Luke Howarth v Nominal Defendant Act

[2001] ACTSC 122

LUKE HOWARTH v NOMINAL DEFENDANT ACT [2001]
ACTSC 122 (17 December 2001)

CATCHWORDS

LIMITATION OF ACTIONS – motor vehicle accident – action against nominal defendant – application to extend time of notice of intention to make a claim pursuant to s 181(2) Road Transport (General) Act 1999 – “appropriate inquiry and search” of unidentified vehicle  – guiding principles for delay and prejudice to defendant – no identifiable prejudice – extension of time granted.

WORDS AND PHRASES – “appropriate inquiry and search” – “significant prejudice”.

Road Transport (General) Act 1999, s 181(2)

Auguszczak v Nominal Defendant (ACT) (1995) 22 MVR 416
Moon v Moon [2001] ACTSC 17 (13 March 2001)
Moon v Moon [2001] FCA 1712 (7 December 2001)
Richardson v Nominal Defendant (ACT) [2001] ACTSC 35 (27 April 2001)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Holt v Wynter [2000] NSWCA 143 (26 June 2000); (1999-00) 49 NSWLR 128
Seib v Morton [2000] NSWCA 139 (26 June 2000)

No. SC 253 of 2001

Judge:          Higgins
Supreme Court of the ACT
Date:           17 December 2001

IN THE SUPREME COURT OF THE     )
  )          No. SC 253 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LUKE HOWARTH

Plaintiff

AND: NOMINAL DEFENDANT ACT

Defendant

ORDER

Judge:  Higgins J
Date:  17 December 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. Time for the plaintiff to notify the defendant of the plaintiff’s intention to make a claim be extended.

1. This is an application, pursuant to s 181(2) of the Road Transport (General) Act 1999 (ACT) (RT (G) Act) seeking, on behalf of the plaintiff, an order that the time for giving written notice to the Nominal Defendant (ACT) of intention to make a personal injury claim be extended.

1. Absent an order granting that extension of time, such notice was required to have been given within 3 months from the date of the motor accident in question.  The consequence of failing to give such notice within the period of 3 months or such further time as may be allowed by the Nominal Defendant or, if not so allowed, the Court in which the action has been or is proposed to be brought, is that the action may not be taken.

1. The motor accident the subject of the plaintiff’s claim allegedly occurred on 29 April 1995.  Although the facts supporting this application are undisputed at this stage, it is possible that they might be disputed if a trial were held.

1. The plaintiff has deposed that he was, on that date, riding his Kawasaki motor cycle (ACT 43-718) on William Slim Drive in Giralang.  He recollects following a small white sedan.  He observed that vehicle slowing down and that its right hand indicator was activated.  He next recollects lying injured on the roadway being spoken to by a man.  He was conveyed to hospital.

1. For the next two days the plaintiff was in intensive care.  He was an in-patient until 2 June 1995.

1. The plaintiff concedes that following the accident he tested positive for alcohol.…