Luke Howarth v Nominal Defendant Act
[2001] ACTSC 122
•17 December 2001
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:
Time for the plaintiff to notify the defendant of the plaintiff’s intention to make a claim be extended.
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.
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.
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.
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.
For the next two days the plaintiff was in intensive care. He was an in-patient until 2 June 1995.
The plaintiff concedes that following the accident he tested positive for alcohol. Analysis of his blood returned a result of 0.124 grams of alcohol per 100 millilitres of blood. The legal limit is .05. The plaintiff was charged with having driven a motor vehicle and thereafter being found to have in excess of the prescribed concentration. He was convicted, fined and his licence cancelled.
The plaintiff suffered serious injuries and consequent disabilities. He had a compound fracture of the left knee and femur, two compound fractures of the left forearm and left upper arm, a closed head injury with concussion (causing amnesia) and a left calf injury. Those injuries are confirmed by medical reports.
For a considerable time the plaintiff was gravely disabled and undergoing active rehabilitative treatment. The plaintiff asserts, not unreasonably, that he was preoccupied with treatment for the balance of 1995.
Further, he states, and this was not challenged, that he was unaware of the provisions, then contained in the Motor Traffic Act 1930 and now contained in the RT (G) Act, for action to be taken against the Nominal Defendant if personal injury is caused by the negligence of the driver of an unidentified motor vehicle. Nor was he aware of the requirement to give notice to the Nominal Defendant within 3 months from the accident.
From general conversation with friends and acquaintances, the plaintiff concluded that he had six years to make a claim but considered that he would have difficulty establishing that the accident was the fault of another person. He was also conscious that it would emerge that he had been, to some degree, intoxicated at the relevant time.
However, although he had no personal recollection of how he came to be injured, a police officer had, when interviewing him, suggested that there may have been one or two cars involved in the accident. He may have been “shunted” off the road by one of those vehicles, neither of which had stopped. That was a couple of months after the accident.
A Mr James Knight of Boorowa did provide details to police concerning observations he made at the time of the occurrence of the accident. He now resides, it seems, at Young, New South Wales. He has provided a statement to the plaintiff’s solicitor.
He was, at the time of the accident, travelling towards the plaintiff. He saw that the plaintiff’s motor cycle was following one motor vehicle and being followed in turn by another. He saw the motor vehicle in front of the motor cycle turn right into Chuculba Crescent.
Mr Knight momentarily looked down at his dashboard. When he looked up he saw that the motor cycle was “spinning across the road in front of me to the left hand side”. It hit trees on the side of the road. The person riding the cycle was lying prone near the gutter at the intersection. He had to swerve to avoid him. Mr Knight also observed the rider’s helmet on the “other side of the road” as well as his gloves.
Although he did not see it happen, Mr Knight states that it was his assumption “that the bike rider stopped or slowed down to enable the car in front to make the right hand turn and was then hit in the rear by the car behind”.
Another possible hypothesis of course, is that the rider had taken evasive action to avoid the vehicle ahead of him when it slowed to turn right but due to his intoxication misjudged the situation causing his motor cycle to throw him off and spin across the roadway.
However, the plaintiff calls in aid, to suggest a prima facie case of negligence, two reports. One emanates from Mr Colin Wingrove, a Traffic Engineer. Mr Wingrove states:
“It is my considered opinion, based on the information provided, that there is a very strong probability that [the plaintiff] was struck by the motor vehicle that was travelling immediately behind [the plaintiff’s] motor cycle. It is also my considered opinion that the collision with the unidentified vehicle travelling immediately behind [the plaintiff’s] motor cycle occurred to the left side of [the plaintiff’s] motor cycle [and the plaintiff] whilst [the plaintiff] reduced speed to allow the motor vehicle in front to turn right.”
The second is from Dr Michael Henderson, a medical practitioner described as a “Traffic injury consultant”. He has an impressive curriculum vitae. Dr Henderson’s opinion was:
“ Given the nature, severity and distribution of his limb injuries, the most likely course of events in my opinion is that his left leg was first struck by a motor vehicle. This sent the motor cycle out of control and spinning across to the other side of the road, during which time he sustained his other injuries. No other explanation fits the known circumstances as well as this scenario.”
Neither Mr Wingrove or Dr Henderson refer to the effect on their hypotheses of the plaintiff’s intoxication. Nor is it apparent that all other reasonable hypotheses inconsistent with negligence on the part of the driver of the following vehicle have been considered.
Nevertheless, Mr Stretton, counsel for the defendant, did not seek to either have those experts called for cross-examination nor to offer alternative expert opinions.
Prima facie therefore, I consider that I have to accept the submission put by Mr Livingstone, counsel for the plaintiff, that there is at least an arguable case supporting the hypothesis that the following driver was negligent and “shunted” into the plaintiff’s cycle. It is a curious fact that the following driver, despite the occurrence of an accident in front of him or her, did not stop nor offer his or her evidence to police. That may lend some slight further support to an inference of consciousness of guilt. Mr Knight, after all, though he did not stop immediately he saw the accident, did return to offer his observations to investigating police.
Mr Stretton submits that, even if the plaintiff’s case is not hopeless, the application should be refused because of prejudice arising from the delay in giving notice.
Mr Stretton did not offer a submission that the plaintiff would fail because of a failure to make appropriate inquiry and search in an endeavour to find the unidentified apparently negligently driven vehicle.
I referred to that requirement in Auguszczak v Nominal Defendant(ACT)(1995) 22 MVR 416.
“Appropriate inquiry and search” is an objective concept. Its requirements will depend on the objective circumstances. It does not require that meaningless rituals be engaged in. It may be that the circumstances are such that it is obvious that no reasonable enquiry or search is likely to yield any relevant information. In the present case, police were promptly informed of the occurrence of the accident and, more importantly, of the hypothesis that a following vehicle had struck the plaintiff.
The plaintiff’s account of his conversation with the investigating officer indicates that Mr Knight’s observations were accepted as a line of inquiry to be followed. Indeed, the latter’s vehicle was inspected so as to eliminate it as having struck the plaintiff or his cycle.
It seems to me, therefore, that, given the state of the authorities as I considered them to be in Auguszczak (supra), it could not be successfully contended that “appropriate inquiry and search” had not been made.
Delay and prejudice is another matter. In Auguszczak I took the view that the approach to the exercise of discretion to extend time under the then equivalent of s 181 RT (G) Act should be approached similarly to that adopted on an application to extend time under limitation legislation. The relevant difference must also be kept in mind. The purpose of the notice provision of s 181 is not primarily to protect a defendant against stale claims but rather to give the Nominal Defendant an opportunity to follow a trail to an alternative defendant before the trail becomes lost. It also enables early verification of the circumstances of the accident of which the Nominal Defendant will, typically, have no first hand knowledge nor access to it so as to confirm or deny a plaintiff’s version of events.
As I there expressed it, at 421:
“Ultimately, the question is whether, having regard to the reasons for and extent of the relevant delay, the nature and extent of the rights apparently barred to the plaintiff and any prejudice which is or may be presumed to have been suffered by the defendant, sufficient cause has been shown [by the applicant] for time to be extended.”
In the present case, it is not suggested that there are any alternative remedies available to the plaintiff.
Reasons for and extent of delay
The Nominal Defendant was not notified of the motor accident until 10 May 2001. The 3 months period for notice to have been given expired on 29 July 1995. By the time notice was given more than 6 years had expired since the occurrence of the accident. I accept that any prejudice suffered by the defendant includes prejudice suffered in relation to the entire period of delay, even though proceedings were, in fact, commenced within the limitation period. It is not only the loss of an opportunity to identify an alternative defendant which is relevant but also such prejudice as would go to proof of liability (eg. death of witnesses, loss of potential exhibits or other evidence) or damages (eg. loss of medical records).
The plaintiff explains the delay on the grounds of ignorance of both his right to sue the Nominal Defendant and of his duty to give notice if he intended to do so (or wished to leave open the opportunity to do so).
Further, as noted above, for a period of approximately 12 months, the plaintiff was preoccupied with treatment following his serious injuries.
The extent of the delay is extreme though the reasons for it until the plaintiff consulted Mr Vincent, solicitor, on 7 April 2000 were understandable.
It is true that there was further delay before notice was given. It would have done no harm for a contingent notice to have been given by Mr Vincent as soon as he was consulted and a claim seemed possible. It is not the same as commencing proceedings in the Court when a responsible solicitor should first be satisfied that reasonable grounds exist for taking proceedings before doing so. However, no additional disadvantage to the defendant seems to me to have been caused by this further delay.
It was reasonable, in the circumstances, for Mr Vincent to obtain, not only a statement from police and Mr Knight but also expert reports, before commencing proceedings.
Nature and extent of rights presumptively barred
The possible liability of the driver of the unidentified motor vehicle pointed to by Mr Wingrove and Dr Henderson is by no means a strong case for the plaintiff. Nevertheless, it is not "forlorn.” As against that, the injuries and disabilities are very serious. No doubt contributory negligence will be a real issue but, if the plaintiff’s cycle was struck from behind so as to dislodge him from it, the damages are likely to be substantial and the degree of contribution, at least arguably, relatively minor.
It would, therefore, be a substantial injustice to the plaintiff to deny him the opportunity to claim damages for his personal injury.
Prejudice to the defendant
The “prejudice” which a plaintiff must address was recently considered by me in Moon v Moon [2001] ACTSC 17 (13 March 2001) (upheld by the Federal Court, [2001] FCA 1712 (7 December 2001)) and in Richardson v Nominal Defendant(ACT) [2001] ACTSC 35 (27 April 2001). In those cases I considered Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 as interpreted by the Court of Appeal of New South Wales in both Holt v Wynter [2000] NSWCA 143 (26 June 2000); (1999-00) 49 NSWLR 128 and Seib v Morton [2000] NSWCA 139 (26 June 2000). That consideration seems to me to lead to the conclusion that the guiding principles should be, as follows:
1. The discretion to extend time is to be exercised for the purposes of the legislation conferring it; those purposes include forensic diligence, a corollary of which is the protection of defendants from the injustice of stale or contrived claims.
2. The ultimate question to be decided, in the light of the relevant legislative purpose, is whether it is fair and just to grant leave and whether there can be a fair trial.
3. The onus is on the applicant to show that it is fair and just to grant leave.
4. In considering whether the applicant has shown that it is fair and just to grant leave, it is material for the court to take into account the whole of the delay and the applicant’s explanation for it.
5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material and in a great many cases an almost conclusive consideration.
The latter consideration led Sheller JA at par 116 of Holt v Wynter (supra) to conclude:
“ . . .I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant.”
It is apparent that, in context, “prejudice” does not mean the successful prosecution of the subject claim. It means prejudice to the fair and just trial of such a claim. It means an unfair prejudice such as the loss of a fair opportunity successfully to contest such a claim. It is not every prejudice, in that sense, that renders a grant of leave inappropriate, but only such as would be adjudged to be “significant”. That is, clearly enough, a value judgment made in the factual context of the individual case. That is not to say that the absence of significant prejudice will lead to a grant of leave, though it clearly makes an applicant’s case easier to make out.
In the present case, apart from the total period of delay, which itself represents some unfair prejudice, the defendant points to the fact that the motor cycle itself was disposed of shortly after the accident. That was not an unreasonable decision for the plaintiff to have made. It was a write-off. It was photographed before disposal but the defendant points out that it was possible that, had the following vehicle struck the motor cycle itself some paint deposit may have been left. It could have then been analysed and some information gleaned as to the type of vehicle involved.
That is a fair point. However, it does require some further analysis to evaluate its significance. To conclude that paint residue would be significant first requires a conclusion that it was deposited in the collision. Had such residue been found that would be a fair conclusion. Indeed, early discovery of it could have assisted to determine if it was fresh. However, whilst the finding of such residue might help to corroborate the hypothesis of Mr Wingrove and Dr Henderson, it is not apparent that it would be of any practical assistance in identifying the offending vehicle. Indeed, it is highly unlikely that there would be any such deposit found. A “nudge” by a sedan on a motor cycle is inherently unlikely to cause significant damage to the motor vehicle so as to deposit paint. Even if it had done so, finding the vehicle to match it with, in the absence of the driver coming forward, would be well-nigh impossible.
Further, if, as Dr Henderson postulates, the impact was directly upon the plaintiff, there is no likelihood of paint residue being left upon the motor cycle.
In the latter case, the absence of examination of the wrecked motor cycle would have been of no value to the defendant.
As it stands, the strength of the plaintiff’s case rests upon the hypothesis advanced by Mr Wingrove and Dr Henderson, based on the observations of Mr Knight and not otherwise.
I cannot see how the failure of the plaintiff to preserve the motor cycle wreck, disposed of shortly after the accident, whilst the plaintiff personally remained disabled, significantly prejudices the defendant.
Further, given that the accident was promptly reported to police and that the only relevant known eye witness gave his account promptly, it does not appear to me that any identifiable prejudice has been caused by or resulted from the failure to give notice.
On balance, it seems to me that the plaintiff, having given a satisfactory explanation for the delay has otherwise made out a case for time to be extended. I order that time be extended accordingly.
I certify that the preceding * (*) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice
Associate:
Date: 17 December 2001
Counsel for the Plaintiff: Mr R Livingston
Solicitor for the Plaintiff: AB Vincent
Counsel for the Defendant: Mr G Stretton
Solicitor for the Defendant: Abbott Tout
Date of hearing: 12 October 2001
Date of judgment: 17 December 2001
0
4
1