Hyland v Transport Accident Commission

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BENDIGO

COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S ECI 2023 01492

BETWEEN:

DE-ANNA HYLAND	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	The Honourable Justice Forbes
WHERE HELD:	Bendigo
DATES OF HEARING:	30 September, 1 October 2024 and closing submissions 4 October 2024 in Melbourne
DATE OF JUDGMENT:	22 October 2024
CASE MAY BE CITED AS:	Hyland v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2024] VSC 641

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NEGLIGENCE — Transport accident between vehicle and cyclist — Whether vehicle an unidentified vehicle — Requirement to make reasonable inquiries — Requirement to give notice — Material prejudice — Transport Accident Act 1986 (Vic) s 96 — Vines v Djordjevitch (1955) 91 CLR 512 — Harrison v Nominal Defendant (1975) 7 ALR 680 — Lakic v Transport Accident Commission [2014] VSC 291.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Mighell KC S Mullaly	Arnold Dallas McPherson Injury Lawyers
For the Defendant	A Moulds KC K Manning	Transport Accident Commission

Contents

A.. Introduction

B.. The evidence

B.1          De-Anna Rullo
B.2          Glenda Rullo
B.3          Troy Hyland
B.4          Laurdah Hyland
B.5          McPherson
B.6          Timothy Carrodus
B.7         Natalie German

C.. Applicable legislation

D.. Submissions

D.1 Facts
D.2Compliance with s 96 of the Act

E... Findings

E.1Identification of the vehicle under s 96(8) of the Act
E.2Compliance with notice requirements in s 96(2) of the Act

Annexure A

HER HONOUR:

A Introduction

Ms De-Anna Hyland née Rullo (the plaintiff)[1] broke her right leg whilst riding her bicycle on 21 January 2017. She alleges her injuries were caused by a vehicle that cannot be identified (the unidentified vehicle) that was travelling in the same direction as her on Lake Boga–Ultima Road, Lake Boga. The accident occurred at the intersection of that road and Long Lake Road, heading east towards Lake Boga. The plaintiff alleges that this unidentified vehicle caused her to fall from her bicycle (the accident) and did not stop at the time. Whilst waiting by the roadside for an ambulance after the accident, a vehicle did stop to render assistance (the good Samaritan vehicle).
[1]Hyland was the plaintiff’s married name and her preference is to be referred to by her maiden name of Rullo.
The plaintiff was riding in an easterly direction along a sweeping curve of Lake Boga–Ultima Road with Long Lake Road coming to a T-intersection on her left. The road was bitumen with one lane in each direction and a gravel verge. Long Lake Road was also a bitumen road and the bitumen extended across the intersection. The intersection is shown in the aerial photograph annexed to the interrogatories for the examination of the plaintiff and was marked by her answers as to the location of the accident. It is exhibited to these reasons as Annexure A.
The claim is made against the Transport Accident Commission (TAC, the defendant) pursuant to s 96 of the Transport Accident Act 1986 (Vic) (the Act) on the basis that the plaintiff has been injured in a transport accident involving an unidentified vehicle.
The factual issues in the case are:
(a)Whether the unidentified vehicle passing at the time of the accident caused the plaintiff’s fall from her bicycle; and
(b)If so, whether there was negligence on the part of the driver of that vehicle that was a cause of the plaintiff’s injury, loss and damage.
Neither the unidentified vehicle nor the good Samaritan vehicle have been identified, giving rise to the third factual dispute:
(c)Whether the good Samaritan vehicle was the same car as the unidentified vehicle.
The three factual disputes give rise to the following questions:
(a)Is the vehicle alleged to be at fault an unidentified vehicle within the definition of s 96(8) of the Act; and
(b)If so, has the plaintiff complied with s 96(2) of the Act such that she is able to recover against TAC pursuant to s 96(1)?
The quantum of damages has been agreed. The plaintiff was taken by ambulance from the scene of the accident to the Swan Hill District Hospital. X-rays revealed a comminuted fracture of the distal tibial shaft, distal fibular shaft and the malleolus in her right leg. The following day, she was transferred to Mildura Base Hospital where she remained until 24 January 2017. At that time, she was transferred to St Vincent’s Hospital in Melbourne and underwent surgery to her leg on 25 January 2017. This was performed by Mr Roger Bingham, orthopaedic surgeon. She was discharged from St Vincent’s on 31 January 2017. Her recovery has been delayed by persistent non-union of the distal tibial fracture with ongoing physiotherapy and rehabilitation. Eight further surgeries have occurred between November 2017 and January 2019.

B The evidence

The plaintiff gave evidence and also called her mother Glenda Rullo, her former husband Troy Hyland and her eldest daughter Laurdah Hyland. For ease of reference I will refer to each of these witnesses by their first name. In addition, John McPherson, (McPherson) solicitor for the plaintiff gave evidence.
The defendant called Timothy Carrodus (Carrodus), a private investigator engaged by TAC. His investigation included an interview with Troy on 29 August 2022. Senior Constable Natalie German (German), the police officer who received Troy’s report of the accident at the Mildura police station was also called.
Various documents were tendered, including Annexure A. It marked the plaintiff’s recollection of the position of herself, her family members and the vehicle at the time of the accident. Extracts of McPherson’s file were tendered.

B.1 De-Anna Rullo

It was uncontroversial that the plaintiff was cycling with her family near their home on the Lake Boga-Ultima Road on a road bike and described herself as a moderately experienced cyclist. The family were travelling single file with the plaintiff’s two youngest children Maddox, then aged eight, and Elektra, then aged seven, riding ahead of her.[2] She said her eldest daughter Laurdah, then aged 12, was riding behind her and Troy was bringing up the rear.
[2]Nb at hearing Senior Counsel for the plaintiff referred to Maddox being nine years old and Laurdah being 13 years old at the time of the accident, being 21 January 2017. Their ages as referenced above are based on the birthdates provided by the plaintiff at hearing; see Transcript of Proceedings, Hyland v Transport Accident Commission (Supreme Court of Victoria, S ECI 2023 01492, Justice Forbes, 30 September, 1 October and 4 October 2024) 1.31–2.1; 25.2–7 (‘T’).
The plaintiff said that as the family were cycling past the intersection with Long Lake Road, Troy called out that there was a car coming from behind. The plaintiff said she moved to the left of the road. She was adamant that she remained on the bitumen rather than the verge as her road bike was not designed to be ridden on gravel.[3] Just as she reached the far side of the T-intersection, where the gravel verge recommenced, the car passed very close and brushed her right thigh, forcing her off the road and onto the unmade shoulder.[4] She believed the vehicle did touch her.[5] She said she became unsteady and lost control of the bike , falling on her right leg.[6] She recalled the sound of her leg breaking, but otherwise recalled little of the aftermath of the accident and no details of the car involved.[7]
[3]T 5.10–6.
[4]T 5.22–9.
[5]T 5.24.
[6]T 5.27–9.
[7]T 6.22–7.6.
The plaintiff recalls the ambulance took some time to arrive.[8] She cannot recall the movements of Troy or her children, nor talking to the ambulance officers.[9] She also said she has no recollection of her time at the Swan Hill District Hospital nor of talking to medical personnel at the Mildura Base Hospital.[10] Under cross-examination, the plaintiff assumed that she did have discussions with medical personnel at both hospitals after the accident but is unable to recall any of them.
[8]T 7.8–9.
[9]T 7.16–25.
[10]T 7.26–8.4; 10.23–11.2.
Immediately following the accident, a call to emergency services for an ambulance was made by Laurdah. The plaintiff said she had not heard the recording of that call. It was put to the plaintiff in cross-examination that during the call she was asked by Laurdah if she was hit by a car and that she had answered no. She said that this was not consistent with her memory of what had happened. The call was then played to the plaintiff and it was suggested that it demonstrated Laurdah repeating questions from the operator to her mother and relaying answers. Those answers included Laurdah saying that her mother was not hit by a car. The plaintiff said if that was so, it was inconsistent with her memory of what had happened.[11]
[11]T 9.28; 10.2.
In cross-examination various histories were put to the plaintiff:
(a)ambulance notes which recorded ‘[Patient] reports riding her bicycle at walking speed and then stopping suddenly, when putting her leg down hearing a snap’.[12] The plaintiff said she was travelling a little faster than walking speed and did not stop suddenly;[13]
(b)a letter from the Swan Hill District Hospital dated 22 January 2017 which states ‘[The plaintiff] was riding a bike and attempting to stop. She tried to pull her foot out of the pedal, and once she did, landed awkwardly on her right foot’.[14] The plaintiff said she didn’t think she had a strap over her foot that day.[15] The plaintiff had also said that her bicycle did not have cleats on the pedals;[16]
(c)the St Vincent’s Hospital discharge summary dated 31 January 2017 which read ‘riding bicycle, attempted to stop. —foot got caught in peddle and landed awkwardly onto right foot’.[17] The plaintiff said that was not what had happened;[18]
(d)the instructions she gave to her lawyer McPherson on 1 February 2021 was that there was ‘very light contact’ from the vehicle that left her ‘nowhere much to go’ and ‘caused imbalance’.[19] The plaintiff said she did not recall telling McPherson that information;[20]
(e)a medical report of Dr David Murphy from an attendance on 30 April 2021 for a joint medico-legal assessment recording ‘a car approached from behind … She collided with the bikes of the children and her foot became stuck in a peddle causing her to fall with all her weight on her right foot’.[21] The plaintiff said she did not believe it was true that her foot got stuck;[22]
(f)the plaintiff’s affidavit sworn 16 February 2023 in support of her serious injury application describing ‘a vehicle that passed very close to my bike, causing me to wobble, become unsteady, and then fall off my bike.’ [23] It was put to her that there was no contact between herself and the car and that the plaintiff knew this at the time of swearing her affidavit.[24] The plaintiff denied both of these propositions.[25]
[12]Amended Joint List of Key Documents, Hyland v Transport Accident Commission (Supreme Court of Victoria, S ECI 2023 01492) 50 (‘CB’).
[13]T 13.28–9; 14.1–4.
[14]CB 191, which forms part of tendered exhibit H.
[15]T 16.7–8.
[16]T 14.11–4.
[17]CB 56, which forms part of tendered exhibit E.
[18]T 15.11–6.
[19]T 25.14–8.
[20]T 26.3.
[21]CB 96, which forms part of tendered exhibit G.
[22]T 19.5–9.
[23]CB 41 [7], which forms part of tendered exhibit F.
[24]T 20.2.
[25]T 20.4.
In light of all these histories, it was put to the plaintiff that what occurred was that having heard her former husband called out, she moved too far left onto the gravel, lost balance, couldn’t get her foot out of the pedal and landed awkwardly.[26] The plaintiff denied this, saying she would never go off the bitumen on purpose.[27]
[26]T 16.11–6.
[27]T 16.16–7.
The evidence of both the plaintiff and her husband was that their relationship was breaking down prior to the accident and ended shortly thereafter with Troy leaving the family home completely around Easter of 2017.[28]
[28]In 2017 Easter Sunday fell on 16 April. The plaintiff noted at the hearing that the ‘Centrelink date’ of separation was a date in May 2017, see T 20.28–9; 21.1-5.
As to steps to identify the vehicle, the plaintiff said she did not do anything herself about trying to find the driver of the vehicle in the weeks following the accident and saw a lawyer for the first time in 2019. The plaintiff was taken to a file note produced by McPherson on 1 February 2021 from an attendance with her on that date recording that Troy stopped and spoken to the driver. When asked how she knew this, the plaintiff said that she did not in fact know that. It was suggested that she had told the lawyer this information to which she replied ‘I don’t know. I don’t recall that’.[29]
[29]T 25.31–26.3.

B.2 Glenda Rullo

The plaintiff’s mother was called to give evidence of events following the accident. Glenda lived a short distance from the accident site. She said that a woman came to her home on the day of the accident with one or two of her grandchildren. Glenda described the woman as ‘middle aged’ and ‘just an ordinary lady’.[30] Glenda, the woman and the grandchildren arrived back at the accident site before the ambulance.[31] Glenda was asked whether she observed the colour of the car the woman had been in and Glenda said she could not recall.[32] In cross-examination it was put to her that the woman drove the children to her house but Glenda denied this and recalled the woman had walked to her house with the children and then Glenda drove everyone back to the accident site.[33] Glenda agreed that she was very upset when told that her daughter had been involved in an accident.[34] Nevertheless, Glenda said she was able to observe that the woman that she met was not panicked in any way.[35]
[30]T 28.1–4.
[31]T 28.9.
[32]T 29.17.
[33]T 29.31–30.8; 30.9–14.
[34]T 31.8–12.
[35]T 31.15–9.

B.3 Troy Hyland

Troy described becoming aware of a car coming from behind at speed and rather close immediately prior to the accident.[36] He described the car as going so close so as to knock the plaintiff from her bike.[37] Following the accident he said he rode after the car. He said he was very angry and was yelling as he rode after the car.[38] He said that the car slowed but did not stop before is sped up and left the scene.[39] He said he was not looking at the registration of the car when he was chasing it.[40] He said that he reported the accident to the police some days later, speaking to an officer at the front desk of the Mildura police station.[41]
[36]T 35.6–7.
[37]T 35.9–10.
[38]T 35.22–3.
[39]T 35.16–20; 55.3–4.
[40]T 37.3–9.
[41]T 37.12–20; 41.25–6.
Troy said that he believed the car was a dark colour although he was not 100 per cent sure, nor could he be completely sure whether the car struck the plaintiff or not.[42] He was asked about the distance behind the plaintiff that he was at the time of the accident by reference to Annexure A. Troy said that on his recollection he was closer than depicted in the photograph. On the other hand, he also agreed that he was about 30 metres away.[43]
[42]T 40.23–4; 41.4–7.
[43]T 39.7–19.
Troy was asked about a statement prepared from an interview with an investigator, Carrodus. Troy said he told Carrodus he couldn’t remember what happened and Carrodus suggested he could write it and Troy could agree to it.[44] In this way he said Carrodus had more or less told him what to say.[45] Troy says he told Carrodus that he agreed with the statement so Carrodus would leave,[46] but he never signed the statement because he didn’t a agree with what was written.[47] Troy was taken through his unsigned statement which he broadly agreed with, except for a section that read ‘a short time later a vehicle came to our assistance but I am unable to say if this was the same vehicle that apparently hit my wife earlier’. Troy denied that he said this and stated he ‘knew it wasn’t the same vehicle’ and had told Carrodus this at the time of the interview.[48]
[44]T 52.13–8.
[45]T 52.5–6.
[46]T 51.21–6; 52.17–8.
[47]T 52.19–20.
[48]T 56.7–22.

B.4 Laurdah Hyland

The plaintiff’s daughter Laurdah was called. She was 12 years old at the time of the accident. She said that there was not a lot that she remembered of the day, but that she did recall riding behind her mother, catching up to her and seeing her mother on the ground.[49] Laurdah observed that her mother’s leg was twisted and broken but she was unable to describe how it was that her mother came to fall off her bike.[50] She tentatively said that she thought a car had come past shortly before she came upon her mother on the ground.[51] She said that she thought the car that passed was silver.[52]
[49]T 83.8–11.
[50]T 83.16–23.
[51]T 83.26–3.
[52]T 83.27.
The emergency services call was played. Laurdah identified her voice and was asked to repeat what she had said to the operator from what she had heard on the recording. At the hearing she said, ‘I said that there was a car, she’s off her bike’.[53] Laurdah was asked about the section of the recording when the operator asked if her mother was hit by the car and Laurdah answered ‘no’. She was asked what led her to give this answer and she said ‘I don’t think I saw her, the car hit her and I think, I’m assuming I must have spoken to someone, mum maybe and they would’ve said like “No”, like, “I wasn’t hit by a car”’.[54]
[53]T 84.8–11.
[54]T 84.18–24.

B.5 McPherson

The plaintiff’s solicitor, McPherson, was called. The plaintiff’s first contact with his firm was a telephone call with a legal assistant on 27 May 2019. The history recorded on that occasion was that the plaintiff was ‘on a pushbike and car came around corner too fast and struck her’.[55] On that same day there was a telephone call between McPherson and the plaintiff, which was recorded in a file note dated 29 May 2019.[56]
[55]CB 270.
[56]CB 271; T 64.8–11; 64.26–9.
In cross-examination McPherson was asked about a letter he wrote to the plaintiff on 7 December 2020. It was suggested that by that time he wanted to put the various inconsistent histories to her and have a discussion about what had occurred. He wrote:
I would be greatly assisted if you would provide me, to the best of your recollection, a dot point description of exactly how the accident occurred, detailing what the driver of the vehicle did wrong (which I assume is likely to be a little more sophisticated than observing that they approached too close to your right side, forcing you off the road, beyond its left boundary).
McPherson said his office collected medical records, police reports and other information until on 1 February 2021 there was another substantive phone conversation. That file note records ‘Was in contact with car with right leg, more at level of thigh, very light contact with her, nowhere much to go, caused imbalance. Next thing remember: noise of leg breaking, like snapping a twig’.[57] There was also a note recording ‘proof of car being present?’ with a reference to ‘Troy stopped the driver and spoke to them, (younger) kids were driven to De-Anna’s mother’s place’.[58] McPherson said that he did not have an independent recollection of speaking with the client on that day beyond what is recorded in the notes so he is unable to identify the source of various information recorded.
[57]T 65.22–6.
[58]T 65.31–66.5.

McPherson then wrote a letter on 12 February 2021 to TAC said to be in compliance with the requirements of s 96(2) of the Act. The letter in part reads:
We act for Ms Hyland was has only recently sought legal advice.
She was injured by the driver of a vehicle who and which (at least at this stage) remain unidentified.
This is notwithstanding the fact that the allegedly negligent driver delivered some of her children to her parents’ home immediately after her accident (while she was being transported by ambulance around country Victoria with sickening lower leg fractures). We appreciate that s 96(2) requires various particulars to be provided by us to you but the relevant material (name and address, date and place of accident, general nature of injuries and circumstances of the accident) are all outlined in her claim form and no doubt in the numerous medical reports you have in your possession.
…
Our client was riding her bicycle with her three children and now estranged husband. A car approached her from behind and made contact with her right leg at around the level of the thigh causing imbalance on her part and fall from the bicycle during which she placed her right leg on the ground breaking it.
Our client’s estranged husband stopped to the driver and spoke to him. Again, the younger children were taken to her mother’s house by the allegedly negligent driver…We would be grateful for your confirmation that you consider this letter compliant with the requirements of section 96(2).[59]
[59]CB 272–3, which forms part of tendered exhibit 3.
McPherson said based on his notes he could not see a justification for advising TAC that it was the allegedly negligent driver who drove the children to their grandmother’s home. He believed that it was done on the basis of the police report, which was consistent with what he had written to TAC.
When asked about the source of the information contained in the letter to TAC of 12 February 2021 and in the file note that preceded it, McPherson said ‘I don’t think the information came from the client, frankly, I think it’s come from other sources and me putting it to her or me suggesting to her that’s what’s occurred, perhaps she’s adopted what I have put to her I’m not really sure. All that was clear to me was that she was in agonising pain and absolutely panicked at how her leg was at a right angle to her person’.[60]
[60]T 76.6–8.

B.6 Timothy Carrodus

Carrodus confirmed that he attended the accident site on 29 August 2022 and took photos. Under cross-examination he agreed the precise site of the accident was a ‘pinch point’ where the bitumen narrowed past the intersection and represented ‘quite a dangerous area of road’.[61]
[61]T 95.30–96.4.
Carrodus said the interview he conducted with Troy on 29 August 2022 was for the purpose of discussing the circumstances of the accident. He said his recollection of the conversation is ‘not totally clear’.[62] Carrodus stated that the document produced from this conversation is a record of Troy’s answers to questions asked by Carrodus following a template provided by TAC. Following the interview, Troy informed Carrodus that he did not want to sign the statement and wanted ‘to think about it’.[63] Carrodus said he has not heard from Troy since.
[62]T 92.26–8.
[63]T 92.7–9.

B.7 Natalie German

German confirmed she was a Constable at the Mildura police station in January 2017 but stated she had no memory of interviewing Troy then or of completing the traffic incident report.[64] Under cross-examination she confirmed that such reports would sometimes be taken at the front counter of the police station and that the information could be put into a computer directly at the time of the interview or otherwise written down and then put into a computer at a later time.[65] She could not say now, how this report was produced. German also confirmed that the person making a traffic incident report would not usually be asked to read the report so any error would not be drawn to the attention of the person reporting the incident.[66]
[64]T 98.24–5.
[65]T 99.10–7.
[66]T 99.23–6.

C Applicable legislation

At the time of the accident, s 96 of the Act relevantly provided:
1)   Where a person is injured or dies as a result of a transport accident involving the driving or an unidentified vehicle or an unindemnified vehicle, a natural person who could have obtained a judgment against the owner or driver of that vehicle may recover in proceedings against the Commission a sum equivalent to the lesser of—
a.   the amount for which the person could have obtained judgment against the owner or driver of that vehicle; or
b.   the amount for which the Commission would have been liable if that vehicle had been identified and subject to the indemnity under section 94.
2)   Damages in respect of a transport accident involving the driving of an unidentified vehicle can only be recovered if—
a.   the person, within a reasonable time after he or she knew that the vehicle was an unidentified vehicle, gave the Commission notice in writing of intention to make the claim, setting out—
i.the full name and residential address of the person who died or was injured and, as appropriate, the full name and residential address of the person seeking to recover damages; and
ii.the date and place of the accident; and
iii.the general nature of the injuries; and
iv.a short statement of the circumstances of the accident; or
b.   where notice is not given as required by paragraph (a), the person satisfies the court that the Commission has not been materially prejudiced in its defence to the proceedings for the recovery of damages by any failure of the person to give the notice at the proper time or by any omission or insufficiency or defect in the notice.
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8)   …
unidentified vehicle means a vehicle the identity of which cannot be established as at the date of an accident, and which remains unidentified at least until the commencement of proceedings under subsection (1).
Neither party could identify any cases considering the definition of an ‘unidentified vehicle’ under s 96(8). A similar provision in the predecessor Motor Car Act 1951 (Vic) (‘Motor Car Act’) does provide guidance. Like s 96 of the Act, s 47(1) of the Motor Car Act permitted recovery of damages against a nominal defendant when ‘the identity of the motor car cannot be established’. The High Court has held that ‘established’ in this context means ‘ascertained definitely or with reasonable certainty’.[67]
[67]Vines v Djordjevitch (1955) 91 CLR 512 at 521 in respect of the Motor Car Act 1951 (Vic).
Bearing in mind that s 96 of the Act applies when the identity of a vehicle cannot be ascertained definitely or with reasonable certainty, it is accepted by the parties that it is for a plaintiff to satisfy the Court of this.
In Sinka v Mayne Nickless Ltd (‘Sinka’)[68] the question of proof of what is needed to establish that a vehicle cannot be identified was raised in the context of giving direction to a jury. The plaintiff was injured by a known vehicle said to be negligently driven by either a servant or agent of the first defendant, or alternatively by the driver of an unidentified vehicle. Sholl J said he would direct the jury that, if they were satisfied that the unidentified vehicle was negligent, then the plaintiff also had to prove that the identity of the vehicle cannot be established notwithstanding ‘reasonable and proper inquiry and investigation’, for the nominal defendant to be liable.[69]
[68][1964] VR 524 (‘Sinka’).
[69]Ibid 527.
The language of s 96(8) of the Act does not require the plaintiff herself undertake the investigation or inquiry to establish the identity of the vehicle. Others may do so, including the police, an insurer on risk in relation to the accident, or others as appropriate in the circumstances. Any investigation or inquiry is not limited to the date of the accident as the Act provides that the vehicle remain unidentified at least until the commencement of proceedings under s 96(1), being the claim for damages.
What amounts to a reasonable and proper inquiry is a question of fact in all the circumstances, bearing in mind that a ‘direct negative’[70] is to be established.
[70]Ibid.
Some cautious guidance about the proper construction can be sought from NSW cases, although the relevant provision in that jurisdiction requires ‘due inquiry and search’, a standard and phrase not found in the Victorian provision. In Blandford v Fox (‘Blandford’),[71] where the plaintiff was injured when crossing the road and the crutch he was using was struck by a passing car causing him to fall and break his leg, the offending vehicle stopped and the four occupants rendered assistance. The appeal concerned whether ‘due inquiry and search’ had occurred. Jordan CJ said:
I think that due inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit. It must be such as a reasonable man who had recourse only against the actual offender would make if he were desirous of identifying the offender in order to commence proceedings against him. The inquiries must if possible be set on foot before the scent is cold, and they must be made by all such means as are reasonably practicable in all quarters in which there is a reasonable prospect of obtaining useful information.[72]
[71](1944) 45 SR (NSW) 241 (‘Blandford’).
[72]Ibid 245.
On the facts in Blandford, the evidence demonstrated a complete absence of any reasonable attempt to make inquiry and search at the time of the accident. In Sinka, Sholl J rejected a submission that, in the absence of formal evidence called to testify to the negative, the matter could not be left to the jury. It had been submitted on behalf of the incorporate nominal defendant that there ought at least be evidence that the police had been inquired of. Sholl J said:
There is nothing here to show that the police had any special means of investigating the matter. If the plaintiff desires it, I will give leave to call the solicitor formally to say that he has no more knowledge of the identity of this vehicle than the evidence at present discloses, but, apart from that, I think it is a matter for counsel to address the jury on the sufficiency of the inquiries.[73]
[73]Sinka (n 68) 527–8.
Sholl J’s comments find support in the later decision of Harrison v Nominal Defendant (‘Harrison’)[74] where Barwick CJ said:
The stipulation that the identity of the vehicle is incapable of being established is made for the protection of the Nominal Defendant. It imposes no obligation, as such, upon the plaintiff; though the plaintiff to succeed must establish that the identity is incapable of being established as in the terms of the section.
The word ‘after’ in the subsection does not, in my opinion, require that some inquiry and search must necessarily in fact always precede some other event or the drawing of a conclusion. If, in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due search and inquiry the stipulation, in my opinion, may be held to be established, although no search or inquiry destined to be futile has been made. The section does not, in my opinion, require that in every case, irrespective of its circumstances, some inquiry and search should have been made. Whether or not the identity of the vehicle might have been established after search and inquiry appropriate to the circumstances of the case had been made is a question of fact. That, in my opinion, is the relevant issue in a case brought under s 30(2)(a) of the [Motor Vehicles (Third Party Insurance) Act 1942 (NSW)]. It is not whether some search and inquiry has been made.[75]
[74](1975) 7 ALR 680.
[75]Ibid at 682 (Barwick CJ) (emphasis in original).
These words were relied on in Nominal Defendant v Meakes[76] where Sackville JA after reviewing the various factual circumstances in earlier cases, concluded that inquiries or investigations do not encompass formulaic inquiries or matters likely to be futile. His Honour said:
It is true that neither the plaintiff nor the plaintiff’s agents need themselves to conduct inquiries. Nor, as Harrison demonstrates, have the courts insisted on inquiries that are likely to prove futile or purely ritualistic. Indeed, it is possible, depending on the circumstances, for a plaintiff to satisfy s 34(1) [of the Motor Accidents Compensation Act 1999 (NSW)] without any inquiries ever having been undertaken by anybody.[77]
[76][2012] NSWCA 66 [54] Sackville JA (with whom McColl and Basten JJA agreed).
[77]Ibid 26–7 [54].
The question is whether steps by way of investigation or inquiry might reasonably lead to useful information. It is not necessary for a plaintiff to demonstrate that all possible steps, such as newspaper advertisements or canvassing of nearby residences, have been undertaken if such steps were unlikely to result in observations or information likely to lead to identification.[78] Absent some prospect of useful information, steps would not be considered reasonable.

D Submissions

[78]Slinn v Nominal Defendant (1964) 112 CLR 334 at 338–9 where Barwick CJ discusses the definition of ‘due inquiry and search’.

D.1 Facts

The defendant concedes, based upon the emergency services call, that there was a vehicle passing at the time of the plaintiff’s injury and therefore that she was injured in a transport accident. The question of whether or not the vehicle struck the plaintiff is primarily relevant to the reliability of the plaintiff’s recollection and so the question of negligence.
The plaintiff submits that both she and Troy gave clear evidence as to the circumstances of the accident that I should accept. The plaintiff submits the Court should also accept their evidence that, in the context of an acrimonious breakdown in their marriage around the time of the accident, the plaintiff and Troy did not discuss the accident circumstances. The evidence of both is that a vehicle either brushed or struck the plaintiff.
The plaintiff’s counsel also submits that the histories recorded in the hospital records are unreliable and their accuracy is disputed by the plaintiff. If one accepts, as the defendant has, that a vehicle was present and passing the plaintiff at the time she fell from her bike, does the absence of this piece of information in the histories add to or change this fact? The plaintiff submits no. The defendant notes in particular that neither the ambulance notes nor the hospital discharge summaries mention any vehicle being relevant. Nor is there any contemporaneous report, including the emergency services call, of a vehicle striking the plaintiff. The defendant submits that the evidence goes no further than the plaintiff losing control of her bike at a time when a vehicle was passing in the vicinity. Also, at least three histories record the plaintiff’s foot being caught in a pedal. The defendant submits that when considering all of the contemporaneous documents, none provide evidence of negligence by the driver of the relevant vehicle.
As to negligence, the plaintiff submits that the relevant vehicle was travelling too close to her and that it caused her to fall. This occurred at the point where the plaintiff had reached the easterly side of the intersection with Long Lake Road where the gravel shoulder resumed and was, as Carrodus agreed, a ‘pinch point’. The plaintiff submits that whether or not the vehicle struck the plaintiff, its trajectory and closeness to the plaintiff caused her injury.
The defendant submits that the Court should carefully examine the contemporaneous material and be cautious to accept inconsistent evidence given many years later regarding the involvement of the relevant vehicle.
With respect to identifying the vehicle, the plaintiff submits that the Court should conclude that the unidentified vehicle, which slowed but did not stop and drove from the scene of the accident, did not return. She submits that the Court should conclude that the good Samaritan vehicle that stopped and assisted was a different vehicle to that passing at the time of the accident.
The defendant submits that in light of Troy’s contemporaneous history to the police that the vehicle returned and his later statement to Carrodus that he was unable to say whether the good Samaritan vehicle was the same vehicle as passed earlier, the Court should reject his recent viva voce evidence that it was a different vehicle.

D.2 Compliance with s 96 of the Act

The defendant submits that the obligation to identify the vehicle is objective, namely that reasonable search and inquiry has either taken place or it has not. Speculation as to the results of such searches and inquiries are not relevant.
The defendant submits, if it is accepted that the vehicle returned on the day of the accident to render assistance, then it was capable of being identified on that date. Further, it submits that the Court should not be satisfied that the plaintiff made any investigation or inquiry subsequent to the date of the accident, and so cannot satisfy the Court that the relevant vehicle falls within the definition of an ‘unidentified vehicle’ under s 96(8) of the Act. Regardless of whether one or two vehicles are involved, the defendant submits that the plaintiff had no state of knowledge as to whether the vehicle could be identified and no evidence of inquiries to inform herself whether the vehicle could be identified until her solicitor made inquiries.
If the vehicle is an unidentified vehicle within the meaning of s 96(8) of the Act, the defendant also submits that the letter of 21 February 2021 giving notice under s 96(2)(a) did not comply with the requirements of that sub-section. In particular, the defendant submits the letter did not contain a short statement of the circumstances of the accident as required by s 96(2)(a)(iv). Rather, the statement described in the letter suggests a different set of circumstances to that in the claim form and that given to the Court. In Gillam v Incorporated Nominal Defendant,[79] it was emphasised that the purpose of the notice requirement was to provide the nominal defendant with details of the circumstances of the claim.[80] The defendant submits that given the difference between the McPherson letter and the viva voce evidence, the letter does not comply with s 96(2)(a)(iv).
[79][1958] VR 280.
[80]Ibid at 284.
The defendant submits that s 96(2)(a) is directed at making a claim for common law damages and that the standard claim form for no fault benefits under the Act does not constitute notice under s 96(2)(a). The defendant submits that Lakic v Transport Accident Commission (‘Lakic’),[81] insofar as it provides otherwise should not be followed.
[81][2014] VSC 291.
TAC submits that given the plaintiff’s non-compliance with the notice requirement in s 96(2)(a) of the Act, either by not giving notice within a reasonable time after she knew the vehicle was an unidentified vehicle or by not complying with s 96(2)(a)(iv), the plaintiff must demonstrate under s 96(2)(b) that TAC has not been materially prejudiced by the provision of an insufficient or incorrect notice. TAC relies on prejudice arising from the delay of some 18 months causing the loss of valuable time in attempting to locate the vehicle or driver (between February 2021 and August 2022 when it sent an investigator) TAC submits this delay was caused by the misleading nature of the s 96 notice, which stated that the unidentified vehicle returned to the scene and provided assistance. In reliance on this information, TAC took the view that the vehicle was not an unidentified vehicle as it was capable of identification.

Therefore, the defendant submits that in the event that the Court is satisfied that there was negligence on the part of the driver of the unidentified vehicle and that negligence was a cause of the plaintiff’s injury, loss and damage, the plaintiff is unable to recover damages from TAC due to non-compliance with the requirements of s 96(2) of the Act.

E Findings

On the strength of the emergency services call, I find that a car was present at the time the plaintiff was injured. TAC accepts this is so. The car came from behind the cyclists, travelling in the same direction as them. There was no suggestion that any other vehicles were travelling in the vicinity at the time.
In her viva voce evidence, the plaintiff said the vehicle ‘brushed past her hip region’.[82] When asked directly ‘did it hit you’ she answered that ‘I believe it did touch me’. When cross-examined about the content of the emergency services call and the answer given by Laurdah that the plaintiff was not hit by the car, the plaintiff disagreed and again said the vehicle ’brushed against my leg’. Her sworn affidavit said:
…a vehicle passed very close to my bike, causing me to wobble, become unsteady, and then fall off…[83]
[82]T 5.5.
[83]CB 41 [7], which forms part of tendered exhibit F.
The plaintiff’s voice cannot be heard on the emergency services call and Laurdah cannot recall any response from her mother.
Given the plaintiff’s equivocation about being hit in her viva voce evidence, and her own evidence that, at its highest there was a brush against her leg, I cannot be satisfied that she was struck by the car.
The absence of mention for the reason the plaintiff lost control of her bicycle and needed to put her foot out to stop a fall, is of less importance once it is accepted that a car was present and passing close by the plaintiff. I am fortified by the fact that the emergency services call made reference to a car, even though Laurdah could not then, and could not at the time of hearing, explain what precisely had occurred. I am also fortified by the fact that Troy’s contemporaneous evidence clearly recalled a vehicle and demonstrated his belief that it was involved in the accident as he chased it to attempt to stop the driver. I am satisfied that the plaintiff’s fall was caused by the passing vehicle.
I am also satisfied that on balance, the driver of the vehicle was negligent.
The police report, made on information provided by Troy, records the vehicle travelling close to the edge of the road and passed by his former wife at close proximity. This is consistently reported in the police report and the statement recorded by Carrodus which noted:
The vehicle was close to the left side of the road and to the best of my recollection, would have been close to my wife. Other than saying the vehicle was close I am unable to estimate the distance the vehicle was from my wife.
At this time, I thought this motor vehicle may have hit my wife, but I am not sure about that…[84]
[84]CB 160, which forms part of tendered exhibit B.
It is also consistent with the information he provided to McPherson who recorded Troy was unsure whether the plaintiff was hit or ‘the car came very close to the bicycle’.[85]
[85]CB 284, which forms part of tendered exhibit 3.
In the unsigned statement prepared by Carrodus, Troy said his former wife told him the vehicle had collided with her. In light of the plaintiff’s own evidence, I do not accept the accuracy of this information provided by Troy.
However, I am satisfied that the vehicle passed very close, sufficiently so to be the reason the plaintiff became unsteady and fell. I am satisfied that the plaintiff did not deliberately move to the gravel to avoid being hit because I accept her evidence that she was a moderately experienced cyclist using a road bike that was not designed to go off road. In my view, the location of the accident, at the easterly end of the intersection with Long Lake Road, meant that the plaintiff had very little room to keep a distance from a passing vehicle without moving off the bitumen.
The plaintiff was required to ride in the carriageway to remain on the bitumen. There is no evidence of oncoming traffic that would prevent the driver from keeping an adequate distance while passing the cyclist, especially given their disparate speeds. Although there is no evidence of the road speed on that stretch of road, I note it is an open, country road. The plaintiff was cycling at a speed just faster than walking pace and was cycling with children. There is no evidence that the car slowed or gave the plaintiff a sufficiently wide berth to pass safely. Based upon the finding that the vehicle passed very close to the plaintiff, sufficiently so as to cause her to become unstable, I am satisfied that the driver was in breach of their duty to take reasonable care for the plaintiff as another road user.
Having found that the vehicle passed too close to the plaintiff’s bicycle where there was sufficient room on the road to maintain a safe distance and therefore that the driver failed to take reasonable care to avoid the risk of injury to the plaintiff, the remaining question is whether the plaintiff has complied with s 96 of the Act such that she can recover damages against TAC.

E.1 Identification of the vehicle under s 96(8) of the Act

I accept Troy’s evidence of the immediate aftermath of the accident, namely that he chased the vehicle in anger. I accept that the vehicle initially slowed but did not stop, and then sped up and drove off without Troy being able to speak to the driver or obtain the registration. Troy’s evidence was that he wasn’t looking, nor thinking of getting the registration at the time.[86] He said he was more worried about trying to catch the vehicle.[87]
[86]T 36.26.
[87]T 37.8.
Whether the vehicle could be identified later that day is contentious. It depends largely on the finding about the car that stopped and rendered assistance afterwards. Although the question is not without some difficulty, I am satisfied that the vehicle that did later stop to render assistance was not the vehicle that had driven past the cyclists at the time of the plaintiff’s fall.
My reasons for this conclusion are first, that I accept Troy’s evidence was that he thought the vehicle he chased was dark in colour. In his evidence he said that as he ‘didn’t know 100 per cent’ the colour but always thought it was a darker car. He was at some pains to convey that his recollection was not completely accurate and in those circumstances I accept his evidence of what he’d always thought to be the fact, was a reliable recollection. It follows that the police report which reported a white station wagon as the vehicle involved is most likely erroneous in this detail. Carrodus identified the conflict between Troy’s recollection of the vehicle and the description recorded in the police report.
Also, the police report records that the vehicle in question stopped to render assistance. There is no direct evidence to suggest this is what occurred. There is no specific description of the later presence or return of a vehicle whose occupants provided assistance. I accept Troy’s evidence that the vehicle that stopped after the accident was a different vehicle.
Further, the TAC claim summary is completed on information provided by Troy. How the form is compiled in unclear, as on its face it says it was lodged on 23 January 2017, although it provides hospital discharge information after that date. There is an obvious factual error in recording that police attended the scene. That suggests that other details as to circumstances might also contain inaccuracies. The TAC summary only refers to one undescribed vehicle, the driver of which was said to be at fault. There is no recording of events after the accident at all. The fact of assistance given by passers-by taking the plaintiff’s two younger children to their nearby grandmother’s house is not mentioned.
The suggestion that the vehicle alleged to have been at fault returned to the scene has its origin in the incorrect police report which recorded that the vehicle stopped when the accident occurred. It appears that both McPherson and TAC have relied on this police report subsequently.
I am not satisfied that, on the balance of probabilities, the good Samaritan vehicle was the same vehicle that caused the accident. Accordingly, there was no opportunity to identify the vehicle at fault from the events occurring in the aftermath.
It follows that the vehicle could not be identified on the day of the accident.
I accept that the requirement to make reasonable and proper inquiries to identify the vehicle alleged to be at fault extends beyond the day of the accident. On these facts the following steps were taken subsequently:
(a)Troy reported the accident to the police in Mildura on 23 January 2017, after having been advised by staff at Mildura Base Hospital to do so.[88] The police report made clear the identity of the vehicle was not known to him.
(b)On or around 23 January 2017 Troy provided information to TAC for completion of a claim form identifying that a vehicle was involved, that the vehicle had not been identified and his belief that the driver of the unidentified vehicle was at fault.[89]
(c)The plaintiff reported the circumstances to her solicitor when she first consulted Arnold Dallas McPherson on 27 May 2019. After obtaining relevant police and medical information and taking further instructions from the plaintiff, McPherson wrote a letter to TAC on 12 February 2021 purported to provide notice under s 96(2) of the Act.
[88]T 41.13.
[89]CB 181–2, which forms part of tendered exhibit C.
The need for inquiry and investigation is not imposed specifically on the plaintiff, nor would it have been reasonable for her to conduct such inquiries in the weeks and months immediately following the accident.
While I accept that later it may well be incumbent to make inquiries of others at the scene, as to whether identifying characteristics of the vehicle or its driver were known, in the circumstances of an acrimonious separation as occurred in the aftermath of the accident, it is understandable why such inquiries were not undertaken. I accept that the matter was not discussed by the plaintiff and Troy.
On the information held by Troy, the only adult witness to the vehicle, I am not persuaded that further inquiry or investigation would be reasonable. There was simply not enough information to direct or focus any further steps.
Reasonable inquiries are those that have some realistic prospect of providing information that may lead to identification of the relevant vehicle. The fact that the driver did not stop, the incomplete and perhaps inaccurate description of the vehicle obtained by the police from Troy and the absence of other witnesses to the accident make it difficult to identify any further steps that might be considered reasonable. A public appeal such as by a newspaper advertisement was suggested by the defendant at hearing as a potential avenue for inquiry but the absence of any concrete information together with the passage of time since the accident, make it unlikely that any such inquiry would produce useful information. Whilst it is true, as TAC submits, that investigation or inquiry either has been conducted or it hasn’t, whether any further steps ought be taken and the content of those steps is informed and qualified by the judgment of what steps are reasonable in all of the circumstances. Consistent with the view expressed in Harrison, the provision may be satisfied even when no inquiry is made. In my view, in the present circumstances so little information was available to the plaintiff and Troy that, beyond the steps taken by Troy, there were no further avenues for reasonable inquiry or investigation.
The damages proceeding was commenced on 14 April 2023. In August 2022, TAC engaged an investigator, Carrodus. His investigations included a canvas of residences where the incident occurred, which identified only two houses given the remote rural farming area of the accident site. No useful information was obtained. Despite TAC’s investigations at this time, the vehicle remained unidentified.
I am therefore satisfied that the vehicle was an unidentified vehicle at the time of commencement of the proceeding and at trial.

E.2 Compliance with notice requirements in s 96(2) of the Act

It remains to decide whether the plaintiff has complied with s 96(2) of the Act. Sub-section 96(2)(a) requires her first to provide a notice in writing of her ‘intention to make the claim’ against TAC under s 96(1). If notice is not given in accordance with the sub-section, then the person intending to make the claim must satisfy the Court that TAC has not been materially prejudiced in its defence by any failure to give notice at the proper time, or by any omission, insufficiency or defect in the notice itself in accordance with s 96(2)(b).
The letter of McPherson dated 12 February 2021 refers to the obligation to provide particulars in accordance with s 96(2) of the Act. The letter states:
We would be grateful for your confirmation that you consider this letter to be in compliance with the requirements of Section 96(2).[90]
It seeks details of any further information required if not compliant.
[90]CB 179.
While the McPherson letter does not set out all four matters identified by ss 96(1)(a) it refers to the fact that the name and address of the person injured, the date and place of the accident, the general nature of the injuries and a short statement of the circumstances of the accident are all outlined in the TAC claim form dated 23 January 2017. The letter nevertheless does again set out the circumstances. It states:
Our client was riding her bicycle with her three children and now estranged husband. A car approached her from behind, and made contact with her right leg at around the level of the thigh, causing imbalance on her part, and a fall from the bicycle, during which she placed her right leg on the ground, breaking it.[91]
[91]Ibid.
The letter also sets out subsequent events including a statement that the ‘allegedly negligent driver delivered some of her [the plaintiff’s] children to her parents’ home immediately after her accident’ and that ‘our client’s estranged husband stopped the driver and spoke to them’. I accept McPherson’s evidence that this most likely came from the police report that was in his possession because the plaintiff clearly had little if any appreciation of the events occurring immediately after the accident.
TAC responded on 24 February 2024 acknowledging the ‘Section 96 notice’. The letter took issue with whether the vehicle alleged to be at fault was an unidentified vehicle and identified inconsistencies between the recent letter and the claim form. Copies of medical records were requested ‘to assist in alleviating our [TAC’s] prejudice due to the delay in the Section 96 notice’. The matters raised in the letter were not stated to be omissions, insufficiencies or defects in the notice but were requests for additional information.
I accept that, if the vehicle involved had returned to the scene to provide assistance, then either Troy or Glenda had the opportunity to obtain further information and had as at January 2017, a recent recollection from which to describe the car and occupants. Had I concluded on the balance of probabilities that the car involved did return later to render assistance, the analysis as to whether the relevant vehicle cannot be identified might have been different. On the basis that the relevant vehicle did return, TAC denied that the vehicle met the definition of an unidentified vehicle and addressed a concern as to whether or not a vehicle was involved at all on the information available to it at that time.
TAC’s argument alleging non-compliance withs s 96(2)(a) of the Act is that the plaintiff’s notice, when given, did not satisfy the requirement in s 96(2)(a)(iv) to describe the circumstances of the accident. I have set out the description of the accident circumstances above at [61]. The letter sets out additional information going to the aftermath of the accident. These details were clearly relevant to the identification of the vehicle in question but less relevant to the circumstances going to liability for the accident. It may be arguable, although it is not necessary to decide, whether s 96(a)(iv) is so broad as to require a description going to efforts to identify the vehicle or requires only a description of how the accident occurred.
Finally, if I am wrong and the McPherson letter does not comply with the statutory notice requirements in s 96(2)(a) of the Act, the plaintiff must demonstrate under s 96(2)(b) that TAC has suffered no prejudice by reason of any omission, insufficiency or defect in the notice.
Giving notice in writing is to be done within a reasonable time after knowing that the vehicle was an unidentified vehicle. On one view, the TAC claim form dated 23 January 2017 provides the information required by ss 96(2)(a) of the Act, even though at that time the plaintiff did not know herself whether or not the vehicle had been identified. In those circumstances, the claim form is not notice by the plaintiff that the vehicle involved was, to her knowledge, an unidentified vehicle.
In Lakic, Rush J accepted TAC’s concession in that case that the information required for notice under s 96(2)(a) was contained in the claim form, such that it was unlikely TAC was materially prejudiced in dealing with the matter. It is not clear from the reasons in Lakic whether any notice specifically was given under s 96(2)(a) separate to the claim form. It may well be that the plaintiff, who was self-represented, had not done so. In any event, the observations of Rush J do not conclude that the claim form is a notice in accordance with s 96(2)(a), rather it seems to me that his Honour was addressing the question of prejudice raised by s 96(2)(b) on the basis that notice had not been given as required by sub-section (a). The TAC concession went only to the lack of prejudice caused by any failure of Ms Lakic.
Accepting TAC’s submission that this claim form itself is not notice under s 96(2)(a) of the Act of an intention to seek damages, the plaintiff has provided a notice dated 12 February 2021 said to be in accordance with s 96. The question of whether or not that notice is compliant is unaffected by the decision of Lakic.
TAC relies on two failures of the s 96 notice – first, a failure to comply with s 96(2)(a)(iv) by failing to provide the circumstances of the accident and second, a delay in providing the notice.
The information provided as to the circumstances is set out above. The complaint lies in the information provided as to the immediate aftermath and the description of the vehicle as returning and rendering assistance. That information was not provided in the claim form. It appears it first became known to TAC in February 2021. Given my finding that this information was wrong, while it may have led TAC down a wrong track, it is difficult to see that any prejudice arises in the defence of the claim by this error. I accept the plaintiff’s submission that only if the information had been correct, and the unidentified vehicle had returned, might any prejudice have arisen.
The second failure is the timing. I accept that the plaintiff herself did not turn her mind to the question of identifying the vehicle. Her only real recourse was to speak with her ex-husband, which was difficult given their domestic circumstances. She advised her solicitor who took some steps to ascertain the vehicle’s identity, including obtaining the police report and speaking with Troy.
It is true that the provision of the notice, stating amongst other matters that Troy had chased the offending vehicle, meant that TAC was not made aware of a potential avenue for investigation until February 2021. The absence of any useful information when inquiries were made in August 2022 tells against any prejudice being suffered as a result of that 18 month delay. Any prejudice is premised on an acceptance of the accuracy of the information in the notice. If the vehicle that rendered assistance was a different vehicle, whose occupants arrived after the accident and did not witness it, then the omission of this information at an earlier time could have no bearing on identification of the vehicle nor on liability of the driver. I do not accept that the passage of time before providing notice in February 2021 has caused a material prejudice in TAC’s defence.

The plaintiff is not precluded from recovering damages from TAC in respect of the transport accident occurring on 21 January 2017. I will hear the parties on the appropriate form of orders.

Annexure A

[2024] VSC 641

22 October 2024