Gregory v Nominal Defendant

[2000] QCA 354

[2000] QCA 354

COURT OF APPEAL

PINCUS JA
MOYNIHAN J
ATKINSON J

Appeal No 11337 of 1999

PETER LEE GREGORY                   Appellant (Plaintiff)

and

NOMINAL DEFENDANT                  Respondent (Defendant)

BRISBANE

..DATE 30/08/2000

JUDGMENT

PINCUS JA:  This is an appeal from an order dismissing an application pursuant to section 4F(4)(b)(ii) of the Motor Vehicle Insurance Act 1936, the application being for an extension of time within which to bring an action against the Nominal Defendant.  Under the Motor Accident Insurance Act 1994 section 104(2) the Court had to deal with the matter as if the 1994 Act had not been enacted. That is the Court had to deal with it under the 1936 Act.

The application was based on affidavit material from three deponents none of whom was cross-examined.  Among the facts
deposed to were those set out in the following paragraphs.

The appellant, an Aboriginal man, was born at Mt Isa on
12 February 1979, but because his mother had an alcohol problem he was raised by his mother's brother and sister at Doomadgee until September 1992 and then with the mother's sister-in-law at Doomadgee. 

A police record, if correct, shows that at 6.30 p.m. on
5 December 1992 at Doomadgee on a straight level road an unregistered station sedan apparently driven by Revolda Moreland a male born about 1 January 1977 overturned.  The vehicle was said to be owned by D C McPherson and was at the time occupied by five people.  A road test, presumably by breathalyser, was administered and the result was "under or nil".  The report said the vehicle was travelling west along the Doomadgee to Hellsgate Road and started to slow down.  The report goes on, "Slammed on brakes when something blurred his vision, lost control and ran off road.  Rolled several times."  The report records that the appellant was a passenger, that he suffered head injury and was admitted to hospital and that a restraint (presumably a seat belt) was "fitted - not worn".  It also recorded that another named person suffered injury. 

The hospital report gives details of the appellant's admission to Mt Isa Base Hospital.  It appears that he was unconscious and had a respiratory arrest at Doomadgee Hospital and was taken by plane to Mt Isa where he was paralysed on arrival.  His consciousness level improved slightly on the day after admission though he appeared to have some right-sided focal weakness.  He apparently improved in consciousness over the next few days and was discharged from the hospital three weeks after admission. 
The report said, "There was concern that early discharge might prejudice his full rehabilitation from his injuries.  He has not been seen since he left the hospital."

According to the appellant's affidavit he finished school in Grade 8.  He said, "I write a little bit but my reading is poor."  He claims to have no recollection of the accident discussed above and says he felt very confused in and after his spell in hospital.

He obtained a job at Spoon Creek Station at about 16 years of age and has stayed in that job.  That is significant because his Honour suggested in his reasons, in effect, that he might have been able to obtain information about the legal system while at that station. 

The appellant's symptoms since his return to Doomadgee have included memory loss, concentration difficulties and speech difficulties.  He went from Doomadgee to Mt Isa in March 1999 for several weeks for the birth of a baby.  While there he went to see a solicitor at the suggestion of the Aboriginal Legal Aid solicitor in Mt Isa which was that he seek legal advice about his accident.  The appellant gave as a reason for not having previously sought legal advice that "it did not occur to me to do so".  He said he "knew nothing of legal matters or any matters outside those which happened to me on a daily basis in my life at Doomadgee".  It was argued before the primary Judge that his Honour had no discretion to grant an extension of time, but that was rejected.

The Judge found that the appellant had provided a satisfactory explanation of his failure to dispel his ignorance of the possibility that he might have had a cause of action for the injuries suffered, but his Honour rejected the application, as a matter of discretion.  His Honour referred to remarks made in an unreported decision in 1975.

"We have had occasion on a number of occasions to speak of the requirements of the law in reference to people who are ignorant of the provisions of the statute, and I do not propose to refer to them again.  It is sufficient for my purpose to say that the fact is that he, having an interest in knowing whether there was any means by which he could recover damages against anybody for anything arising out of the accident, took no steps to find out just what his rights were in the matter, and I think he was the person who had an interest in finding out.  Because he has taken no steps to find out what his rights were in my opinion he has not established that the failure to give notice was not occasioned by any act or omission on his part."

His Honour referred to the facts of that case, but it is unnecessary to set them out here.  In discussing the discretion, the Judge also applied remarks made by Stable J in Morrison v. Nominal Defendant [1966] QdR 18 at 19:

"But I do not consider that a simple tale of ignorance suffices.  Though I am by no means without doubt of the correctness of my view of this vague portion of the Acts, I consider that ignorance upon a matter of immediate personal concern ordinarily inspires inquiry.  The proposition then becomes one of 'I did not know because I did not take the trouble to ask in the three months available for the purpose'.  I am well aware that in many instances the three months may be spent in such a state of physical or mental incapacity that a prospective claimant is literally unable to do anything to comply with the section.  But that is not this case."

The learned primary Judge said that those observations "do apply to the facts of this case in so far as I must exercise my discretion". 

At paragraph 38 his Honour said:

"It is clear from the police report obtained by

Mr Moffatt in April 1999 that the police investigation was completed on 22 January 1993.  Reference to that investigation shows that at the time of the completion of the report the driver Moreland was unlicensed.  It is also stated in the report that the vehicle concerned was unregistered."

Those remarks were made by his Honour in the course of discussion of the first point in the case, that is whether or not he had a discretion to grant the application.  Unfortunately, when discussing the ultimate question, in the second last paragraph of his Honour's reasons, he said this:    "It appears from the material that all police notebooks, reports, et cetera prepared in the course of police investigations had been destroyed."

The two passages are, in my view, irreconcilable. 
Mr Clifford, in his helpful address, has suggested a reconciliation but in my opinion the appellant is entitled to take both statements at face value and the latter is simply and regrettably erroneous.

As I have explained, the way in which the accident happened, according to the driver, and other details, presumably all the police ever knew of the accident, are contained in a report which is still extant.  The Judge emphasised the prejudice which the Nominal Defendant suffered as a result of the non-notification.  His Honour said:

"Inevitably the Nominal Defendant's ability to deal with the issues of whether the applicant failed to use a seat belt, and the nature and extent of the duty of care owed by the unlicensed 16 year old car driver to the 14 year old applicant passenger in the circumstances of this motor vehicle accident which happened seven years ago would seem to me to be greatly inhibited by the delay."

It appears from the police report, as I have mentioned, that there was a failure on the part of the appellant to use a seat belt.  As to the nature and extent of the duty of care, it is of course possible that if, by about two years after the accident the appellant had given notice to the Nominal Defendant, as the Judge apparently thought he ought to have done, some evidence might have become available raising or lowering the extent of the duty to which the Judge refers.  But that seems unlikely.

In any event, the apparent error referred to above with respect to the destruction of all police records requires, in my view, that the Court exercise the discretion afresh.  It does not appear to me that the remarks made in Morrison which the learned Judge thought applied to the facts before him are of any real assistance.  Here there was more than a "simple tale of ignorance".  The ignorance was that of a youth brought up in Doomadgee, so the unchallenged evidence shows, largely in ignorance of events in the outside world.

A more recent case, to which it appears the Judge was not referred, on the relevance of lack of knowledge of rights, decided in this Court, is Moffatt v. Nominal Defendant (1994) 20 MVR 134, a judgment of a Court consisting of McPherson JA, his Honour Justice Ambrose and myself. There, the injured person was unaware of the legal position. Although he engaged a solicitor, Moffatt failed to tell him that the vehicle concerned was neither registered nor insured; hence the necessity to apply to extend time. In holding that an extension should have been granted, the majority of the Court referred to the fact that the appellant's ignorance of the legal position was not the only factor which operated; the Court mentioned the appellant's poor understanding of the broader aspects of the system of compensating people in his situation. The Court concluded that it should have been held that the appellant did not tell his solicitor the facts relating to the vehicle which I have mentioned, namely that it was neither registered nor insured, because he did not appreciate that it was necessary to do so.

If it is the case, as Justice Stable thought, that ignorance upon a matter of immediate personal concern ordinarily inspires inquiry, that can hardly apply to a person with the disadvantages that this appellant had.  If one is to compare the facts of the cases, it seems clear that this appellant was much more seriously disadvantaged, as regards knowledge of and access to the legal system, than was the successful appellant in the case of Moffatt v. Nominal Defendant.

In my opinion, the apparent error which the Judge made towards the end of his judgment is such as to necessitate reconsideration of the outcome arrived at.  It should be noted that the appellant, having no memory of how he sustained his injury, could presumably prove nothing at all in his own case except by use of the information in the police report.  It is my opinion, taking into account the availability of the police report, the appellant's quite serious head injury and his disadvantages living in a remote community and having little general knowledge, that the appeal should be allowed with costs and the extension of time granted.

MOYNIHAN J:  I agree.

ATKINSON J:  I agree.

...

PINCUS JA:  The orders will be in these terms:

(1)That the period of time for giving notice of claim under section 4F(4) of the Motor Vehicles Insurance Act 1936 be extended to 26 March 1999;

(2)The costs of the application be costs in the cause in the action brought on 26 March 1999;

(3)That the respondent pay the costs of this appeal to be assessed.

...

‑‑‑‑‑