Bowles v Motor Accidents Insurance Board

[2012] TASSC 55

[2012] TASSC 55

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Bowles v Motor Accidents Insurance Board [2012] TASSC 55

PARTIES:  BOWLES, Andrew John      
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO:  1119/2011  
DELIVERED ON:  24 August 2012
DELIVERED AT:  Hobart
HEARING DATES:  22 and 24 August 2012
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Insurance – Motor vehicles – Unidentified vehicle – Notices, claims and extensions of time – Principles to be applied.

Motor Accidents (Liabilities and Compensation) Act1973 (Tas) , s16(2).

Aust Dig Insurance [1095]

REPRESENTATION:

Counsel:
             Applicant:  A I Gaggin
             Respondent:  R J Phillips
Solicitors:
             Applicant:  Murdoch Clarke
             Respondent:  Phillips Taglieri

Judgment Number:  [2012] TASSC 55
Number of paragraphs:  24

Serial No 55/2012
File No 1119/2011

ANDREW JOHN BOWLES v MOTOR ACCIDENTS INSURANCE BOAD

REASONS FOR JUDGMENT  HOLT AsJ
  24 August 2012

The application

1. This is an application pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s16. The provision gives a cause of action for damages for personal injury against the Motor Accidents Insurance Board to a person injured in a motor vehicle accident in certain circumstances, including where the identity of the motor vehicle being driven negligently and causing the accident cannot be established. However, the cause of action only accrues if the prospective plaintiff gives to the Board notice of intention to make the claim together with a statement of the grounds within three months following the accident or such extended period as the court may allow. The application is to be made within nine months, but this requirement may be dispensed with in the court’s discretion providing that the court is first satisfied that the granting of the application is just and reasonable in the circumstances.

1. The application was filed on 16 December 2011.  An order is sought extending time for giving notice in respect of an accident which occurred on 13 November 2010. 

The material presented as to the circumstances of the accident

1. The evidence in support of the application includes the following.  The applicant was driving his white 1994 Nissan Navaro utility along an unsealed portion of Blessington Road towards Blessington on the evening of Saturday, 13 November 2010.  He was carrying a passenger, Mr Nicholas Andrewartha.  The applicant has no recollection of the accident.  Mr Andrewartha says that the vehicle being driven by the applicant was travelling at about 80 kms per hour approaching a right-hand bend.  There was no evidence of any speed limit applying other than the speed limit for unsealed country roads.   He said that another white utility came around the corner in the opposite direction and on the applicant’s side of the road.  A collision was avoided, but in the process of avoiding the collision the applicant lost control of his vehicle and it ran off the left-hand side of the road and rolled several times down an embankment into bush.  The applicant was thrown out of the vehicle.  The evidence is that the applicant suffered spinal injuries as a result of the accident.  A few hours later the applicant was transported by ambulance to the Launceston General Hospital where he remained an inpatient for ten days.  

1. On 22 November 2010 the Board received a notice of accident form from the applicant along with an application for the payment of scheduled benefits.  The parts of the form requiring a description of the accident were completed by Mr Andrewartha.  In the form he reported that it was coming into dusk, there was poor visibility, the gravel road surface was very loose and that another vehicle on the wrong side of the road was encountered causing the accident.  The form contained the  name and address for Mr Andrewartha and advised that the identity of the other vehicle was unknown. 

1. Plainly the Board envisaged the possibility of an action being brought against it or the driver of the other vehicle.  The Board arranged for a loss assessor to investigate.  The loss assessor attended the accident scene with the applicant on 26 January 2011.  The investigator obtained a detailed statement from the applicant.  The applicant said that he had no recollection of the accident, but that shortly prior the weather was foggy.  He confirmed the name of his passenger.  The assessor took several photographs of the accident scene including a photograph of the applicant’s vehicle which was still down the embankment. 

1. The applicant, despite his serious injuries and having no insurance to compensate him for the loss of his own vehicle, made no attempt to find the other vehicle or its driver.  Neither the applicant nor his passenger reported the accident to the police.  There was no evidence containing the applicant’s explanation for the failure to involve the police.

1. The applicant’s evidence, under cross-examination, was that he had a history of offences of drink driving and driving whilst disqualified in New South Wales where he had been classified as an habitual offender.  At the time of the accident the applicant was serving a period of disqualification, but held a restricted driver’s licence authorising him to drive for work purposes.  Since the accident he has committed two further drink driving offences.  His reading on the last offence was almost three times the legal limit and a sentencing hearing is to occur on 28 August next.  The applicant said, at the time of the accident, he was driving to a house in Blessington to give a quote for some building work.  However, he was unable to give the name or telephone number of the person to whom the quote was to be provided.  He was unable to give the address of the house to which he was travelling to provide the quote.  Although he had a work diary, details of the appointment were recorded on a separate piece of paper which was in the vehicle at the time of the accident, but now cannot be found.  He said that he was intoxicated at the time the ambulance officers arrived.  He said that he had consumed two stubbies of beer earlier in the day, but nothing else prior to the accident.  His evidence continued that he had purchased a bottle of Jack Daniels whisky a couple of days earlier and that following the accident, whilst his passenger was trying to locate assistance, he consumed about two-thirds to three-quarters of the bottle of whisky.   

1. The applicant did not advise the Board of this detail.  In his signed statement made to the loss assessor on 26 November 2011 the applicant made no mention of the consumption of the whisky.  He said in the statement that at the time he held “a full Tasmanian driver’s licence” and that “There are no conditions on my licence”.  As to his driving history the applicant said in the statement “I have been charged with driving whilst disqualified about 12 years or so ago.  I had a speeding ticket when I was about 19 but nothing since.”  At the time of the accident the applicant was aged 40 years. 

1. Mr Andrewartha supported the applicant’s version of events as to the purpose of the trip and the consumption of alcohol.   Under cross-examination he said that the applicant had been with him for several hours before the accident and in that time had consumed two stubbies of beer and no other alcohol.  He said that after the vehicle had rolled down the embankment the bottle of Jack Daniels whisky was found by him on the passenger side floor of the vehicle. He said that the appointment to provide a quote for building work had been made by him but he was unable to give the name of the potential client nor an address or telephone number.  Despite the applicant having been thrown out of the vehicle Mr Andrewartha said that at the time of the accident the applicant was seatbelted.

1. If Mr Andrewartha’s evidence is accepted it would show that the applicant was not driving unlawfully and that the accident was due to the fault of another. 

The delay

1. The applicant was unaware of the possibility of making a claim for damages until he first met with his present lawyer in November 2011.  I now set out the evidence as to the applicant’s dealings with lawyers and Board officers between the time of the accident and the time when he became aware of the possibility of bringing a claim. 

1. The applicant had been in receipt of schedule benefits including an allowance in respect of lost wages.  These payments were terminated in March 2011.  At the time the applicant was interstate attending to family matters.  He was left without funds.  He had a telephone conversation with an officer at the Board to complain about the termination.  He had previous discussions with Board officers.  He said that at no time had he been advised by the Board of the possibility of a common law claim for damages being brought.  This evidence was not disputed.

1. The applicant consulted a lawyer on his return to Tasmania in late April or early May 2011.  The purpose of the consultation was to have the lawyer represent him on a drink driving charge.  The applicant mentioned the accident to the lawyer but was told that the priority was to deal with the drink driving charge.  The applicant did not pay the lawyer’s account.  He said that he was without funds to do so.  The applicant said that because of his inability to pay the account he did not consider it appropriate to return to the lawyer to request advice or assistance in relation to the accident.

1. The applicant obtained some work in May 2011 and so the financial pressure eased a little.  However, in September 2011 he required assistance to pay a rental bond and consulted Anglicare.  He told the Anglicare worker that he had been in receipt of scheduled benefits, but that they had been terminated.  It was suggested to the applicant that he consult a lawyer.  He said that he saw a lawyer at the Launceston Community Legal Service Centre on 13 September and was given the names of a number of legal firms.  He spoke to his present lawyer by telephone on 16 September about the termination of the scheduled benefits.  The lawyer decided to investigate the circumstances of the accident and applied to the police for a report.  The report was issued and advised that the police had not attended the accident scene and had not attended the applicant because “it was requested that there was no need for police”. 

1. The lawyer then saw the applicant on 11 November and explained the possibility of a claim being made under the Act, s16. The applicant gave instructions to proceed. The lawyer gave a notice to the Board on 14 November. The lawyer then obtained some documents from the Board and on 16 December filed the present application.

Prejudice

1. There was no submission on behalf of the Board that it would be prejudiced in meeting the prospective claim by reason of the delay in giving notice.

The application of the material presented to the law 

1. The evidence of the applicant’s passenger, Mr Andrewartha, is sufficient to establish a prima facie case that the accident was caused by the negligent driving of an unidentified vehicle.  In clear cases it may be possible on the hearing of applications of this kind to conclude that a trial would be a futility as there is no prospect of success.  Here, there are reasons to be suspicious about the applicant and his passenger’s version of events, but the case is not so clear cut that the claim, at this stage, can conclusively be characterised as not being viable.

1. In considering the application, fault on the part of the claimant in failing to give timely notice is relevant as is any prejudice which might result from the failure if time is extended.  Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475. The prejudice, which the three month time limit is designed to prevent, is that arising from depriving the Nominal Defendant of the opportunity to follow up any scent there may be whilst it is still warm. Hall v The Nominal Defendant (1966) 117 CLR 423 at 434 – 435.

1. The applicant’s explanation for the failure to give a timely notice was that he was not aware of the possibility of bringing a claim.  This evidence was not challenged.  He had reason to consult a lawyer from March 2011 because his scheduled benefits were then terminated, but he was interstate at the time.  Shortly after his return to Tasmania he obtained some employment and so in any event his claim for weekly payments was diminished.  It is accordingly understandable that he did not deal with the matter with priority.  In September 2011 he needed extra money for a rental bond and wanted to follow-up the matter of the termination of his scheduled benefits.  He was given the names of several legal firms.  He consulted a lawyer by telephone  in September.  After the lawyer had completed some preliminary enquiries he met with the lawyer in November and a notice issued shortly thereafter.  In these circumstances, and assuming, but only for the purposes of considering the application that the evidence as to the circumstances of the accident is not a fictitious concoction prepared by the applicant and Mr Andrewartha to protect the applicant from possible prosecution for driving offences, the applicant’s explanation for the delay is understandable and I do not regard him as being at fault in the failure to give a notice earlier than he did. 

1. Even if the applicant had been at fault, otherwise than by inventing with Mr Andrewartha the circumstances of the accident, I would attach little weight to that feature in the absence of any resultant prejudice to the Board.   There is no such prejudice.  The Board had notice of the alleged circumstances of the accident involving the unidentified vehicle within twelve days of its occurrence.  It undertook investigations and within 2½ months of the accident an assessor had visited the scene, taken photographs and obtained a statement from the applicant.  The assessor also had the contact details for the applicant’s passenger Mr Andrewartha.  As I have said, there was no suggestion on behalf of the Board that if a timely notice had issued further or better investigations could or would have been conducted. 

Conclusion

1. The applicant has a prima facie claim for damages.  The failure to give a timely notice was not his fault, but even if it was no relevant prejudice would be caused to the Board by extending time.  These findings persuade me that it is just and reasonable to extend the three month period for the giving of the notice. 

1. There was no submission on behalf of the Board that in the event that I was to find that the granting of the extension of time application is just and reasonable that, nonetheless, the application should be dismissed for not having been filed within the nine month time limit.  As I have said, there is a discretion to grant an application even if it has been filed out of time.

The order

1. There was some concern as to whether the notice issued to the Board by the solicitor in November 2011 contained all of the information required by the legislation.  For this reason the lawyer issued a second notice on 22 August 2012 and asks that the extension of time be to that date.  There was no submission on behalf of the Board that if it was appropriate to extend time to November 2011 it would be, nonetheless, inappropriate to extend time to 22 August 2012. 

1. It is ordered that the time within which the applicant may give a notice of intention to make a claim, together with a short statement of the grounds thereof, in respect of a motor vehicle accident on Blessington Road on 13 November 2010 is extended to 22 August 2012.