K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
157 CLR 30960 ALR 509
(Judgment by: Deane J)
K & S Lake City Freighters Pty Ltd
v Gordon & Gotch Ltd
Judges:
Gibbs CJ
Mason J
Brennan J
Deane JDawson J
Subject References:
Contract
Statutes
Judgment date: 1 August 1985
Canberra
Judgment by:
Deane J
On 30 December 1981 K & S Lake City Freighters Pty. Limited ("the carrier"), by a sub-contractor, collected from the premises of Gordon & Gotch Limited ("the consignor") in the Sydney suburb of Rosebery certain goods for carriage to Adelaide. At the time when the goods were so collected, the sub-contractor's driver was given a consignment note which had been signed on behalf of the consignor. There was attached to the consignment note a document headed "CONDITIONS OF CARRIAGE K & S LAKE CITY FREIGHTERS PTY LTD". Condition 2 of those conditions provided that the consignment "shall be subject to these conditions and shall be governed by the law of South Australia". Condition 4 provided :
"The carrier shall not in any circumstances (except where any statute otherwise requires) be under any liability whatever (whether in contract, tort or otherwise) for any loss or damage to or mis-delivery, delayed delivery or non-delivery of the goods or any of them whether in transit or in storage or otherwise nor for any consequential loss of any kind whatever whether such loss, damage, mis-delivery, delayed delivery, non-delivery or consequential damage is caused or alleged to have been caused by the negligence or wrongful act or default of the carrier or its servants or agents or sub-contractors or the servants or agents of any sub-contractors or by any other cause whatever."
The goods consigned, which were valued at $55,557.14 and were the property of the consignor, were lost in transit in consequence of a collision in New South Wales when the driver of the sub-contractor's vehicle, one Wymark, drove his truck into a utility which was travelling in the opposite direction. The police report indicates that the collision was caused by Wymark's negligent driving. The consignor sued the carrier in the Supreme Court of South Australia for damages for loss of the goods. In the course of the pleadings it emerged that the carrier relied upon the exculpatory provisions of Condition 4 of the Conditions of Carriage attached to the consignment note. The consignor, for its part, claimed that any conditions of carriage which purported to relieve the carrier from liability for damages for negligence were void by virtue of the operation of s 133 of the Motor Vehicles Act 1959 (SA) ("the Act"). By an agreed case stated pursuant to s 49 of the Supreme Court Act 1935 (SA), the parties reserved for the consideration of the Full Court the following question:
"Does s 133 of the Motor Vehicles Act, 1959 (as amended) apply to the contract for the carriage of goods contained in the said consignment note?."
The Full Court (King C.J., Legoe and Cox JJ.) answered this question in the affirmative. The present appeal is brought, by special leave, from the judgment of the Full Court to that effect.
Section 133 of the Act provides as follows:
"Any contract (whether under seal or not) by virtue of which a person contracts in advance out of any right to claim damages or any other remedy for the negligence of any other person in driving a motor vehicle shall to that extent be void."
It was common ground on the hearing of the appeal in this Court that, if Condition 4 of the Conditions of Carriage attached to the consignment note was a contract of the kind described in s 133, the answer given by the Full Court to the question reserved was correct. The only ground upon which it was sought, on behalf of the carrier, to maintain that the contract contained in the consignment note was not a contract of that kind was that the provisions of s 133 should be read down so that they applied only to an attempt by a natural person to contract out of a claim for damages in respect of death or bodily injury whereas, in the contract contained in the consignment note, the purported contracting out had been by a company (the consignor) and related to a claim in respect of loss of or damage to property. Being, as I am, in substantial agreement with the judgment of Cox J. (with which King C.J. and Legoe J. agreed) and with the additional comments of Legoe J. in the Supreme Court, I am able to state briefly the reasons which lead me to conclude that the provisions of s 133 of the Act cannot be so read down or confinedend.
The words of s 133 must, of course, be read in their context in the Act and in the particular Part of the Act in which they are found (Part IV) (see, generally, Cross, Statutory Interpretation (1976), pp.44ff., 61ff., 99ff.; Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), p 31). That having been acknowledged, the starting point of the construction of s 133 must be the actual words of the section. The provisions of the section are complete on their face. There is nothing to indicate that their invalidating effect is dependent upon interaction with or the operation of the provisions of some other section or sections. Nor is there any suggestion of ambiguity in so far as they refer to contracting out of "any right to claim damages or any other remedy for the negligence of any other person in driving a motor vehicle" (underlining added). The words of the section are plainly apposite to embrace "(a)ny contract" by virtue of which "a person" contracts out of "any" right to claim (for negligence in driving a motor vehicle) damages for death, bodily injury, property damage or other loss. As a matter of language, one seeks in vain for anything in the section itself which would warrant confining its plain words so that they refer only to a contract by which "a person" contracts out of a right to claim in respect of death or bodily injury.
The main argument on behalf of the carrier was that the provisions of s 133 should be confined by reason of the subject matter of the other provisions of Part IV. As has been said, the words of s 133 must be read in their context in Part IV and in the Act as a whole. It appears to me however that, even when they are so read, the plain words of the section cannot, by any legitimate process of statutory construction, be constricted or read back so as to exclude, from the words "any right to claim damages or any other remedy", any right to claim damages or any other remedy for anything other than death or bodily injury. To the contrary, there are other provisions in Part IV which tend to negate, rather than support, any thesis that the provisions of Part IV in general or of s 133 in particular must be confined to apply only to claims for damages for death or personal injury. In particular, the predecessor to s 107, which was introduced contemporaneously with the predecessor to s 133, amended and re-enacted an earlier provision by removing an express limitation to death or personal injury and referring instead to "a policy of insurance whether under this Part or otherwise in relation to a motor vehicle". To adopt the conclusion drawn by Cox J., "the generality of language in s 133 ... (was) not unprecedented" and "it would be very difficult to argue that the liability it creates was intended by Parliament to be confined to a liability with respect to death or bodily injury". Moreover, as Cox J. pointed out, the "ancestor" of s 134, introduced contemporaneously with the predecessor to s 133, was quite soon after "expressly extended to a claim or action for damages for injury to the property of any person arising out of the use of a motor vehicle". Section 134, therefore, became no longer confined to claims in respect of which the compulsory insurance provisions of Part IV apply but applies to property damage in respect of which there may be no insurance at all. In summary, Part IV contains provisions contemporaneous in their origins with s 133 which were demonstrably intended by the Legislature to apply to claims of the type involved in the present case.
On the other hand, it must be conceded that the other provisions of Part IV provide a somewhat inappropriate context for a provision which operates to render void, in a commercial contract for the carriage of goods , a condition to the effect that the carriage should be at the risk of the owner and not of the carrier. The fact that the operation of the plain words of a statute extends beyond the requirements of the particular legislative scheme which provided the context and occasion of their enactment provides of itself no sufficient warrant however for refusing to give effect to the words which the Legislature has seen fit to use. This is particularly the case where the proposed confinement of those plain words would exclude applications of the words actually used to circumstances to which their application would be neither unexpected nor surprising such as to preclude a person from contracting out of a right to claim for damages for injury to his clothing or personal effects sustained as a result of physical impact. Moreover, it is far from self-evident that it might not have been the considered legislative policy that there should be no advance absolution of the negligent driver from any of the civil consequences of his negligence. As Cox J. commented in the course of his judgment in the Full Court of the Supreme Court:
"... It is by no means surprising that Parliament should wish to ensure the universality of the compulsory insurance scheme with respect to death or bodily injury by rendering void any attempt to contract out of it, and it is not inconceivable that it should have decided at the same time on other policy grounds to extend the prohibition against contracting out to other claims arising out of the negligent driving of a motor vehicle. If Parliament did intend to legislate to that general end, then it is not inappropriate that it should have done so in an Act relating to motor vehicles. It cannot carry very much weight, in view of the clear terms of s 133 itself, that the other provisions of Part IV of the Motor Vehicles Act deal for the most part with a liability in respect of death or bodily injury. The exceptions to that general rule in ss 107 and 134 tell against a restricted construction of s 133."
It was also argued on behalf of the carrier that the words of s 133 should be read down by reason of the heading ("THIRD PARTY INSURANCE") of Part IV of the Act. In my view, two reasons effectively preclude the section being so read down by reason of that heading. The first is that, as has been said, the language of s 133 is clear. The section refers to any contract by virtue of which a person contracts in advance out of any right to claim damages or any other remedy for the negligence of any other person in driving a motor vehicle. As a matter of language, the section covers the case where a person contracts in advance out of a right to claim in respect of property damage. If the heading of Part IV were properly to be construed as referring only to damages in respect of death or bodily injury, either the heading would need to be regarded as having "been inserted for the purpose of convenience of reference, and not intended to control the interpretation of the clauses which follow" (Union Steamship Company of New Zealand v. Melbourne Harbour Trust Commissioners (1884) 9 App.Cas. 365, at p 369) or, alternatively, there would exist a plain inconsistency between the heading and the clear words of s 133 to which the heading must give way (cf. per Stephen J., Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. (1978) 140 CLR 216 , at p 225; Cross, op. cit., pp 107-108). The second reason is that the heading of Part IV is not, in any event, inappropriate for a Part containing provisions dealing with third party claims for property damage as well as third party claims for death or personal injury in that the phrase "Third Party Insurance" is appropriate to refer to insurance in respect of either category of claim.
There remains to be considered the argument advanced on behalf of the carrier that the words of s 133 should be confined to a contract by which a natural person contracts in advance out of a right to claim damages. Again, I am unable to accept the submission that the words of the section should be so confined. Prima facie, the word "person" in a statute includes both natural and artificial legal entities (see Acts Interpretation Act 1915 (SA), s 4, and, generally, per the Privy Council, Royal Mail Steam Packet Company v. Braham (1877) 2 App.Cas. 381, at p 386, and per Rich and Dixon JJ., Leske v. SA Real Estate Investment Co. Ltd. (1930) 45 CLR 22 , at p 25). As Mann C.J. commented in Bennett-Hullin v. Clark & Co. (1944) VLR 45, at p 46, in the context of construing a comprehensive motor vehicle insurance policy, "(i)t has been long established by undoubted judicial authority and now by statute that the word 'person' occurring in a written contract such as the policy before us is to be read as including a corporation unless a contrary intention appears ... . This is a technical rule of convenience limited to the construction of written documents, and is quite contrary to all practice in spoken language, as was pointed out by Lord Blackburn in Pharmaceutical Society v. London and Provincial Supply Association ((1880) 5 App.Cas 857, at p 869)". The word is so used in many places in Part IV. There is, in my view, no valid reason for holding that it is not used with that ordinary wide meaning when it first occurs in s 133.
In the result, the appeal should be dismissed. I note that the case stated does not raise the question whether the provisions of s 133 are confined to a right to claim damages or any other remedy for negligence in driving a motor vehicle within the State of South Australia and that that question has not been the subject of argument on this appeal.