Dominion Insurance Ltd v Bamforth [2003] FJSC 3; CBV0005.2002S (24 October 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0005 OF 2002S
(Fiji Court of Appeal Civil Action No. ABU0076 of 2000S)

BETWEEN:

DOMINION INSURANCE LIMITED
Appellant

AND:

KAY LYNETTE BAMFORTH AND
MARGARET ANNETTE WILSON
First Respondents

FUEL SUPPLIES (PACIFIC) LIMITED
Second Respondent

RAVIN CHAND
Third Respondent

MOHAMMED SHAMEEM
Fourth Respondent

Coram: Hon Justice Daniel Fatiaki – President of Supreme Court
Hon Justice Robert French – Judge of Supreme Court
Rt. Hon Justice Peter Blanchard – Judge of Supreme Court

Hearing: Tuesday, 14th October 2003, Suva

Counsel: Mr A.K. Narayan for the Appellant
Mr V. Maharaj for the First Respondents

Date of Judgment: Friday, 24th October 2003, Suva

JUDGMENT OF THE COURT

Introduction

On 7 June 1995 a truck driven by Ravin Chand struck a motor vehicle driven by Margaret Wilson. Mrs Wilson suffered personal injuries in the accident and sued Mr Chand, his employer, the owner of the truck, and the third party insurer for damages for negligence. She secured a judgment against all of them. Notice of the commencement of the proceedings had been given to the insurer 13 days after they began and not within 7 days as required by the Motor Vehicle (Third Party Insurance) Act Cap. 117 s.11(2)(a). The insurer argued that the failure to comply with the notice requirement avoided its statute imposed liability to pay Mrs Wilson the amount of the judgment against the driver. The Court of Appeal held that there had been substantial compliance with the notice requirement. The insurer now appeals, by that Court’s leave, against its decision.

Factual History and History of Proceedings

In November 1993 Fuel Supplies (Pacific) Ltd was the owner of a Hino Diesel Tip Truck Registration BZ364. The truck, which the company had owned since May 1986, was the subject of a Bill of Sale created on 21 September 1992 to secure advances made to it by the Bank of Baroda.

Notwithstanding the Bill of Sale and apparently without reference to the Bank the Managing Director of Fuel Supplies, Faizal Mohammed Khan, agreed to sell the truck to Mohammed Shameem. Mr Shameem operated a cartage business under the name Shameem’s Transport. The sale was evidenced by an invoice from Fuel Supplies to Shameem’s Transport dated 30 November 1993. The sale price was $20,000 plus $2,000 VAT a total of $22,000. The purchase price was not paid in full at the time. Mr Shameem was evidently aware of the existence of the Bill of Sale.

Fuel Supplies maintained third party insurance with respect to the truck with Dominion Insurance Limited. The Insurer issued a Certificate of Insurance to the company on 12 August 1994 for a period of 12 months. The persons entitled to drive and be insured under the policy were ‘the Owner’ which was defined as Fuel Supplies and “any person who is driving on the Owner’s order or with his permission”.

On 7 June 1995 the truck was being driven by Ravin Chand, an employee of Mr Shameem, when it collided with the motor car driven by Margaret Wilson. Mrs. Wilson suffered injuries as a result of the accident. The vehicle she was driving was a Datsun Station Wagon owned by Kay Bamforth. The Station Wagon was a write-off as a result of the accident. It is not in dispute that the accident occurred because of the negligent driving of Mr Chand who was subsequently convicted on a charge of dangerous driving arising out of it.

On 15 June 1995 Mr Khan provided an executed form of transfer of the truck to Mr Shameem. Mr Shameem signed the transfer on the same day. Also on the same day Dominion Insurance issued a new Certificate of Insurance showing Mr Shameem as the Owner. The Bill of Sale over the truck was not discharged until 10 January 1996.

In September 1996 Mrs Bamforth, the owner of the Station Wagon, and the injured driver Mrs. Wilson commenced proceedings in the High Court of Justice claiming damages for property damage and personal injury respectively. They named as defendants, Fuel Supplies, Mr Chand, and Dominion Insurance. Mr Shameem was joined as a further defendant in November 1997. It is not clear that the Dominion Insurance was appropriately joined as a defendant in the proceedings. As will be seen later in these reasons the only relevant liability it could have had was a statutory liability to Mrs Wilson which could only arise upon a judgment in her favour against a person covered by the insurance policy. However no point was taken in the Court of Appeal or in this Court arising out of that circumstance.

The case went to trial in late 1999 and early 2000. Judgment was delivered by Byrne J. on 17 October 2000. His Honour awarded Mrs Wilson $60,231.02 damages for her personal injuries and Mrs. Bamforth $4,921.90 for the damage to her motor vehicle. Both judgments were expressed to be against all defendants including the insurer.

Dominion Insurance appealed to the Court of Appeal against the judgment. On the hearing of the appeal counsel for Fuel Supplies, which had not appealed, nevertheless submitted that there were no grounds for entering judgment against the company.

The Court of Appeal set aside the judgment of the High Court and substituted judgment as follows:-

1. For Mrs Bamforth, against Mr Chand and Mr Shameem, $4,921.90 plus interest at 3% from the date of judgment in the High Court to the date of the judgment in the Court of Appeal.
   
2. For Mrs Wilson against Mr Chand, Mr Shameem and Dominion Insurance, $60,231.02 plus interest at 3% from the date of the judgment in the High Court to the date of judgment in the Court of Appeal.
   

On 17 May 2002 the Court of Appeal granted leave to Dominion Insurance to appeal out of time to the Supreme Court. It was a condition of the leave that the amount of the judgment appealed from be paid into Court and invested by the Registrar in an appropriate interest bearing security pending disposition of the appeal. There was no order as to the costs of the appeal.

The Judgment of the Court of Appeal

It is not necessary to traverse the judgment of the Court of Appeal in detail. The issues on the present appeal relate to its conclusion that Dominion Insurance was liable in respect of the personal injuries award in favour of Mrs Wilson despite the fact that it had not been given a notice of the proceedings, required under the provisions of the Motor Vehicle (Third Party Insurance) Act, within the time prescribed by s.11(2)(a) of that Act.

The Court of Appeal’s judgment involved the following findings:-

1. At the time of the accident Fuel Supplies had not passed property in the truck to Mr Shameem and was therefore still the owner of the vehicle for the purposes of the motor vehicle third party insurance policy issued by Dominion Insurance.
   
2. At the time of the accident Mr Chand was driving the truck with Fuel Supplies’ permission. This followed from the transfer of possession of the
   

truck by Fuel Supplies to Mr Shameem with a view to Mr Shameem’s employees using it in the course of his transport business.

3. Neither Mr Chand nor Fuel Supplies notified Dominion Insurance of the accident or furnished the Insurer with the particulars of it as required by s.16(1) of the Motor Vehicle (Third Party) Insurance Act. The absence of notification of the accident did not discharge Dominion Insurance from its statutory obligation (if any) under s.11 of the Act to pay to Mrs Wilson the damages awarded to her.
   
4. Dominion Insurance did not receive notice of the bringing of the proceedings within 7 days of their commencement as required by s.11(2) (a) of the Act. The first notice it received was by service upon it of the writ on 9 October 1996. This was 13 days after the proceedings were commenced on 26 September 1996.
   
5. The objective of the notice requirement under s.11(2)(a) was to enable the Insurer to take over proceedings promptly. That objective could be achieved by notice within 7 days or soon afterwards. The notice by service of the writ within 13 days of commencement of the proceedings constituted “substantial compliance” with the Act. On that basis Dominion Insurance was held liable to pay Mrs Wilson the amount of the judgment against Mr Chand who, as driver of the truck, was in terms of s.11(1) a person insured by the policy.
   
6. Dominion Insurance could not be held liable (contrary to the trial judge’s holding) for property damage suffered by Mrs Bamforth.
   
7. The award of damages to Mrs Wilson was not excessive.
   

The Grounds of Appeal

The grounds of appeal cover only those conclusions of the Court of Appeal relating to the effects of non-compliance with the requirements of the Motor Vehicle (Third Party) Insurance Act relating to notice of the bringing of the proceedings.

The grounds are as follows:-

“1. Their Lordships erred in law by proceeding to determine the effect of Section 11(2)(a) by reference to whether the provisions were directory or mandatory and that substantial compliance would suffice when they failed to consider the real effect and purpose of the provision which was to incorporate into the contract of compulsory motor vehicle insurance policy a condition precedent to liability of the insurer and recovery against it.

2. Their Lordships’ decision that the provision is directory or that substantial compliance would satisfy the requirements of Section 11(2)(a) is contrary to the express and clear words of the statute.

3. Their Lordships erred in construing Section 11(2)(a) of the Motor Vehicle (Third Party) Insurance Act as they did without reference to Section 16 of the said Act which was relevant in determining the legislative intent in respect of the seven days time limit.

4. Their Lordships erred in law in failing to apply the correct principles and the principles referred to by them in their decision and in particular overlooked the significance of likely prejudice which may be caused to insurers, the significance of the time limit of seven days and the consequence provided by the Act for failure to comply.

5. Their Lordships decision that notice after seven days and on the thirteenth day was substantial compliance is arbitrary and unreasonable.”

Statutory Framework

The Motor Vehicle (Third Party Insurance) Act Cap.177 is described in its long title as:

“An Act to make provision for compulsory insurance against Third Party risks arising out of the use of motor vehicles.”

The Act prohibits any person from using or causing or permitting any other person to use a motor vehicle unless there is in force, in relation to the use of that motor vehicle by such person or other persons, a policy of insurance, in respect of Third Party risks, which complies with the provisions of the Act (s.4). To comply with the provisions of the Act a policy of insurance must be issued by an approved insurance company and must insure the persons or classes of persons specified in the policy “in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle” (s.6(1)). The liability of the approved insurer to indemnify the insured parties is imposed by the Act. The policy will be “... of no effect for the purposes of this Act” unless and until the insurer has delivered a certificate of insurance to the person by whom the policy is effected. (s.6(4)).

The statutory liability of the insurer to indemnify the person insured is not to be avoided by conditions that liability does not arise or ceases because something is done or admitted to be done after the event giving rise to a claim under the policy. Such a condition “... shall be of no effect in connection with such liabilities as are required to be covered under this Act.” (s.9).

Section 10 vitiates any provision in a policy seeking to restrict insurance of the person insured in respect of certain specified matters. Those matters include the age or physical or mental condition of a person driving the motor vehicle.

The key provision of the Act for the purposes of this appeal is s.11 which, in the relevant parts, provides:

“11(1) If, after a certificate of insurance has been delivered under the provisions of ss.(4) of s.6 to the person by whom the policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under the provisions of paragraph (b) of ss. 1 of s 6, being a liability covered by the terms of the policy, is obtained against any person insured by the policy, then notwithstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurance company shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum.

(2) No sum shall be payable by an approved insurance company under the provisions of subsection (1) –

(a) In respect of any judgment unless before, or within 7 days after the commencement of the proceedings in which the judgment was given, the insurance company has notice of the bringing of the proceedings; or

(b) in respect of any judgment so long as execution thereon is stayed pending an appeal.”

It is not necessary to set out in full para (c) of s.11(2). It suffices to say that it covers the case in which a policy was cancelled by mutual consent or by virtue of its provisions prior to the event giving rise to the liability. Subsection 11(3) provides that the insurer is not liable if, in an action commenced within 3 months after the commencement of the proceedings in which the judgment was given, the insurer has obtained a declaration that it is entitled to avoid the policy for material non-disclosure or false representation in a material particular. The avoidance of the liability under s.11(3) is subject to a proviso that notice of the insurer’s proceedings must, within 7 days of their commencement, have been given to the plaintiff in the action under the policy.

Another important provision of the Act is s.16 which requires the owner of the vehicle in respect of which the policy has been issued to give notice of any accident involving such vehicle and resulting in death or personal injury to a third party. The section provides:-

“16(1) On the happening of any accident affecting a motor vehicle and resulting in the death of or personal injury to any person, it shall be the duty of the owner, forthwith after such accident, or, if the owner was not using the motor vehicle at the time of the accident, it shall be the duty of the person who was so using the vehicle, forthwith after the accident, and of the owner, forthwith after he first becomes aware of the accident, to notify the insurance company of the fact of such accident, with particulars as to the date, nature, and circumstances thereof, and thereafter to give all such other information and to take all such steps as the insurance company may reasonably require in relation thereto, whether or not any claims have actually been made against the owner or such other person on account of such accident.

(2) Notice of every claim or action brought against the owner or made or brought against any other person who was using the vehicle at the time on account of any such accident shall be forthwith given to the insurance company with such particulars as such company may require, in the former case, by the owner and, in the latter case, by such other person and, where he has knowledge of claim or action, also by the owner.

(3) Neither the owner nor any other person shall, without the written consent of the insurance company, enter upon or incur the expense of litigation as to any matter or thing in respect of which he is indemnified by a contract of insurance under this Act, nor shall he, without such consent, make any offer, promise, payment, or settlement, or any admission of liability as to any such matter.

(4) If the owner or such other person fails to give any notice or otherwise fails to comply with the requirements of this section in respect of any matter, the insurance company shall be entitled to recover from him as a debt due to it an amount, equal to the total amount including costs, paid by the insurance company in respect of any claim in relation to such matter.”

It may also be noted that if an approved insurer refuses to issue a policy covering such liabilities as are required to be issued by the Act, or gives notice of intention to cancel such a policy the prospective or actual person insured may appeal to a Magistrate. In that event the court may dismiss the appeal or may direct that the policy issue or that the notice of cancellation be withdrawn as the case may be (s.27).

Failure to give a Section 11 notice within time

As appears from the grounds of appeal set out earlier this appeal reduces to the question of the proper construction of s.11 (2)(a) of the Act.

In construing any statute the Court must take as its point of departure the ordinary and grammatical meaning of the words used in the statute. This is a rule which, it has been said, is dictated by basic considerations of fairness:-

“....those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” Corporate Affairs Commission (NSW) v. Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 (Gaudron J).

The ordinary and grammatical meaning of the words must be construed according to their legislative context. It is not necessary first to find ambiguity in the meaning of the word before considering their context. Context itself may illuminate constructional choices. As this Court said in Qarase v. Chaudhry (Civil Appeal No. CBV0004/2000S) at para. 64:-

“Construction is a multi-dimensional process. It is not appropriate to approach a text on its basis that some kind of ambiguity must first be found to exist in a specific provision before taking into account the whole of its context and other relevant principles and considerations. At the very least context must be considered in the first instance.”

So much having been said, it is necessary also that the Court respect the limits placed upon its construction by the words of the statute. As McHugh J. said in Newcastle City Council v. GIO General Insurance Limited [1997] HCA 53; (1997) 191 CLR 85 at 109 the function of the Court remains one of construction and not legislation:-

“When the words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.”

Nor can the Court construe legislation against its language because to do otherwise would yield an apparently harsh or inconvenient or unjust result in a particular case. This constraint may become acute in the case of a statute which imposes time limits for commencing proceedings or doing other things and makes no provision for any extension of those time limits. It is necessary then to consider s.11(2)(a) having regard to the ordinary and grammatical meaning of its words and the context and the purpose of the provision.

Section 11(1) of the Act imposes a statutory liability on the Insurer to pay the sum of a relevant judgment against a person insured to the person in whose favour the judgment has been awarded. That liability is extra-contractual although necessarily conditioned upon the existence of a policy of insurance. It is important therefore, when looking to the provisions of s.11(2), to bear in mind that the section is concerned with the imposition and the conditions of the imposition of a special statutory liability. It is not concerned with the plaintiff’s cause of action against the insured person which arises at common law. Nor is it concerned with an insured person’s right of indemnity under the policy.

Subsection 11(2) sets the boundaries of this special statutory liability by setting out the conditions under which “No sum shall be payable by an approved insurance company under the provisions of subsection (1)”. There is no relevant leeway of choice in these words. They define the boundaries of the liability imposed by s.11(1) by reference to various circumstances in which “No sum shall be payable” under that subsection.

The Court of Appeal observed:-

“Section 11(2)(a) imports into the policy what is in effect a condition precedent to the liability of Dominion Insurance to make the payment it would otherwise be required to make by s.11(1).”

That observation, with respect, is not strictly correct. The condition precedent specified in s.11(2)(a) applies to the statutory liability created by s.11(1). It is not imported into the policy. In this connection also the submission made for Dominion Insurance that the Act has been “incorporated into the policy by reference” is not apposite as the liability created by s.11(1) is between the insurer and the injured party who was not a party to the policy or covered by it.

It is correct to say, as the Court of Appeal said, that s.11(2)(a), as a matter of construction in accordance with the unambiguous opening words of s.11(2), defines a condition precedent to the liability imposed by s.11(1). When that point is reached no question of characterisation of the condition as mandatory or directory arises even if that characterisation were still useful in statutory construction - see Project Blue Sky Inc. v. Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 516; Hawkes Bay Hide Processors of Hastings v. Commissioner of Inland Revenue [1990] 3 NZLR 313 at 316. For the construction question – what is the effect of non - compliance with the condition? - is answered, not by the words of the condition itself but by the clearly defined consequences of the failure to satisfy it – “No sum shall be payable.”

The character of the section as a condition precedent appears to have been recognised early in the life of the equivalent provision in s.19(2)(a) of the Road Traffic Act 1934 (UK). In Herbert v. Railway Passengers Assurance Co. [1938] 1 ALL ER 650 Porter J. observed at 654:-

“Without considering the matter thoroughly, the view which I hold at present is that, where an Act of Parliament stipulates that recovery shall not take place except in certain events, those events must take place before the plaintiff can recover.”

In that case it was held that a casual conversation between the insured defendant and the insurer’s agent in which the defendant mentioned that an action had been brought against him could not meet the notice of requirement. There was no room for mitigation of the operation of the section. Porter J. remarked at p.650:-

“This is a case in which one feels considerable sympathy for the plaintiff and [Counsel] has said everything that could be said on her behalf. Nevertheless, I am afraid that the law is too strong to give effect to his contentions.”

The nature of the notice condition as a condition precedent was confirmed recently in the Court of Appeal in Wake v. Wylie (2001) RTR 20. Kennedy LJ referred to s.152(a) of the Road Traffic Act 1988 as “not a statutory defence” but “a condition precedent to liability,” and “not a statutory time limit, but a state of affairs which by statute had to exist before the relevant insurers became liable to pay”(para. 34 and 38). The judgment of Kennedy L.J., with which Laws and Rix LJJ agreed, also provides a helpful review of case law on the section which it is not necessary to reproduce here.

The task that remains is to define the content of the condition. There is room for debate about the way in which an insurer may have notice of proceedings in which the relevant judgment is given. That was the approach taken by the Court of Appeal in Desouza v. Waterlow [1999] RTR 71 (C.A.) in relation to the like provision of s.152(a) of the Road Traffic Act 1988. Cazalet J. , at 81, identified “the essential purpose” of the required notice thus:-

“...that the insurer is not met with information, out of the blue, that his insured has had a judgment obtained against him.”

Roch LJ at 82 said:-

“The purpose of the provision is to avoid insurers being asked to satisfy a judgment against their insured in respect of a claim of which they knew nothing, obtained in proceedings of which they had no notice or warning.”

In that case the object of the notice requirement had been met. The plaintiff had provided the insurer with a detailed plan and account of the accident within one month of its occurrence. The insurer’s engineer had inspected the plaintiff’s car and had authorised work to be carried out. There was a sequence of letters between the plaintiff and the insurer in which the plaintiff made clear that unless his claim was settled he intended to take proceedings. In that case the Court adopted a purposive approach where the language of the section permitted it to do so. The requirement of notice can be met in a variety of ways. Cazalet J. observed that notice could be given orally and could be given prior to the commencement of the proceedings. This was also the approach of the Privy Council in the earlier case of Ceylon Motor Insurance Association Limited v. Thambugala [1953] A.C. 584 concerning s.134 of the Motor Car Ordinance of Ceylon (No. 45 of 1938). Notice was held not to require precise identification of the particulars of the action instituted given that it could be provided prior to commencement of the action.

It is possible, with a purposive approach to the construction of s.11(2)(a) to eschew formality in the kind of notice required provided that it meets the substantive object of the provision. That object is to make the insurer aware, one way or the other, of the proceedings which are contemplated or have been commenced against a person covered by the policy. The term “notice” is sufficiently wide to allow a wide construction to be adopted which serves the purposes of the section. The language of s.11(2)(a) itself supports a wide construction as it matters not how the insurer gets notice of the proceedings as long as it “has notice” within the requisite time.

But the nature of the condition in s.11(2)(a) as a condition precedent which marks out the boundary of the insurer’s liability does not allow any “substantial compliance” construction. The condition is either met or not. No question of “compliance” arises for, unlike section 16, it does not purport to impose any duty on any person to notify. It simply requires that the insurer “has notice.” Who then is to comply? “Substantial compliance” in this context must equate to “substantial fulfilment” of the requirement. So far as the time limit is concerned a construction which permits fulfilment after the expiry of the time limit is a construction which involves a legislative redrafting of the provision. This is not a function which the Court is authorised to undertake. In some jurisdictions the Court is empowered to relieve a party from the effects of non-satisfaction of the condition where no prejudice is suffered by the insurer as the result of the delay – see for example s.29A of the Motor Vehicle (Third Party) Insurance Act (W.A.). To so provide is to provide for the enlargement of the statutory liability imposed on the insurer by the section.

There is also a relationship between the 7 day time limit set out in s.11(2)(a) and the 3 months time limit specified in s.11(3). If the 7 day time limit in s.11(2)(a) is able to be extended then there would be a reasonable constructional argument for extending the 3 months period by a corresponding amount to avoid prejudicing the position of the insurer.

While construction by reference to contrasting provisions of the same statute is not always a reliable technique there is a significant contrast to be drawn between the structure and language of s.11 and that of s.16. Section 16 imposes a duty of notification upon the owner and the driver of a vehicle involved in an accident. The notice must be given “forthwith after the accident”, a term which does allow some room for movement by reference to criteria such as reasonableness and practicability. It does not define a condition precedent to the contractual right of indemnity against the insurer. But it gives the insurer a right to recover, from the insured, where notice has not been given, any amount paid by the insurer in respect of a claim in relation to the matter. This is a provision which operates upon the contractual relationship between insurer and insured. It does not condition a freestanding statutory liability imposed on the insurer by the Act as is the case with s.11(2)(a).

The nature of s.11(2)(a) as a condition precedent to the insurer’s statutory liability suggests that its satisfaction is a matter to be demonstrated by a plaintiff seeking recovery against the insurer rather than its non-satisfaction being a matter which the insurer must show in order to resist a plaintiff’s claim against it. This appears from decision of the Court of Appeal in Wake v. Wylie. The Court held the insurer entitled to defend the action on behalf of the insured right up to the judgment and then, when the plaintiff turned to the insurer for recovery, to raise the point for the first time. In the present case Dominion Insurance amended its defence to take the time limit point on 16 November 1999 which was the fourth day of the trial. The judge’s notes record that the amendment was opposed by counsel for Mr Shameem and not opposed by counsel for Fuel Supplies. There is no record of any opposition from counsel for Mr Bamforth and Mrs Wilson. There was an argument of a general character reflected in written closing submissions from counsel for Mrs Bamforth and Mrs Wilson, that the insurer was estopped from contending as it did that the policy was avoided on account of alleged fraud by Fuel Supplies. It was said that, as the insurer had taken part in the proceedings, it was estopped from denying liability assuming that judgment were awarded against Fuel Supplies. There was no argument at any stage of the proceedings that the insurer had waived the time limit requirement or was estopped from relying on it. We express no concluded view on whether these preclusionary doctrines are available in relation to s. 11(2)(a) or would have been available in the circumstances of this case. In Wake v. Wylie, Kennedy L.J. adverted to the possibility that a plaintiff could rely upon estoppel where some relevant representation had been made but none could be identified in that case. In some cases a defendant may be estopped from making a late amendment to its defence where to do so would, by reason of the delay, cause irremediable prejudice to the plaintiff – e.g. Steward v. North Metropolitan Tramways Company [1885] 16 Q.B.D 178; Joint Coal Board v. Adelaide Steamship Co. Ltd. [1965] NSWR 143 and compare Wright v. John Bagnall & Sons Limited [1900] UKLawRpKQB 68; [1900] 2 Q.B. 240.

There was some debate on the hearing of the appeal about the feasibility of effectively requiring plaintiffs to ascertain the identity of the insurer and notify the insurer of proceedings within the time limited by s.11(2)(a) having regard to the nature of the records of Third Party insurance cover and the time taken to obtain information in Fiji.

Whatever may have been the problems at the time of the proceedings which have led to this appeal it does not appear, at least upon the basis of what the Court was told from the bar table, that these problems exist to the same extent now. While Courts should construe legislation, where possible, in a way that renders it workable rather than unworkable they must accept that the language may in some cases not permit a construction preferred on that basis. In such a case the legislature has made the judgment as to workability and the Court cannot substitute its own judgment to rewrite the Act.

It is almost always the case that strict time limits for doing anything will work injustice in some cases. It may be desirable that the legislature should make provision for Courts to ameliorate those injustices by permitting discretionary relief from the requirement of the time limit as for example does s.29A of the Motor Vehicle (Third Party) Insurance Act (W.A.).

Conclusion

For the preceding reasons the appeal should be allowed, and the orders of the Court of Appeal varied so that Mrs Wilson’s claim against the Dominion Insurance is dismissed.

Turning to the question of costs, this was a case in which there was a public interest in the proper construction of s.11(2)(a). This no doubt explains why the Court of Appeal granted leave to appeal to this Court. The case is in the nature of a test case and the insurer has made its legal point. It is not a point which is a particularly attractive one. It indicates a need for some reform of the law. In the circumstances, as Mrs Wilson may well have been deprived entirely of any practical recovery for injuries she suffered as a result of the accident, it does not seem to us that she should be required to bear the further burden of meeting the insurer’s costs of this appeal. This is a special case and does not detract from the general application of the ordinary rule that costs follow the event. In the circumstances we propose no order as to the costs of the appeal.

The orders of the Court should be:-

1. The Appeal is allowed.
   
2. The judgment of the Court of Appeal is varied so that the judgment awarded in favour of the second named first respondent (Margaret Wilson) against the appellant (Dominion Insurance Limited) is set aside. In lieu thereof an order is made that the second named first respondent’s claim against the appellant be dismissed.
   
3. Each party is to bear its own costs of the appeal.
   
4. The money paid into Court by Dominion Insurance pursuant to the order of the Court of Appeal made on 17 May 2002 be paid out to the solicitors for the Dominion Insurance together with such interest as has accrued on that sum.
   

Hon. Justice Daniel Fatiaki
President of Supreme Court

Hon Justice Robert French
Judge of Supreme Court

Rt. Hon. Justice Peter Blanchard
Judge of Supreme Court

Solicitors:

Messrs. A.K. Narayan and Company, Ba for the Appellant
Messrs. Maharaj Chandra and Associates, Suva for the Respondents