employee.
His Honour the learned trial Judge came to a different conclusion.	He had before him an Indemnity Notice given by the appellant to the respondent in the proceedings brought by the plaintiff against them both, the appellant asserting it was entitled to that indemnity pursuant to s22A of the Law Reform Act.		The learned trial Judge concluded his detailed reasons by saying that "the intention of the

legislature was that the loss was to be borne by the employer and ulti ately his insurer ...• this is consistent with •.• the submission to the effect that the indemnity referred to in s22A(l)(b) did not include a statutory indemnity".		I respectfully disagree with that view.	His Honour also thought that his decision was consistent with the overall object of the Motor Accidents (Compensation) Act, and accompanying legislation, as a means of controlling the cost of contribution fees paid by owners of motor vehicles and it would not be consistent with the objective of keeping contribution fees paid by motorists to a minimum if a loss which had.to be paid by the Office in circumstances such as those arising in this case could not be recouped.	With respect, although considerations such as those are worthy of consideration, they can not prevail over the clear intention of the legislature to be gleaned from the wording of the legislation itself.	It may be that its primary objective was to ensure that a person suffering injury as a result of a motor vehicle accident should be entitled to recover damages from more than one source if more than one source could be made available.	That was the situation in respect to enforcing judgments against joint tortfeasors at common law.
For these reasons I would order:
That the order of 22 November 1991, that the respondent is entitled to indemnity by the appellant against any amount which the respondent is called upon to pay to the plaintiff by reason of the

judgment in favour of the plaintiff in these proceedings, be quashed.

As to costs:
That the order, 28 May 1992, that the appellant pay the respondent's costs on the indemnity notice, be quashed.
That the order of 28 May 1992, that the appellant indemnify the respondent from so much of the costs of the action which the respondent is called upon to pay to the plaintiff, be quashed.
That the respondent pay the appellant's costs on the indemnity notice to be taxed.
The respondent pay the appellant's costs of this appeal to be taxed.

KEARNEY J:
I respectfully agree with the reasons and conclusions of the Chief Justice, subject to the following observations.
I consider that it is strongly arguable that the expression "the place where the accident occurred" in s6(2) of the Motor Accidents (Compensation) Act in its context refers solely to a place other than the Territory.	If this be so, there is no problem in determining how the two Acts interact: the respondent is entitled to an indemnity by the Office under s6(1) and his employer is therefore not liable to indemnify

him - see s22A(l)(b) of the Law Reform (Miscellaneous Provisions) Act.
If this is not the correct construction of s6(2), I consider that the words "Notwithstanding any other law in force in the Territory" which preface s22A indicate the correct approach to breaking the apparent gridlock created by s22A(l)(b) and s6(2), as the Chief Justice has pointed out.
On the face of it these provisions are circular: s6(2) appears to involve a reference to s22A(l)(b) which in turn refers back to s6(2) through s6(1).	Their construction appears seamless, presenting a problem akin to a legislative "Catch 2211 •	I acknowled e, with respect, the weight of the considerations which moved the learned trial Judge to his conclusion as to the proper construction.		Nevertheless, I am persuaded that in truth the legislative intention to be imputed to the Legislative Assembly, as expressed and implied in its later enactment, the Law Reform Act, is as the Chief Justice has stated.	This no doubt involves giving a strained construction to the words "the law applicable in the place where the accident occurred", in s6(2).
I note that the policy decision as to where the burden should ultimately lie in a case such as this, as between the workers compensation insurer and the no-fault motor vehicles insurer, can be dealt with simply and explicitly by the legislature as it was in Tasmania; see, for example, s14(3) of the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), the concomitant s97(1)(c) of the

Workers Compensation Act 1988 (Tas), and National Insurance Co. of New Zealand Ltd v Blake (1984) 1 MVR 193.
I concur in the orders proposed by the Chief

Justice.

ANGEL J: 
I agree with the learned Chief Justice that the

respondent has no right of indemnity against the appellant under s22A of the Law Reform (Miscellaneous Provisions) Act because, as the driver of a Territory motor vehicle, the respondent was, pursuant to s6(l)(b) of the Motor Accidents (Compensa ion) Act, "otherwise entitled to indemnity in relation to his liability" for the purposes of s22A (l)(b) of the Law Reform (Miscellaneous Provisions) Act.
I agree that the order of 22 November 1991 that the respondent is entitled to be indemnified by the appellant against any amount which the respondent is called upon to pay to the plaintiff by reason of the judgment in favour of the plaintiff in these proceedings should be set aside.	I also agree that the order of 28 May 1992 that the appellant pay the respondent's costs and the indemnity notice be set aside, and that the order of the same day that the appellant indemnify the respondent from so much of the costs of the action which the respondent is called upon to pay to the plaintiff be also set aside.	The respondent should pay the appellant's costs of the indemnity notice and the appellant's costs of the appeal.