Menzie v Motor Accidents Insurance Board
[2014] TASSC 57
•24 October 2014
[2014] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: Menzie v Motor Accidents Insurance Board [2014] TASSC 57
PARTIES: MENZIE, Tammie Lea
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO: 354/2014
DELIVERED ON: 24 October 2014
DELIVERED AT: Hobart
HEARING DATE: 15 October 2014
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Insurance – Motor vehicles – Compulsory third party insurance and like schemes – Unidentified vehicle – Notices, claims and extensions of time – Extension of time – Principles to be applied.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 16.
Aust Dig Insurance [1095]
REPRESENTATION:
Counsel:
Applicant: A I Gaggin
Respondent: P L Jackson
Solicitors:
Applicant: Murdoch Clarke
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2014] TASSC 57
Number of paragraphs: 22
Serial No 57/2014
File No 354/2014
TAMMIE LEA MENZIE v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT HOLT AsJ
24 October 2014
The applicant wishes to commence an action against the Motor Accidents Insurance Board (the Board) for damages for personal injury suffered in a motor vehicle accident on 24 June 2013, which accident is claimed to have been the fault of the driver of an unidentified motor vehicle.
Subject to the provisions of the Motor Accidents (Liabilities and Compensation) Act 1973 (the Act), the Board is bound to indemnify the owner or user of a motor vehicle in respect of liability for personal injury incurred as a result of a motor vehicle accident in Tasmania. The liability to indemnify applies even if the identity of the owner or driver of the motor vehicle allegedly causing the injury cannot be found or has died. Section 16 of the Act is as follows:
"Special provisions as to unidentified vehicles, &c.
(1) Where it is alleged that some person has, as an owner or user of a motor vehicle, incurred a liability in respect of which he would be entitled to be indemnified by the Board under this Part but–
(a) the identity of the motor vehicle cannot be established; or
(b) that person has died or cannot, after reasonable inquiry and search, be found–
the like proceedings may be taken against the Board in respect of that liability, and the like judgment obtained against the Board, as could have been taken or had against that person.
(2) No action lies against the Board under this section unless notice of intention to make a claim, together with a short statement of the grounds thereof, is given to the Board within the period of 3 months following the occurrence of the motor accident as a consequence of which the liability in respect of which the action is brought is alleged to have arisen or within such further time as the court may, on application made not later than 9 months after the occurrence of the motor accident, allow.
(2A) Notwithstanding subsection (2), an application referred to in that subsection may be made after the expiration of the period of 9 months referred to in that subsection if the court is satisfied that the granting of the application is just and reasonable in the circumstances.
(3) In an action under this section, the inquiry and search for the person by whom the liability is alleged to have been incurred may be proved orally or by the affidavit of the person who made the inquiry and search."
The notice requirement contained in s 16 of the Act is an element of the cause of action against the Board. Hall v Nominal Defendant (1966) 117 CLR 423 at 442 per Windeyer J and Kevin Roy Johnson v Motor Accidents Insurance Board [1996] TASSC 139 at [11] per Zeeman J. Relevantly to the present case, other elements of the cause of action are those applicable to claims for damages for personal injury negligently caused and that the identity of the motor vehicle concerned cannot be established.
Here, the applicant did not issue her notice of intention to make a claim within the primary three month period. Her notice dated 11 March was presumably received by the Board on 13 March 2014, almost nine months after the accident. By the notice the applicant expressed an intention to make a claim against the driver of a vehicle which the applicant is only able to identify as a "white sedan".
By application filed 2 May 2014 the applicant has sought an order extending time for the issue of the notice to the Board to 13 March 2014. No point has been taken by the respondent as to the application being made out of time and I will proceed on the basis that if an extension of the notice period is appropriate the requirement for the application to be lodged within nine months should be dispensed with.
On the hearing of the application the parties adopted as the appropriate considerations those set out in Raspin v Motor Accidents Insurance Board [2013] TASSC 30 at [17]. Namely:
"As to whether the justice of the case rests with granting or withholding an extension of time, each case will depend upon its own facts. However, there are some matters which, in most cases, call for consideration. Firstly, the applicant should establish that the prospective claim is viable as it would not be just to expose a potential defendant to proceedings which are futile. See Williams v The Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508. Secondly, there should be an explanation for the failure to comply with the time limit and, thirdly, any prejudice which the potential defendant will or might suffer if time is extended is taken into account. As to the second and third features, in Sophron v The Nominal Defendant (1957) 96 CLR 469 Dixon CJ, McTiernan J, Fullagar J and Taylor J said at 475:
'There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice within three months must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure.'"
It is to be noted, however, that in order to succeed on an application for an extension of time under s 16 of the Act evidence as to whether the identity of the offending vehicle cannot be established, like other evidence going to a prima facie cause of action, although relevant to whether or not the discretion should be favourably exercised, may not necessarily be essential. In this regard in Motor Accidents Insurance Board v Bowles [2013] TASSC 5 Blow J, as he then was, said at [12]:
"In the light of these authorities, it is clear that a plaintiff relying on s16(1)(a) can succeed at trial only if he or she establishes, on the balance of probabilities, that the identity of the offending motor vehicle cannot be established, as distinct from proving that its identity has not been established. I think it must follow that, when evidence relevant to the possibility or impossibility of establishing an offending vehicle's identity is adduced upon an application for an extension of time under s16, the strength or weakness of that evidence can be a relevant consideration. There is authority that evidence as to such an issue, or even as to negligence on the part of an unidentified driver, is not essential to the success of such an application. In Pascoe v Nominal Defendant [1964] QR 373, which concerned an application for an extension of time under comparable Queensland legislation, the Full Court of the Supreme Court of Queensland held that it is not essential for an applicant to show a prima facie case of liability: Mansfield CJ at 378; Stable J (with whom Wanstall J agreed) at 384. Similarly, in this State the Full Court has held that, on an application for the renewal of a writ, it is not essential to establish that the plaintiff has a prima facie cause of action or a cause of action which has reasonable prospects of success: National Mutual Life Association of Australasia Ltd v Huddlestone [1997] TASSC 73; 72/1997, per Zeeman J (with whom Wright and Crawford JJ agreed) at 4."
The applicant's evidence as to the circumstances of the accident was as follows. At a little after 3 pm on 24 June 2013 she was driving her Nissan van in a general northerly direction along the Brooker Highway. The north and south bound lanes were divided by a guard railing. The speed limit was 100 kmph. The applicant was in the left-hand lane of the two north bound lanes and travelling at about 80 kmph. About three to four car lengths in front of her was the white sedan, also travelling at approximately 80 kmph. In front of the white sedan was a truck. The truck unexpectedly stopped suddenly in the left land. The white sedan stopped behind it. The applicant maintained her speed of about 80-90 kmph and started to move over into the right-hand lane to overtake the stationary vehicles in front of her. As she commenced the manoeuvre the driver of the white sedan, without indicating, accelerated from a stationary position towards the right-hand lane. The applicant swerved to the right. Her car skidded and she lost control with the car crashing into the centre guard railing.
Having observed the applicant in the witness box I did not doubt her honesty. However, her recollection or reconstruction of events would appear to be unlikely to be accurate. The applicant's evidence was that she did not change lanes or slow her speed when the white sedan, which had been three or four car lengths in front, came to a stop. It was only after the white sedan came to a stop that the applicant commenced to manoeuvre her vehicle into the right-hand lane. It is impossible to envisage how this could have happened without the applicant's vehicle colliding with the rear of the white sedan. The applicant's 17 year old daughter, who was a passenger in the car, said that the distance which her mother was maintaining between her vehicle and the white sedan as they travelled along the road before the accident was only a couple of car lengths.
Within about a week of the accident the applicant completed and submitted a "Notice of Accident" form and sent it to the Board. In that form the applicant made no mention of the white sedan stopping behind the truck and no mention of the driver of the white sedan having failed to indicate before moving towards the right-hand lane. In the form the applicant said that she believed that no one was to blame for the accident. In re-examination she said that she held this opinion at the time because it was the opinion of the loss assessor engaged by the applicant's car insurer.
The accident was witnessed by the driver of a vehicle travelling about 600 metres behind the applicant. He saw the applicant's van move into the right-hand lane before the white sedan in front commenced to also move into the right-hand lane. He then saw the applicant's van swerve to the right to avoid colliding with the white sedan. He saw the accident and drove just past the accident scene before pulling over, whilst his wife dialled 000.
The witness observed that the driver of the white sedan left the accident scene shortly after the accident and before a police officer had arrived.
The police officer who attended the accident scene spoke with the applicant and submitted a report attributing the accident to "inattentiveness" and recording that no further action was to be taken. The police officer's report included the following description of the accident:
"Unit 1 travelling North in the left hand lane. Vehicle in front of Unit 1 slowed for traffic, driver of Unit 1 was forced to brake heavily and served to her right to avoid colliding with the vehicle in front of her. Unit 1 collided with the wire barrier causing damage to both the front of Unit 1 and the wire barrier.
No injuries, no other vehicles involved."
The ambulance officer who attended the scene made the following record:
"single car motor vehicle accident, driver braking heavily to avoid running into car in front, slid to right hand side of dual lane carriageway, impacting drivers side front corner of car into guard rail, car then driven over to left side of raod [sic] and awaited AT arrival. OA: minor damage to front right of car, 3x occupants, Tammy [sic] – Driver, tearful and upset but settled quickly with reassurance, denies pain, denies headstrike, denies LOC, estimates slow speed by time of impact. Nil respiratory distress, skin pink warm dry, radial pulse regular, nil abdominal pain, nil seat belt marks, nil c-spine pain on palpation. Declining offers of transport to RHH for further assessment. <P> Tammy's [sic] 2 teenage daughters also in car both deny any pain or injuries refusing assessment. All advised to stay home with Tammy's [sic] husband and call AT back if develop, chest pain, abdominal pain, neck pain or feeling particularly unwell."
Since the accident the applicant has suffered from low back pain. She went to see her general medical practitioner a few days later and then underwent a course of physiotherapy. Her back pain did not improve and in January 2014 she consulted a rehabilitation specialist. By February 2014 the applicant's back problems were not improving. Her daughter suggested that she see a lawyer. The applicant first saw a lawyer in late February 2014. The lawyer obtained the police report and copies of the documentation submitted to the Board by the applicant in early March and sent the notice of intention to make a claim to the Board by letter dated 11 March 2014.
Enquiries have been undertaken to endeavour to identify the white sedan, its female driver, the truck and its driver. These enquiries have been unsuccessful.
The evidence demonstrates the existence of an arguable case that the accident was caused, at least in part, by the driver of the white sedan. There is evidence capable of supporting a finding that the white sedan cannot be identified.
The applicant's failure to give prompt notice of intention to make the claim has been explained. Her injury was not sufficient to occasion a trip to hospital and was not debilitating. The applicant's lower back problems persisted. She was not aware of the need to issue a notice. She consulted a lawyer shortly after her daughter recommended that she should do so. The notice issued promptly thereafter.
Counsel for the respondent submitted that the Board had been prejudiced by the failure to give a timely notice. He observed that the "Notice of Accident" form completed by the applicant gave no reason for the Board to investigate the accident circumstances. The applicant had stated in the form that no one was to blame for the accident.
I accept that prompt investigation may have turned up more witnesses to the accident and more details as to the circumstances. However, there are several witnesses available and I do not think that the chances of a fair trial of the applicant's prospective claim have been lost. Delay may have caused some diminution in the quality of justice which might be obtained, but not so extensive as to outweigh the policy, or general purpose, of the legislation, namely that a remedy is available for persons suffering personal injury by the negligent driving of an unidentified vehicle.
The applicant has a viable claim. The delay in notifying the Board of the intention to bring the claim has been explained. The chances of a fair trial have not been lost. In the circumstances I am persuaded that the justice of the case lies with the grant of the extension sought.
There will be an order extending time for giving notice of intention to make the claim to 13 March 2014.
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