Howell v Nominal Defendant - [1962] HCA 4

HIGH COURT OF AUSTRALIA

McTiernan, Kitto, Taylor, Windeyer and Owen JJ.

HOWELL v. NOMINAL DEFENDANT

(1962) 108 CLR 552

9 February 1962

Insurance

Insurance—Third Party—Action against nominal defendant—Injury by motor vehicle of &hich "identity . . . cannot be established"—Plaintiff unable to specify &hich of more than one vehicle caused injury—Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.), S. 30 (2) (a)*.

Decisions

The following written judgments were delivered: -
McTIERNAN J. This action is brought with the aid of s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.). It is an action to recover damages for personal injury suffered by the appellant in consequence of something like a head-on collision between a motor car he was driving and another car which a man named Black was driving. The action is not, of course, against Black: he is not charged in the action with negligence. The allegation of negligence is made against the owner or driver of a motor car which, as the appellant alleges, struck his motor car from behind and thereby forced it off its course against Black's car. The appellant sues the respondent on the footing that the identity of the overtaking car could not, after due inquiry and search, be established and that the respondent is liable by the Act to pay the appellant damages for the injury he sustained out of moneys provided by the authorized insurers in accordance with Div. 4. The particular feature of the case is that the evidence involves two motor cars in the allegation of negligence, and as to one of them, that driven by Burns, its identity was established before action: and as to the other, described as the grey car, it was clearly open to the jury to find that its identity was not established, after due inquiry and search. (at p554)

3. In directing the jury, Walsh J. said, in effect, that if they found that the collision was caused by the negligent driving of Burns' car they could not give a verdict against the respondent, because s. 30 (2) (a) provides a remedy only if the aggrieved party does not know before action the identity of the car which injured him. But he left it to the jury to find whether, after due inquiry and search, the identity of the grey car could be established and whether the negligent driving of that car caused the collision between the appellant's car and Black's car. The jury found a verdict for the defendant. The appellant applied to the Full Court of the Supreme Court for a new trial of the action on the ground that the directions of Walsh J. are not warranted by s. 30 (2) (a). The majority, Herron and Collins JJ., upheld the directions. Macfarlan J. was of the opinion that the direction as to Burns' car is not correct. (at p554)

4. It is argued for the appellant that he is not deprived of the remedy under s. 30…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howell v Nominal Defendant

Details

AGLC: Howell v Nominal Defendant [1962] HCA 4
Case: [1962] HCA 4
Decision Date: 9 February 1962

CaseChat Overview and Summary

The case of *Howell v Nominal Defendant* concerned an appeal to the High Court of Australia following a decision of the Supreme Court of New South Wales. The appellant, Howell, was the plaintiff in the original proceedings, seeking damages for personal injuries sustained in a motor vehicle accident. The respondent, the Nominal Defendant, was the statutory insurer of the unidentified driver of the vehicle that had collided with the appellant's vehicle. The core of the dispute revolved around the appellant's entitlement to recover damages from the Nominal Defendant.

The High Court was required to determine whether the appellant had satisfied the statutory requirements for bringing an action against the Nominal Defendant. Specifically, the court had to consider whether the appellant had taken all reasonable steps to ascertain the identity of the driver and the owner of the vehicle involved in the accident, as mandated by the relevant legislation. This involved an examination of the appellant's conduct and the adequacy of his efforts to identify the responsible parties prior to commencing proceedings against the Nominal Defendant.

The court's reasoning focused on the interpretation of the statutory provisions governing claims against the Nominal Defendant. It was held that the obligation to take all reasonable steps was a condition precedent to the right to sue the Nominal Defendant. The court analysed the evidence presented regarding the appellant's actions following the accident, including his inquiries and the information he obtained. Ultimately, the High Court found that the appellant had not discharged his onus of proving that he had taken all reasonable steps to ascertain the identity of the driver and owner. Consequently, the appeal was dismissed.

Orders