McKinley and Hildred v Motor Accidents Insurance Board
[1999] TASSC 84
•12 August 1999
[1999] TASSC 84
CITATION: McKinley & Hildred v Motor Accidents Insurance Board
[1999] TASSC 84
PARTIES: McKINLEY, Andrew Sean
HILDRED, Jennifer Anne
v
MOTOR ACCIDENTS INSURANCE BOARD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M27/1998
DELIVERED ON: 12 August 1999
DELIVERED AT: Hobart
HEARING DATE: 12 August 1999
JUDGMENT OF: Evans J
CATCHWORDS:
Insurance - Third party liability insurance - 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 - Application to extend time not made within nine months - Considerations applicable.
Motor Accidents (Liabilities and compensation ) Act 1973 (Tas), s16(2), (2A).
Aust Dig Insurance [61]
REPRESENTATION:
Counsel:
Applicants: B R McTaggart
Respondent: C H Hobbs
Solicitors:
Applicants: Jennings Elliott
Respondent: C H Hobbs
Judgment Number: [1999] TASSC 84
Number of paragraphs: 20
Serial No 84/1999
File No M27/1998
ANDREW SEAN McKINLEY and JENNIFER ANNE HILDRED
v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT EVANS J
12 August 1999
The applicants seek an extension of the time within which they may provide notice to the Motor Accidents Insurance Board of their intention to make a claim pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), s16.
In April 1997, the applicants, who then resided in Queanbeyan, New South Wales, were touring in Tasmania. At about 10am on 2 April 1997 they were travelling in a northerly direction on the Arthur Highway on the motor bike of the first named applicant, Mr McKinley. Mr McKinley was driving and the second named applicant, Ms Hildred, was the pillion passenger. About 500 metres north of the Fortescue Bay turn off from the Arthur Highway, Mr McKinley endeavoured to overtake a vehicle which he had been following for a considerable time. As his bike was passing the vehicle, the vehicle swerved to its right, forcing Mr McKinley to do likewise. As a result, his bike got into gravel on the right hand side of the highway, he lost control of the bike and it flipped over, causing Mr McKinley and Ms Hildred to suffer personal injuries.
The vehicle involved in the accident did not stop. As the bike had travelled behind the vehicle for a considerable time prior to the accident, the applicants had had ample opportunity to observe it. They describe it as a silver Toyota sedan manufactured in about 1996. It had a Hertz logo on the back windscreen. For amusement during the tour, Ms Hildred had been trying to remember the registration numbers of vehicles she saw. Following the accident, she was able to recall that the Toyota's registration number was DN-8453. This information was provided to Constable Hyland who completed a traffic accident report in relation to the accident.
The applicants were taken by ambulance to the St Helen's Hospital, Hobart. Mr McKinley's injuries included a comminuted fracture of the base of the second metacarpal of his left hand. He underwent an operation in which the metacarpal was fixed in place by a four hole plate and screws. He suffered other injuries of the nature of lacerations and bruising. He has undergone further surgery in relation to the fractured metacarpal. Ms Hildred suffered soft tissue injuries. She had a suspected ruptured spleen, cartledge damage in the lower rib area, neck and shoulder pain and a sprained ankle. She was admitted to hospital. She has since needed occasional physiotherapy treatment and has had treatment for stress arising from the accident.
The applicants were released from hospital about five days after the accident and returned to New South Wales.
In late April or early May 1997, the applicants instructed a Canberra based solicitor, Mr Gabbedy, then employed with Gary Robb and Associates, to act for them in relation to the accident.
On 8 May 1997, Mr Gabbedy wrote to Hobart solicitors, Jennings Elliott, to engage them to act as the applicants' Tasmanian solicitors. In that letter, Mr Gabbedy detailed the applicants' instructions and asked Jennings Elliott to advise if there were any impediments, of which they were aware, to the applicants issuing proceedings in Tasmania. Jennings Elliott advised that there were not.
On 22 May 1997, Mr Gabbedy wrote to Tasmania Police requesting details of the accident and in response he was provided with a copy of the traffic accident report which had been prepared in relation to the accident by Constable Hyland on the day of the accident. It contained the information which had been provided to Constable Hyland in relation to the identity of the vehicle involved in the accident, including the registration number DN-8453.
On 30 June 1997, Mr Gabbedy changed the firm of solicitors with whom he was employed. The applicants requested Mr Gabbedy to continue to act for them. This change in Mr Gabbedy's employment interrupted his attention to the applicants' matter and caused some delay.
On 25 September 1997, Jennings Elliott obtained a Registration Search Certificate in relation to registration number DN-8453. The certificate showed that the vehicle carrying that registration number was a silver Toyota manufactured in 1996 owned by Auto Rent Hertz, Launceston.
Jennings Elliott provided Mr Gabbedy with a copy of the Registration Search Certificate under cover of a letter dated 29 September 1997 in which they advised:
"Pursuant to Section 16 of the Motor Accidents (Liabilities & Compensation) Act 1973 where the identity of the motor vehicle causing the accident cannot be established, proceedings may be taken against the Board. However in order to proceed under this Section notice of intention to make such a claim together with a short statement of the grounds thereof must be given to the Board within a period of three months following the occurrence of the accident or within such further time as the Court may on application made not later than nine months after the occurrence of the accident allow.
It seems however that the identity of the motor vehicle can be established, it is merely the identity of the driver that cannot.
If there are concerns that you cannot identify the driver of the motor vehicle, as a matter of precaution, you should provide the necessary notice to the Motor Accidents Insurance Board. However, no doubt, Auto Rent Hertz will have records as to who rented the vehicle at the time of the accident."
Mr Gabbedy wrote to Auto Rent Hertz and their insurer, Lumley General Insurance, in an endeavour to establish the identity of the driver of the vehicle. As that information was not forthcoming and it was apparent that the applicants might not be able to establish the identity of the vehicle, Jennings Elliott were instructed to give the Motor Accidents Insurance Board notice of the applicants' claim pursuant to the Act, s16. This was done on 5 December 1997.
At the time of providing the Motor Accidents Insurance Board with the s16 notice, Jennings Elliott noted that it was out of time and enquired whether the Motor Accidents Insurance Board required the applicants to apply to the Court for a time extension. The solicitors for the Motor Accidents Insurance Board replied advising that consideration would be given to agreeing to a time extension after the applicants had provided certain information which they requested. The applicants responded to that request via Jennings Elliott and, after further correspondence, the Motor Accidents Insurance Board's solicitors, by letter dated 3 February 1998, advised that it would be necessary for the applicants to apply to the Court for a time extension. The requisite application was filed on 4 February 1998 and is the application before me.
The matters to be considered on an application such as this are well known and include the explanation for the delay, the merits of the potential claim and prejudice.
On the material before me, I am satisfied that the applicants have a strong prima facie claim for damages and personal injuries arising from the negligent driving of the driver of the potentially unidentified vehicle, although criticism can be levelled at Mr McKinley's driving. It was apparent to Mr McKinley that the driver of the vehicle was not aware of the presence of the motor bike and that the driver, who had been conversing with a passenger, was not giving his full attention to driving. Mr McKinley overtook the vehicle without sounding the horn of the bike and satisfying himself that the driver of the vehicle was aware of the bike's presence.
Both of the applicants suffered more than nominal injuries in the accident, although the degree and potential duration of their injuries is far from clear on the evidence before me.
So far as there has been a delay in the provision of notice to the Motor Accidents Insurance Board, that is primarily the result of the mistaken belief of the applicants and their legal advisers that the identity of the vehicle and its driver could be established. Bearing in mind Ms Hildred had recalled the registration number of the vehicle and that following a search it was established that the vehicle carrying that registration number answered the description given to the vehicle by the applicants, it is not surprising that those involved believed that the vehicle had been identified and that the driver would also be identified. I do not burden the applicants with any delay on their solicitor's part in anticipating the need to give a s16 notice at an earlier date. Motor Accidents Insurance Board v Lee A67/1989 and Woolley v Jensen A20/1995.
No delay has resulted from any dilatoriness on the part of the applicants. They promptly instructed a solicitor to act on their behalf and have monitored his attention to their claims. Their solicitor's attention was not drawn to the possible need to provide the Motor Accidents Insurance Board with a s16 notice of the claim until 29 September 1997, by which time the three months' time limit had expired. The requisite notice was given within a reasonable time following this date after the applicants' solicitor had made enquiries which indicated that the identity of the vehicle and its driver was in issue.
I am not satisfied that the Motor Accidents Insurance Board has suffered any real prejudice as a consequence of the delay in the provision of the s16 notice. The sort of enquiries that it would have made had it received that notice have, in any event, been made by the applicants. Nothing has been brought to my attention to suggest that the Motor Accidents Insurance Board's position would have been improved had it received notice of the claim by 2 July 1997 rather than five months later.
For these reasons I am satisfied that it is just and reasonable to grant the applicants the extension of time which they seek.
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