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Tuesday, 24 November 1959

Mr WHITLAM - And, indeed, many honorable gentlemen have made applications to the Commonwealth for ex gratia payments. I myself made some within the period to which the Treasurer referred in his reply, and I believe it is a common experience of honorable members. For many years they have been approached by people who have been injured by Commonwealth motor vehicles, and who have said that the Commonwealth has entered the defence that the driver was not driving in the course of his employment or was not a Commonwealth driver at all. The person injured or bereaved has then been unable to prove that the driver was a Commonwealth driver, or that he was a Commonwealth driver driving in the course of his employment, and has then been forced to sue the actual driver. If the driver in such cases was a Commonwealth employee he would be unlikely to be able to meet the verdict of the court. If he happened to be an unknown person, or a person who was not a Commonwealth employee, in most cases the chances of securing the amount of the verdict would be even slimmer. Honorable gentlemen who have applied for ex gratia payments in those circumstances have usually been rebuffed. I have heard of many rebuffs; I have never heard of a payment having been made.

I mentioned the satisfaction that honorable members in general will have derived from the fact that the Commonwealth is now accepting the same responsibility that has, for at least a decade, attached to every State and to every private motor vehicle owner in the country. I may be pardoned for taking some satisfaction in the bill myself, because I think it flows directly from a series of eight questions that I have put to the Prime Minister over the past two years, after I raised the general matter in the debate on the estimates for the Department of Works two years ago. On 10th October, 1957, I told honorable members of one particular case which, I think, illustrates the difficulty that has faced our fellow citizens when they have been injured by Commonwealth vehicles. One of my constituents was sitting in her husband's car, which had been parked, properly lighted, off the side of a road. At about 7 o'clock a Commonwealth vehicle owned by the Department of Works ricocheted into the car and injured the woman sitting in it. The Commonwealth took the point that the driver was not driving in the course of his duty. He was, in fact, somewhat inebriated, and for that reason also the Commonwealth would not accept liability. The driver was a man of straw. There would have been no point in suing him, because one could not have recovered the amount of the verdict. I sought an ex gratia payment, but the Treasury refused it. I then asked the Prime Minister a question on 28th November, 1957 in the following terms: -

I ask the Prime Minister a question concerning the Commonwealth's liability to pay damages for injuries caused by the drivers of its vehicles. The right honorable gentleman is aware that under compulsory third party legislation in all States the driver of a private or State motor vehicle is always presumed to be driving it with the authority of the owner, and that the owner is liable for the bodily injuries caused by the driver of his vehicle. Does the right honorable gentleman know, however, that the Commonwealth refuses to accept liability for bodily injuries caused by its drivers unless at the time they were driving in the course of duty? If the right honorable gentleman knows this to be the position, or if on inquiry he finds that the position is as I have stated it, will he give instructions to all his Ministers that the Commonwealth is not to take advantage of a defence that is no longer available to private employers and owners, and which the State governments have surrendered in respect of their own vehicles?

The Prime Minister replied -

I regret to say that I am not at all aware of the legal position on this point, either here or in the States, but I shall have a look at it, because the point raised is quite a significant one.

I asked the Prime Minister another question on 25th February, 1958, when he said -

I know that the matter has been examined, because it was put in hand. I cannot say at present what the result was.

He promised to give me an answer to the question that week if possible, or failing that in the very near future. Towards the end of that session, on 7th May, 1958, I asked the Prime Minister the following question -

Three weeks ago the Prime Minister told me that he had given instructions that work on the problem of answering my question should be speeded up as much as possible. I now ask the right honorable gentleman whether I can expect an answer to my question before the House rises next week.

The Prime Minister replied -

Yes, I think that can be done. I have a strong feeling that this matter has actually reached /me and, so, any delay is now at my table. I shall certainly endeavour to have the question answered next week.

Mr Bowden - Would you like me to go out and get a few more volumes of " Hansard " for you?

Mr WHITLAM - No. I am cutting this to the bare bones. I am not suggesting that the Prime Minister does not make correct decisions so much as that he takes his time about making them. On 6th August, 1958, he told me -

A submission on this matter will be made to Cabinet and will be considered at an early date.

On 27th August, 1958, he told me, in reply to a question -

The matter has had some consideration. There are some aspects of it, as the honorable member will realize, that are not without their complications and which have been investigated since. I do not undertake to give the honorable member an answer to-morrow, but I will give him the complete answer to his question on the next day of sitting.

Finally, on 9th September, he gave me the answer. That is the date that the AttorneyGeneral has embodied in this bill as the day upon which the act will come into operation.

The delay was due, I believe, to a conflict between the Attorney-General of the time and the Treasurer, or between their officers. The Attorney-General, Senator O'sullivan, was consistently in favour of the Commonwealth's accepting the same obligations as State governments and citizens accept and have to undertake, respectively. But the Treasury continued in the obdurate attitude which it has taken in this matter all along. To the very last it resisted the Commonwealth's accepting the same situation as other litigants accept or have to undertake. It was not until the Prime Minister himself came in and arbitrated between his Ministers that the correct decision was at last reached.

The only criticism I make of the bill is that it dates from 9th September, 1958. I should have thought that, more properly, the act and the Commonwealth's liability should date from 28th November, 1957, when the Prime Minister was first asked to look into the matter, or from some time in May, 1958, when, in fact, Cabinet had already considered the matter and had reached a tentative decision. I do not know how many accidents were involved in the period of nine months or in the period of four months. Therefore, I do not propose to go to the extent of moving, in committee, an amendment to the relevant clause.

The bill takes the attitude that the Commonwealth should be in the same position in the courts of the States or the Territories as is any other defendant. That is a perfectly appropriate attitude. There are some anomalies between the States. The bill, fortunately, preserves the right of trial by jury in these matters, which the Prime Minister was not at first prepared to concede, because he told me that the Government had already decided that the liability of the Commonwealth should be determined by a judge sitting without a jury. I believe that certain anomalies were found in cases where other parties might have to be joined and the liability between the plaintiff and those other parties would be determined by a jury in some States, and the liability between the plaintiff and the Commonwealth, or between the other defendant and the Commonwealth, would be determined by a judge without a jury. I believe that the new Attorney-General has come to the correct decision in allowing the matter to be determined by a jury in those States where such matters are determined by a jury between private litigants or between private litigants and a State government, and without a jury in States where juries are not available in these matters.

There is one other difficulty, of course, that immediately occurs. The Commonwealth will be able to plead, in the State of New South Wales, where about half the running-down cases in Australia are litigated, the defence of contributory negligence, because it is an anomaly of which New South Wales should, 1 believe, be heartily ashamed that in that State, and in that State alone, it is possible for a defendant to plead that the plaintiff himself contributed to the accident by some degree of negligence, and the plaintiff can, in those circumstances, secure no damages at all. He bears all the damages himself. In the other States and in the Territories, the States and the Commonwealth have provided that where both the plaintiff and the defendant are negligent, the plaintiff will be compensated by the defendant in the proportion that the defendant was negligent. If the plaintiff is negligent he does not lose entirely the right to damages. He is penalized only by losing a proportion of the damages in relation to his own contributory negligence.

I shall conclude by a reference to the continuing weakness of third party insurance in cases of road accidents. The great fault of all litigation in this field is that it stems from a development of the old actions for negligence. As in all actions for tort, damages have to be given in a lump sum or not at all. It is a completely anomalous fact that if a person is injured in a road accident, or is bereaved as the result of a road accident, damages are given in a lump sum. It is quite inappropriate. 1 have said on earlier occasions, and in this House recently in the debate on the vote for the Attorney-General's Department, that a more appropriate form of compensation would be by way of periodical payments. Further, I believe, as I said on that occasion, that litigation in these matters is unnecessarily dilatory, expensive and hazardous. The Social Services Department has the appropriate machinery for determining the amount of compensation that a person is entitled to receive to put him in the same position as he would have been in if the accident had not happened, and the petrol tax provides a ready and fair means for all road users to contribute in respect of accidents that occur on the roads. I pointed out at the time that I did not mean thereby that the whole compensation for injuries should be left to bureaucrats. In the Department of Social Services and a great many other departments that make decisions appeals should be available to some form of court, and I would think that a federal supreme court would be the appropriate body.

However, those are matters that can be dealt with at another time. At the present time we are quite rightly, though belatedly, seeing that the Commonwealth will be a model litigant where injuries or fatalities have been caused by the drivers of its vehicles in the same way as, for many years past, State governments have accepted that responsibility, and all private motor owners have had to insure against that responsibility.

Question resolved in the affirmative.

Bill read a second time, and reported from committee without amendment or debate; report adopted.

Bill - by leave - read a third time.

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