Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor [2015] QDC 102

The issue involved whether a respondent could join an insurer as a “contributor” pursuant to s.16(1) of the Personal Injuries Proceedings Act (PIPA) in circumstances where the insurer denied indemnity.

The claimant had received massage therapy from Mr Camac the second respondent who was insured and indemnified by the first respondent. The applicant Mr Shapcott also provided massage therapy to the claimant on the referral from Mr Camac and at his premises. The claimant suffered a personal injury which he alleged was a consequence of the massage treatment and brought PIPA proceedings against Messrs Camac and Shapcott. The first respondent insurer subsequently denied there was a policy in respect of Mr Shapcott and denied indemnity. Mr Shapcott sought to join the insurer as a contributor out of time and hence leave was required.

Dorney QC DCJ

“Contributor”?

[25] Focusing on the meaning of “indemnity” in s 16(1)(a), the applicant relied, for elucidation, on Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd.[1] That decision involved, also, an application to join a contributor. The facts concerned a claimant who suffered personal injury while working at the premises of the applicant in July 1999 and who was employed by the respondent, a labour hire agency, on the day of the incident, pursuant to a labour hire agreement between the applicant and the respondent: at [2]. A potential distinguishing feature was the interplay between PIPA and WorkCover Queensland Act 1996 and whether concurrent actions could be maintained where s 6(2)(b) of PIPA provided that it did not apply to injuries as defined under the other Act. Another potential distinguishing feature was that the respondent to the application was alleged to be a concurrent tortfeasor, and not an insurer. It was, therefore, in that context that Shanahan DCJ held that the fact that the ground of liability sought to be established against the respondent as a contributor was “in relation to a breach of contract” was “irrelevant to the right of the applicant to add a contributor” under the PIPA “scheme”: at [28]. He added that s 16 of PIPA does not confine the ability to add, or seek leave to add, a contributor to circumstances where the grounds on which the proposed contributor is said to be liable must be in relation to a claim for personal injury: at [28]. He further held that, while the primary action under PIPA must relate to personal injury, s 16 “does not confine potential contributors to only those against whom a claim in relation to personal injury can be made”: at [28].

[26] My attention was not drawn to any other case in which a consideration of the ambit of “indemnity” was considered – for instance, it was not an “issue” in Interpacific Resorts (Australia) Pty Ltd v Austar Entertainment Pty Ltd[2] – which would bear upon determining the proper interpretation of it in this context. The second respondent’s contention was that the absence in PIPA of relevant references to insurance (whether it be to an “insurer” or any other reference) means that the context in which “indemnity” is used in s 16(1)(a) is one which, however extensive its width might be otherwise, does not include a claim for indemnity under an insurance policy. At least at first reading, there can be no doubt from, for example, s 11(3) that PIPA explicitly acknowledges that an insurer who has a “relevant insurance policy” can “indemnify” a person under such a policy. Necessarily, it is in the further context, though, that s 11(2) states that the person does not “breach” a term or condition of “any relevant insurance policy” only because the person gives notice under s 11(1).

[27] Furthermore, s 27(1)(b)(ii) of PIPA refers to a “respondent” that “is an insurer of a person for the claim”. That, of necessity, may be able to be confined to a respondent/insurer who admits such liability, if only because the obligation lies on such an insurer to find out information “from” the insured person for the claim about the circumstances of, or the reasons for, the incident. But, of itself, it does not give rise to a “clear presumption” that all indemnity references ought to be limited to those where that “has been granted”. Any apparent anomaly that an absence of disclosure rules (apart from personal injury concerns) might pose can be addressed by postulating that the same absence affects “indemnifiers” that are not such insurers as the first respondent, equally, should they also deny any right to indemnification.

[28] It is also relevant that the Schedule defines “respondent” as a respondent either under s 12(1) or an entity that is added under s 14.

[29] The obligations under s 17 of PIPA which are placed upon a contributor add little to the sum of understanding of whether an insurer of the present kind can be a contributor.

[30] Before turning to the principles governing interpretation, it should be noted that the Schedule defines:

  • “insured” as including “indemnified”;
  • “insured person”, in relation to a claim, as meaning a person who is insured or “purportedly” insured against the claim; and
  • “insurer” of a person in relation to a claim, as meaning the insurer or other entity providing or “purportedly” providing the person cover or “an indemnity against” the claim.

[31] Recently, the Court of Appeal in Fearnley v Finlay,[3] with Jackson J speaking for the Court, reiterated that the method of the modern law of statutory interpretation requires that the task of statutory construction must begin with a consideration of the text itself and “so must the task of statutory construction end”, whilst not also forgetting that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise: at 397 [17], citing numerous High Court cases.

[32] Further, when considering the purpose of the legislation, Jackson J referred to s 14A(1) the Acts Interpretation Act 1954, noting that purpose and intention are objective concepts and that the purpose of a statute is not something which exists outside the statute, though acknowledging that appropriate reference could be had to extrinsic materials: at 398 [26].

[33] Given the first respondent’s approach to this proceeding as articulated by its counsel (particularly in oral submissions), while its adamant assertion that it does not intend to indemnify the applicant may be suggested to be contrary to the factors identified for the achievement of the main purpose of PIPA [in s 4(2)], nevertheless, the final determination must depend upon whether the pre-court procedures do have the purpose of including an insurer such as the first respondent here in the relevant negotiations directed to settlement. Submissions about potential bankruptcy of the second respondent (where indemnity has already been extended to him) and about acts engaged in in “conciliation” discussions potentially leading to prejudice by a possibly imprudent “insured” are interesting but are distractions to the interpretative process.

[34] Acknowledging that this is a question about which reasonable minds can differ, I nevertheless conclude that, for the following reasons, the reference to “indemnity” in s 16(1)(a) of PIPA can include an indemnity under an insurance policy:

  • an insurer can be a “respondent”;
  • a respondent can join a “contributor” who, or that, can be an entity from whom, or which, an indemnity from liability can be claimed;
  • the methods by which a main purpose ofPIPA can be achieved – appropriate, speedy and early resolution – support the concept of all relevant entities having arguable “liability” being made part of the “pre-court procedures”;
  • the meaning of “indemnity” in other parts ofPIPA, besides s 16(1)(a), is consonant with insurance indemnity; and
  • thus, the text ofs 16(1)(a), in context, and upon understanding purpose, supports a wider meaning than indemnity as a joint or concurrent tortfeasor (whether in tort or pursuant to a concurrent obligation under contract) or as a purely contractual indemnifier (outside insurance).

 David Cormack – Brisbane Barrister & Mediator

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