Howell v Motor Accidents Insurance Board
[2005] TASSC 4
•15 February 2005
[2005] TASSC 4
CITATION: Howell v Motor Accidents Insurance Board [2005] TASSC 4
PARTIES: HOWELL, Judith Anne
v
MOTOR ACCIDENTS INSURANCE BOARD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M317/2004
DELIVERED ON: 15 February 2005
DELIVERED AT: Hobart
HEARING DATES: 7 February 2005
DECISION OF: Master S J Holt
CATCHWORDS:
Insurance – Third party liability – 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 – Considerations applicable.
Motor Accidents (Liabilities & Compensation Act) 1973 (Tas), s16.
Aust Dig Insurance [61]
REPRESENTATION:
Counsel:
Applicant: Mrs A G Burrows-Cheng
Respondent: Ms L K Mackey
Solicitors:
Applicant: Murdoch Clarke
Respondent: Ogilvie Jennings
Judgment Number: [2005] TASSC 4
Number of Paragraphs: 17
Serial No 4/2005
File No M317/2004
JUDITH ANNE HOWELL v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR DECISION MASTER HOLT
15 February 2005
The applicant claims that at about 10 am on 7 October 2003 she was the driver and sole occupant of a vehicle travelling in a general southerly direction along the Arthur Highway near Dunalley. She says that a north bound unidentified red car entered her side of the road forcing her to swerve to the left off the road and brake suddenly. She says the result was that she hit her head on the steering well and thereby suffered personal injury. She wishes to commence proceedings against the Motor Accidents Insurance Board (“the Board”) for damages. For the applicant to have a cause of action against the Board she must have given to the Board a “notice of intention to make a claim, together with a short statement of the grounds … within the period of three months following the occurrence of the motor accident … or within such further time as the court may … allow”. Motor Accidents (Liabilities & Compensation) Act, 1973 (“the Act”), s16. For the proposition that the giving of notice is an essential condition of the existence of the right of action rather than merely a bar to the remedy see Hall v Nominal Defendant (1966) 117 CLR 423 at 442 and Johnson v Motor Accidents Insurance Board Tas U/R A79/1976 at p2. A timely notice did not issue and the applicant has applied for an order extending time.
The Act, s16, is as follows:
16(1) Where it is alleged that some person has, as an owner or user of a motor vehicle, incurred a liability in respect of which he would be entitled to be indemnified by the Board under this Part but –
(a) the identity of the motor vehicle cannot be established; or
(b) that person has died or 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.
(2) No action lies against the Board under this 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 3 months following the occurrence of the motor 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 9 months after the occurrence of the motor accident, allow.
(2A) Notwithstanding subsection (2), an application referred to in that subsection may be made after the expiration of the period of 9 months referred to in that subsection if the court is satisfied that the granting of the application is just and reasonable in the circumstances.
(3) In an action under this section, the inquiry and search for the person by whom the liability is alleged to have been incurred may be proved orally or by the affidavit of the person who made the inquiry and search.
As to the discretion “Fixed formulae cannot be substituted for the wide words of the subsection …”: Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475. There is a need to “look at the scope and purpose of the provision and at what is its real object … the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case”. Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473: “In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment …”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554.
The purpose of an equivalent provision, being s65A (now repealed) of the Traffic Act 1925 (Tas), was succinctly identified by Barwick CJ in Hall (supra) at 434 – 435 where he said:
“It is important, when considering the propriety of an exercise of the discretion given by s65A of the Act, to have regard to the general purpose of the section. It is designed to provide a remedy for persons suffering personal injury by the negligent driving or management of an unidentified motor vehicle. Its emphasis and policy is that personal injuries in such circumstances should not go without compensation. By its very nature, however, the action against a nominal defendant given by the Act in such circumstances requires that there be prompt notification of the occurrence out of which the action is to arise ... The first provision will enable the nominal defendant to follow up any scent there may be whilst it is warm. … But the ends which the section seeks to serve require that the time limitation shall not stand in the path of justice.”.
Although each case will depend upon its own facts there are some matters which will usually need to be considered. The first of these involves an assessment of whether or not the applicant has a viable claim. Generally it would not be just to expose a potential defendant to proceedings which are futile: Williams v The Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508. However, it does not follow that an applicant must establish a prima facie case. It may be sufficient “if it appears that the claim is not mala fide, nor merely speculative or absurd”: Pascoe v The Nominal Defendant (Qld) (No 2) (1964) Qd R 373 at 384. Secondly, it should generally be expected that the applicant will explain the failure to meet the time limit and any delay thereafter. Thirdly, any prejudice which the potential defendant will or may suffer will generally need to be taken into account. As to the second and third matters I refer to Sophron (supra) at 475 where the court said:
“There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice within three months must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure.”
Here counsel for the parties did not suggest that I should travel beyond the usual considerations and so I confine myself to a consideration of the viability of the claim; the length of the delay, the explanation for it and the degree of prejudice, if any, which will or may be suffered by the Board if time is extended.
The applicant says that she was run off the road by an unidentified vehicle approaching her on the incorrect side of the road with resultant injury. Under cross-examination the applicant said that when she first saw the other car on her side of the road it was about 200 metres away and agreed that she did not sound her horn or brake immediately. As a consequence of this evidence counsel for the Board submitted that no prima facie case of negligent driving causative of the accident had been made out. I accept that the evidence leaves open a possibility of a finding that the applicant, if she had reacted sooner or more calmly, could have alerted the other driver or safely pulled over to the side of the road, but I reject the submission that there is no prima facie evidence of negligence on the part of the unidentified driver. It is plainly open on the evidence that the manner in which the unidentified vehicle was driven at the very least contributed to the accident. As Deane J said in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 524:
“It is true that, in the context of apportionment legislation which gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances, the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident.”
Next, counsel for the Board submitted that there was insufficient evidence to constitute a prima facie case that the identity of the other motor vehicle cannot be established as required by the Act, s16. The evidence was that the applicant made no enquiries herself to ascertain the identity of the other vehicle and the claimed existence of another vehicle was not reported to the police and so the police made no enquiries. The only evidence of any enquiry came from the applicant when she said, without providing specifics, that her husband had asked around after the accident in an unsuccessful endeavour to identify the other vehicle and its driver. It was submitted that no reasonable enquiry and search had been made and so there was no sufficient evidence to satisfy the precondition. In my view there is sufficient evidence to support a finding that the pre-condition has been satisfied. The applicant’s evidence was that the other car was red, was not a large car and was driven by a man. Beyond this she could not offer information which would assist in the identification of the vehicle. She did not know the year, make or model of the car and did not notice its number plate even to be able to say whether the car appeared to be registered in Tasmania or in another State. She said that the red car did not stop after the accident, that she was not aware of any witnesses other than herself and the driver of the red car and there were no houses in the vicinity to enable enquiries to be made by canvassing the occupants. In my view, there is enough in it to leave it open to a tribunal of fact to conclude that the identity of the other vehicle cannot be established.
The Act, s16, does not expressly require that reasonable enquiry and search be undertaken. Search and enquiry is not an ingredient of the applicant’s prospective cause of action, but lack of it may constitute a defence for the nominal defendant. I refer to Pugh v Pugh (1977) Tas SR 80 at 101 and 102 where Cosgrove J said:
“The proper approach to decided cases is to distil from them principles of law appropriate to the matter before the court. My attempt to do just that in relation to the cases cited leads me to these conclusions:
1 The condition of liability of the nominal defendant is the inability of the plaintiff to discover, from any source the identity of the offending vehicle.
2 That condition must remain satisfied at the date of judgment. If, before that, it becomes apparent that the vehicle can be identified, then the proceedings against the nominal defendant must be halted.
3 If the plaintiff, by action or inaction, which, in his circumstances can properly be described as fault or neglect, has lost a real opportunity to discover the identify of that vehicle, the Court may deny his action against the nominal defendant.
As Crawford J said in Sloehofer v The Nominal Defendant, Unreported (Crawford J, 9 February 1965) ‘it is unlikely that Parliament intended that a person who unreasonably lost an opportunity of making a probably successful enquiry should succeed.’
That the court should impose a sanction of that sort without any apparent statutory authority is not in itself surprising. There are many instances in which the court denies claims because the claimed injury has been in part manufactured by the claimant. The rules as to mitigation of damages constitute but one group of examples. Estoppel is another. Those examples are, indeed, closely related to each other and to this case. The court is, in effect, saying ‘You cannot be heard to say that the identity of the vehicle cannot be established, because although that condition is now fulfilled it is fulfilled only because of your neglect to seek out the wrongdoer. You have created the situation of which you complain and cannot therefore complain of it.’”
In any event, as set out earlier in these reasons, the establishment of a prima facie case is not an essential prerequisite to the grant of an extension of time for giving the required notice. Even if a prima facie case had not been established by the evidence I would still have regarded the evidence as being sufficient to make it appear that the claim was not mala fide nor merely speculative or absurd. Enough facts have been put forward to satisfy me that the claim is viable.
The notice required under the Act, s16, did not issue until August 2004, approximately ten months after the accident. The failure to issue the notice within three months and the delay thereafter is explained by the applicant as follows. The injuries initially apparent following the accident were not great. The applicant suffered a fractured nose, three loosened teeth which later had to be removed and a sore shoulder. She was taken by ambulance to the hospital on the day of the accident and on the same day surgery on her nose was performed. She was discharged the next day and there was some dental treatment and physiotherapy undertaken and some medication prescribed. Medical expenses were being paid by the Board. The applicant did not know that she could claim damages in circumstances where she was unable to identify the other vehicle or its driver. She let the matter be. About five months after the accident, in March 2004, the applicant suffered “a severe headache with associated vomiting and nose bleeds”. She was taken by ambulance to hospital where she remained overnight before being discharged with a referral to a doctor. She saw the doctor in April 2004 and an MRI scan was arranged. The scan showed some bleeding in the brain and the doctor expressed the opinion that it was referable to the car accident. In July 2004 the applicant suffered a seizure and was again taken to hospital. The applicant became concerned about whether her increased medical expenses would continue to be paid by the Board and went to see a lawyer on 17 August 2004. It was at that meeting that the applicant was advised for the first time that a claim for damages could be made even though the other vehicle could not be identified and that there was a three month time limit for giving notice to the Board of intention to make the claim. The notice was sent within a day of the applicant seeing her solicitor.
This explanation was not challenged by counsel for the Board and I have no reason to doubt what the applicant says. It is understandable that she did not know, prior to seeing her solicitor, that she could make a claim and it is understandable that she did not consult a solicitor until it appeared that serious health implications may have arisen from the accident. The failure to issue the notice before August 2004 has been satisfactorily explained.
On the question of prejudice, it was submitted by counsel for the Board that the lack of a timely notice in circumstances where neither the applicant nor the police were investigating the claim deprived the Board of an opportunity of making early enquiries to investigate the claimed circumstances in which the accident occurred and endeavour to find the other vehicle and its driver. As stated in Hall (supra), the purpose of the requirement that there be prompt notification is to enable the nominal defendant “to follow up any scent there may be whilst it is warm”. Accordingly, it was submitted that extending time for the notice so as to enable the applicant to commence an action for damages will result in prejudice to the Board.
I have no reason to think that even with prompt notification, say within two or three days of the accident, that there was any realistic prospect of obtaining better detail as to the circumstances or identifying the other vehicle or its driver. The applicant’s evidence is that besides herself and the driver of the other vehicle she is aware of no witnesses to the actual event. The police had an officer attend the scene on being notified that an ambulance had been called. The police officer arrived after the ambulance had left with the applicant, and observed the applicant’s vehicle at the side of the road. There was nobody else there and the officer simply noted that the applicant’s car appeared to have hit a guide post on the left-hand side of the road. Being unaware of the claim that there was another vehicle involved the police did not make enquiries on the day or days following the accident.
The applicant’s description of the other vehicle is so general that embarking upon an attempt to find it might reasonably have been regarded by the police and others as an exercise in futility. Small to medium sized red cars driven by males are not uncommon. The red car was not damaged in the incident and there is nothing in the evidence to indicate that it was capable of being distinguished from other small to medium sized red cars. By the next day it could have been anywhere in Tasmania or even out of the State. There is no suggestion that the driver of the red car committed a serious offence and the accident did not result in a fatality or severe personal injury. I have no reason to think that if asked the police would have applied significant resources to a search for the vehicle. There were some people, who the applicant believes to be visitors from Sydney, who had called an ambulance and who assisted the applicant when they came upon the accident scene, but the applicant does not know their names and they did not contact the police. Perhaps a public advertisement would have brought them forward, but nothing has been suggested to give rise to a realistic prospect that they would have taken particular note of any red vehicles, sufficient for identification, which they may have passed or which may have passed them as they approached the accident scene. There was no evidence to suggest that the red car was, for example, being driven at excessive speed. In the circumstances I consider that the prompt issue of a notice would have been unlikely to have resulted in a good or even a realistic prospect of the vehicle or its driver being found or extra detail as to the circumstances of the accident being obtained.
Finally, in this regard I take into account that on 10 October 2003, within three days of the accident the Board received from the applicant a claim for scheduled benefits and a form setting out the circumstances of the accident, the fact that the identity of the other driver was unknown, the name of the police officer who had attended the scene and the applicant’s contact details. Although the form did not ask the applicant to state whether she intended making a damages claim and so contained no such notification, the Board, if it wished, was in a position to investigate within a few days of the accident. Accordingly, I conclude that extending time for the notice is unlikely to cause any material prejudice to the Board.
I have found that the claim is viable. The failure to issue a timely notice has been satisfactorily explained. Extending time is unlikely to result in material prejudice the Board. I am of the view that the justice of the case rests with an exercise of the discretion favourable to the applicant, so that she can take advantage of the statutory purpose of providing a remedy for persons suffering personal injury as a result of the negligent driving of an unidentified vehicle. There will be an order extending the time limited for the applicant to give to the Board the required notice.
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