Burnett, Gail v Motor Accidents Insurance Board

[1998] TASSC 102

102/1998

PARTIES:  BURNETT, Gail

v

MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NOS:  M29/1997

DELIVERED:  27 August 1998

HEARING DATES:  21 July 1998

JUDGMENT OF:  Crawford J

CATCHWORDS:

Insurance - Third-party liability insurance - Motor vehicles - Compulsory insurance legislation - Where identity of vehicle cannot be established - Tasmania - Extension of time to give notice of claim - Notice not given within three months - Application to extend time not made within nine months - Considerations applicable.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s16(2), (2A).

Aust Dig Insurance [61]

REPRESENTATION:

Counsel:

Applicant:  C J Bartlett

Respondent:  D J Barclay

Solicitors:

Applicant:  Bartletts

Respondent:  Temple-Smith Barclay

Judgment category classification:

Court Computer Code:

Judgment ID Number:                  102/1998

Number of pages:  6

Serial No 102/1998

File No M29/1997

GAIL BURNETT v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  CRAWFORD J

27 August 1998

The applicant claims that she suffered injuries as a result of an incident which occurred when she was driving a motor vehicle on 6 January 1995. She asserts that her injuries were caused by the negligence of a truck driver who drove too fast on a gravel road and caused rocks to be thrown up and to smash the windscreen of the vehicle being driven by her. She is unable to identify the truck or its driver and, as a result of that, the provisions of the Motor Accidents (Liabilities and Compensation) Act 1973, s16, apply to her.

By s16(1) it is provided that where it is alleged that some person has, as a person using a motor vehicle, incurred a liability in respect of which he or she would be entitled to be indemnified by the Motor Accidents Insurance Board under Pt III of the Act, but the identity of the motor vehicle cannot be established, or that person cannot, after reasonable inquiry and search, be found, the like proceedings may be taken against the Board in respect of that liability, and the like judgment obtained against the Board, as could have been taken or had against that person. By subs(2) it is provided that no action lies against the Board under the section unless notice of intention to make a claim, together with a short statement of the grounds thereof, is given to the Board within the period of three months following the occurrence of the accident, as a consequence of which, the liability in respect of which the action is brought is alleged to have arisen or within such further time as the court may, on application made not later than nine months after the occurrence of the accident, allow. In this case, notice of intention to make a claim was not given to the Board within the period of three months following the occurrence of the accident and an application to extend that time was not made within nine months after the occurrence of the accident. However, by subs(2A), it is provided that notwithstanding subs(2), an application may be made after the expiration of the period of nine months if the court is satisfied that the granting of the application is just and reasonable in the circumstances.

Notice of intention to make a claim against the Board was not given by the applicant until on or after 13 January 1998. On 24 December 1997, the present application was filed on her behalf. Following an amendment, it seeks two principal orders. Firstly, it seeks an order that the time limited by s16(2) in which the applicant may give notice of her intention to make a claim against the Board in respect of the negligent driving of the unidentified motor vehicle on 6 January 1995, be extended. Secondly, it seeks an order that the time limited by the Limitation Act 1974, s5, whereby the applicant may commence proceedings against the respondent in respect of a claim for damages relating to the negligent driving of the unidentified driver on 6 January 1995, also be extended. That Act, s5(1), provides that an action for damages for negligence, where the damages claimed by the plaintiff consist of, or include, damages in respect of personal injuries, shall not, subject to the section, be brought after the expiration of a period of three years from the date on which the cause of action accrued. By subs(3) a judge, after hearing such of the persons likely to be affected by the application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of such an action for such period as he thinks necessary, provided that the period within which the action may be brought does not exceed a period of six years from the date on which the cause of action accrued. In this case, the applicant issued a writ against the Board on 24 December 1997.

The application was supported by the affidavits of the applicant and her solicitor. The applicant was cross-examined and it is with her evidence that I will first deal.

The applicant‘s evidence about the circumstances of the accident was, in summary, as follows. At about 10.15am on 6 January 1995, she was driving her Holden Camira in a general southerly direction towards Ridgley on Mount Road. Shortly prior to the accident she entered an unsealed section of the road which was in the course of being reconstructed. Upon entering it, there was a sign indicating a speed limit of 60 kilometres per hour. She cannot remember whether it appeared to be a temporary sign or a permanent sign because, she explained in cross-examination, the accident occurred three and a half years ago. She cannot remember if the sign was sitting down on the road or up on a post. She cannot remember whether it was at the commencement of the road work or part-way into the road work. She cannot remember whether the road work involved resealing the road or widening it, nor whether the road was entirely of gravel. She said that there were also warning signs indicating that loose stones could be thrown up by moving traffic.

It was her evidence that she slowed to about 60 kilometres per hour upon entering the unsealed section, but before she reached the 60 speed limit sign she saw a truck approaching her in the opposite direction, round what for the truck driver was a left hand corner. She saw that it was throwing up gravel and it was for that reason that she started to slow down. When it came round the corner the truck moved about halfway onto its incorrect side of the road, following which it moved back onto its correct side. In that process there were rocks coming up behind the truck. The applicant estimated the speed of the truck at between 80 and 90 kilometres per hour and described it as extremely fast for that area. As the truck passed, rocks were thrown up onto her car and the windscreen fractured, although pieces of glass did not come out of it. She does not know whether the truck was alongside or had passed at the moment the windscreen fractured because, she said, she was worried about stopping her car without it going off the road.

The applicant was cross-examined about the distance and time over which she observed the truck. She said that she saw it for about half a minute, maybe a minute, and that while she had the truck in her vision, she travelled a distance equivalent to the length of the Burnie court room (a distance of about fifteen metres). Plainly her estimates of time and distance were erroneous. On having her errors pointed out she said: “It was three and a half years ago. This is approximate.” When counsel continued to press her, she eventually appeared to accept that her estimates were erroneous.

Her evidence was that as the truck approached she tried to pull to the left to get her car further out of the way, and she put her right hand against the windscreen to stop it shattering when the rocks hit it. However, she does not think that she had her hand up there at the time the rocks impacted with the windscreen because: “There were too many coming. I put it back on the wheel.” With her car going further over to the left she lost control in the gravel and the rocks hit, but she did not know which of those two events occurred first. When asked what she meant when she said she lost control, she said that the car would not brake properly. However, she has been inconsistent in what she has said about braking. In a Notice of Accident form dated 1 July 1996, which she submitted to the Board when seeking payment of benefits, she described rocks breaking glass in the windscreen and continued: “This startled me. I lost control on the unmade road and braked hard.” In an affidavit sworn on 25 February 1998, she said: “The windscreen shattered, I braked hard and temporarily lost control of my vehicle. Had I not done so, I may well have crashed my vehicle.” In cross-examination she said that when the windscreen broke she tried to stop. She was asked what she did and she said she could not remember. She said she obviously braked and added that she could not remember doing so, but it would have been automatic. She then said that she meant: “I did lose control of the car in the gravel for a little bit and then I had to brake hard to try and get it back.”

She was unable to explain precisely how she came to be injured. In cross-examination she said that when the car came to a stop she was aware that she had hurt her neck and shoulder. She went straight home and to bed and found that she had also hurt her wrist. She discovered that when she got into bed and put weight on the wrist. About three weeks after the accident she attended her doctor, Dr Dow, on one occasion. She further said in cross-examination that at that time her neck and shoulder pain was getting better and her only ongoing symptom was in her wrist. Dr Dow told her to use it and it would get better. In her affidavit sworn on 25 February 1998, she said that after the accident the pain in her neck and shoulder gradually subsided but the wrist pain continued. She told Dr Dow, about two weeks after the accident, about the accident and that the pain in her neck and shoulder had eased, but not the pain in the wrist. He said that the pain would most likely go away and told her to use it more. However the pain did not ease and fourteen months after the accident she consulted Dr Dow again. He sent her for x-rays and referred her to an orthopaedic surgeon and a physiotherapist. The physiotherapist suggested that she see someone other than an orthopaedic surgeon, so Dr Dow referred her to a rheumatologist in February 1997. In that affidavit she further said that since the accident she had suffered intermittent pain in her right wrist, depending on her movements and physical activities. In about March 1997, after completing an eight week course of cortisone, the pain in her neck and right shoulder recurred.

At the time of swearing that affidavit she said that the pain in her neck and right shoulder remained intermittent and daily, and she experienced intermittent pain in her right wrist, depending on her activities. She was not able to do all her housework and had ceased gardening. She was unable to write and type without pain. She had difficulty fastening her bra. She could experience neck pain when driving and her wrist pain could be exacerbated by holding onto the steering wheel. In her second affidavit, which she swore on 9 April 1998, she made no mention of neck or shoulder pain, referring only to having suffered pain in her right wrist since the accident and to it not having improved since the accident. In the two forms she submitted to the Board on about 1 July 1996, when claiming benefits, she made no specific mention of a wrist injury, simply stating that the nature of her injury was muscle and joint pain in her right arm into the shoulder and neck.

I deal next with the applicant’s evidence about her inability to identify the truck and its driver and the possibility of witnesses to her accident. She said that the driver of the truck did not stop or slow down. She knows nothing of brands and types of trucks, but could say that it was a log truck, for she remembers seeing bars which are used on log trucks to hold logs in. She cannot remember if there were logs on the truck. She cannot say if there was any sign writing on the truck. It was just another log truck to her. She said:

“I did ring the Pulp a couple of days or whatever afterwards and said listen, my windscreen got broken. It was one of your trucks ‘cause it had logs on it. And she said she couldn’t say because there were contractors. It could have been anyone.”

She made no further inquiries. She did not advertise in respect of the truck and she did not look for it because she considered there was absolutely no way of identifying it. She said that she did not advertise in a newspaper to see whether she could find any witnesses to the incident because she did not see anyone. She cannot remember whether there were any cars immediately in front of the truck. She does not know whether there were any cars behind the truck. She does not think there were any cars in front of her vehicle and does not know if there were any cars behind it. There were only a few houses in the area, some nearby, although not right nearby. She thought that maybe there were one or two houses and the rest was a farming area. There was a house up the road on the right but she does not remember whether it could be seen from the accident. There was no house right next to the accident. She did not knock on any doors or report the accident to the police.

Concerning her delay in giving notice of her claim for damages, it is apparent that she was aware, certainly before July 1996, that she was entitled to make a claim for damages.

Believing that there may have been a time limit for claiming damages, she looked up a law journal at TAFE and saw a reference to a three year limit for making a claim. Shortly before 1 July 1996 she made her first contact with the Board, by telephoning. She said that she spoke to a man she cannot identify, who undertook to send her a claim form so that she could claim payment of her medical expenses, which he did. It was her evidence that she explained to the man how the accident happened and asked how long she had to lodge a claim for damages, and he replied by saying she had three years in which to do so. He did not tell her that a relevant time limit had expired. I find it difficult to assess the weight of her evidence about this, particularly because she showed a tendency to reconstruct when describing things, and because she did not say that she told the man that she could not identify the truck or its driver. She said that what she was told verified what she had read in the law journal. She had never dealt with the Board before, nor had she been hurt in a motor vehicle accident. As a result of that telephone conversation, she claimed benefits from the Board in a form dated 1 July 1996.

Early in 1997, a solicitor, Mr Paul McGrath, was acting for her with regard to an unrelated matter. She told him that she did not know who the other driver was and that he told her that she could make a claim. He made no mention of a time limit. She said that about four to six months prior to November 1997, possibly roundabout March or April 1997, she spoke to another solicitor, Mr Bartlett. He told her of a much shorter time limit which had expired and informed her that she would need to apply to have the time limit extended. She was cross-examined at length about her conversation with Mr Bartlett and about what she learned from it. I concluded on a number of occasions that she was being deliberately vague and evasive. She said she could not remember what Mr Bartlett told her the precise time limit was, which had expired, nor could she remember whether or not he told her that she would need to act quickly if she wished to apply to extend the time. I found her evidence about those matters unsatisfactory. It was her evidence that she did not believe nor disbelieve what Mr Bartlett had told her, but what he told her raised in her mind a query as to whether there was a three year time limit or not. I did not believe her about that because of the general impression of evasiveness I gained when she was giving her evidence. The conclusion I came to was that, as a result of talking to Mr Bartlett, she was aware that there was a short time limit, possibly as short as three months, and she was certainly aware that whatever it was, it had expired well before the conversation with Mr Bartlett and she would need to apply to extend the time, if she wished to claim damages. I find that she was told by Mr Bartlett to come and see him about the matter, but she then waited possibly four or six months before doing so. She did not give a satisfactory explanation of a particular reason why she delayed, maintaining that she was busy and that she was still within the three year time limit. Possibly two months or so after she spoke to Mr Bartlett, she spoke again to Mr McGrath who confirmed to her that Mr Bartlett was correct about the time limit which applied to her. She still waited, possibly another two months, before she went to see Mr Bartlett for the purpose of proceeding with an application to extend time. She said that she went to him then, in November 1997, because it was almost three years since the accident had occurred. The period of three years was still something exercising her mind, she said. It was her understanding that the Board usually acted on a three year time limit.

It was not therefore until November 1997 that she formally instructed her present solicitor, and she was formally advised by letter dated 12 December 1997 that notice of intention to make a claim should have been given to the Board within three months of the accident. In her affidavit sworn on 25 February 1998, she said that was the first she knew of that requirement. However, cross-examination established that her assertion in that regard was not a candid one, for, as I have pointed out, she had been made aware by Mr Bartlett some months before, that the relevant time limit for her had expired.

On 16 December 1997, the applicant instructed her solicitor to proceed with an application for an extension of time and to file a writ claiming damages from the Board. The writ

and application were filed on 24 December 1997, and on 13 January 1998 they were sent to the Board by way of service, together with a letter giving notice of her claim. The applicant swore affidavits in support of her application on 25 February and 9 April 1998, and her solicitor swore an affidavit on 14 July 1998. The application was heard by me on 21 July.

The purpose of s16(2) is to ensure that the Board is given early notice of an intention to sue it for damages in circumstances where the identity of the motor vehicle which it is alleged was negligently driven, cannot be established. As was said by Barwick CJ concerning a similar provision in Hall v Nominal Defendant (1966) 117 CLR 423 at 435, it is designed to enable the nominal insurer to follow up any scent there may be whilst it is warm. In the same case, Windeyer J at 445, pointed out that claims against a nominal insurer based upon false allegations concerning the presence of an unidentified motor vehicle, can easily be made and are not easily disproved, and a short statutory time limit gives some protection against this, for it enables the authorities to investigate the matter promptly. It should also be understood that the onus of establishing that the time limit ought to be extended rests with the applicant. The time limits prescribed by s16 are prescribed for a purpose, and there must be some ground for setting them aside, something more than a belief that no harm might come of doing so. Windeyer J at 445. There must be shown to be circumstances which create a real reason why the statutory limitations should not take effect. “There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice.” Sophron v Nominal Defendant (1957) 96 CLR 469 at 475. See also Eagling v Attorney-General [1959] Tas SR 185 at 188, and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Dawson J at 544, Toohey and Gummow JJ at 547, McHugh J at 551-554 and Kirby J at 565-568.

In this case, the applicant has failed to persuade me that the time limits of s16(2) should be extended in her favour. There are a number of reasons why I have come to this conclusion.

The time limits which applied to her were, for obvious reasons, short and the delay in giving notice of her claim to the Board was substantial in comparison to them. The primary time limit relating to the need to give notice of her claim, took effect on 6 April 1995. The second time limit, relating to the making of an application to extend time, took effect on 6 October 1995. No notice was given to the Board that she intended to make a claim, or to seek an extension of time to enable her to do so until two years, nine months after the expiration of the first limit, and two years, three months after the expiration of the second. I have not disregarded the telephone conversation she had with the unidentified man, who was presumably an employee of the Board, shortly before 1 July 1996, but the applicant did not assert that during that conversation she said that she intended to make a claim for damages against the Board, based on the negligence of an unidentified truck driver. At the most, all she did was inquire as to the time limit which applied if she wished to claim damages. That conversation, of course, was well after both time limits had expired.

I have also had regard to what seems to be apparent, that the applicant was aware for a considerable period of time that she was entitled to claim damages, notwithstanding that she did not know the identity of the truck or its driver, and yet she did almost nothing to advance that claim against the person or body which would have to face it, until almost three years after the accident had passed. It is apparent that she was aware of that by the time she came to look up a law journal at TAFE for the purpose of checking what time limit might apply to her claim. At some point of time, she came to believe that there was a three year time limit, but by about March or April 1997, or possibly a little later, she was made aware by Mr Bartlett that, in fact, a much shorter time limit applied, and had expired, and that she was already out of time, and yet she continued to delay, so that it was not until the following January that the Board was first informed of what she had had in her mind for a long time. I found her explanation for that further delay, after becoming aware that she

was out of time, as unsatisfactory, particularly because I did not regard her as being totally candid about the events of 1997.

In many respects the evidence of the applicant concerning the circumstances of the incident near Ridgley on 6 January 1995, and how she came to suffer injuries as a result of it, was vague and, according to what she said, she cannot remember some of the facts. It is reasonable to conclude that the Board has now lost any chance it may once have had of identifying and locating the driver of the truck and any witnesses there may have been to the incident. The possibility of finding such people within three months of the incident may not have been high then, but ought fairly be regarded now as virtually extinguished. There is now no doubt that the Board has little hope of effectively defending the question of liability and presenting any evidence which might challenge the applicant‘s asserted memory of the events, which, on her own admission, is poor about a number of matters. There was some significance in the fact that the applicant pleaded passage of time as the reason for some loss of memory.

If the Board had been made aware and given the opportunity within the period of three months after the incident to advertise and make inquiries of homes in the vicinity of the incident, there may have been a chance that the identity of the truck driver could have been established, or that an independent witness to the incident might have been located. Although it is impossible to conclude that definite prejudice has been suffered by the Board because of the time which has passed since then, it is nevertheless a possibility.

In all the circumstances I am not persuaded that it is just and reasonable to extend the time limits imposed by s16(2). The application will therefore be dismissed.