K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
157 CLR 30960 ALR 509
(Judgment by: Gibbs CJ)
K & S Lake City Freighters Pty Ltd
v Gordon & Gotch Ltd
Judges:
Gibbs CJMason J
Brennan J
Deane J
Dawson J
Subject References:
Contract
Statutes
Judgment date: 1 August 1985
Canberra
Judgment by:
Gibbs CJ
I have had the advantage of reading the reasons for judgment prepared by my brother Deane and am able to express quite shortly my reasons for agreeing in the conclusion that he has reached.
The question for decision is whether s 133 of the Motor Vehicles Act 1959 (SA), as amended, applies to a contract whereby a company which consigned goods for carriage agreed that the carrier should not "in any circumstances (except where any statute otherwise required) be under any liability whatever (whether in contract tort or otherwise) for any loss of or damage to ... the goods ... nor for any consequential loss ... whether such loss damage ... or consequential damage is caused or alleged to have been caused by a negligence (sic) 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". Section 133 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."
The question of construction which arises is a difficult one. On the one hand, the words of s 133 are clear and unambiguous: they apply to any contractual provision by which a person contracts out of any right to claim damages for the negligence of any other person in driving a motor vehicle, whether the negligence has resulted in death or bodily injury, or damage to property, or all of those things. On the other hand, Pt.IV of the Act, in which s 133 appears, is headed "THIRD PARTY INSURANCE" and reveals as its principal purpose the effectuation of a scheme (which applies throughout Australia by virtue of similar legislation in other States and Territories) designed to ensure that a person who recovers damages in respect of death or bodily injury caused by or arising out of the use of a motor vehicle shall be able to recover those damages either from an insurer or, if the vehicle is uninsured, from a nominal defendant. As part of the scheme, it is required that in respect of all motor vehicles registered or, subject to exceptions, driven on a road, there shall be in force a policy of insurance which insures the owner and any driver in respect of all liability that may be incurred by the owner or driver in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth. In that context, it would not be surprising to find a section which avoids a contractual provision by which a person contracts in advance out of a right to claim damages for negligence resulting in death or bodily injury. However, s 133 appears to go further; if its words are given their ordinary and natural meaning, the section will also render void any contractual provision by which a person contracts in advance out of a right to claim damages for negligence causing the loss of or damage to goods being carried by motor vehicle. A section so wide may seem out of place in Pt.IV, and the appellant submits that the heading of the Part and the context which the Part provides should lead to the conclusion that the real intention of the legislature was to avoid only provisions by which a person contracts out of liability for death or bodily injury.
The words of any statutory provision must be first read in the context provided by the statute as a whole (Attorney-General v. Prince Ernest Augustus of Hanover [1957] AC 436 , at pp 461, 473; Maunsell v. Olins [1975] AC 373 , at p 386; Black-Clawson Ltd. v. Papierwerke A.G. [1975] AC 591 , at p 613) but "if, when so read, the meaning of the section is literally clear and unambiguous, nothing remains but to give effect to the unqualified words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449 , at p 455; Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 , at pp 304-305. A consideration of the other provisions of Pt.IV does not reveal any inconsistency between any of those provisions and s 133; that section goes beyond, but does not contradict the purpose of, the other provisions of Pt.IV and does not render those other provisions in any way less effective. Section 133 does not bring about a result that could be described as inconvenient, improbable or unjust, and still less as absurd or irrational. The context provided by the Part does not render obscure or doubtful the words of s 133 which in themselves are clear and remain unambiguous in their context. Even if the context of Pt.IV were regarded as entirely alien, and s 133 stood alone in that context, I should not have thought that there was any justification for departing from the ordinary meaning of the words of the section.
In any case, it is not quite true to say that Pt.IV deals only with "third party insurance" in the sense which may be attributed to those words in the light of the scheme which the Part is designed to effectuate. Section 107 provides as follows:
"Notwithstanding any enactment, an insurer in relation to a policy of insurance whether under this Part or otherwise in relation to a motor vehicle shall, as from the date of the policy, be liable to indemnify the persons or classes of persons specified in the policy in respect of any liability which the policy purports to cover."
The legislative history of that section makes it clear that the words "whether under this Part or otherwise" were intended to ensure that the provisions of s 107 were not limited to policies issued under Pt.IV. The section originally appeared as s 70C(3) of the Road Traffic Act 1934 (SA), and then referred to "a policy of insurance under this section". Section 70C(3) was repealed by s 25(2) of the Road Traffic Act Amendment Act 1938 (SA) and replaced by s 70q, which was in the same terms as the present s 107. That change made in 1938 was significant, and supports the view that s 107 applies to a policy indemnifying the owner or driver of a vehicle against liability for loss of or damage to goods, as well as to a policy issued under Pt.IV. Section 134 renders it unlawful for persons other than those specified in the section to act for reward in connexion with claims or actions "for damages for death, bodily injury, or injury to property, arising out of the use of a motor vehicle". It is true that a provision such as that of s 134 might be regarded as ancillary to a scheme of compulsory insurance against liability in respect of death or bodily injury but the fact remains that the section is expressly extended to claims for damage to property. The presence of these two sections in Pt.IV means that not all of the provisions of that Part were intended to be limited to liability for death or bodily injury. The context which that Part provides is not entirely incongruous with s 133 when that section is given its natural meaning.
A further argument was advanced that the word "person" in s 133 refers only to natural persons and does not include a company. I regard this argument as untenable for the reasons given by my brother Deane.
It was suggested in the outline of argument submitted by the appellant that the fact that s 133 has the limited meaning which the appellant sought to place upon it could be gleaned from the parliamentary papers, but that argument was abandoned. It may be assumed that in this, as in many other cases, nothing said in the legislature when the Bill was debated throws any light on the meaning of the doubtful provision.
The Full Court of the Supreme Court of South Australia rightly held that s 133 did apply to the contract in question.
I would dismiss the appeal.