Motor Accidents Insurance Board v Bowles

[2013] TASSC 5

[2013] TASSC 5

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Motor Accidents Insurance Board v Bowles [2013] TASSC 5

PARTIES:  MOTOR ACCIDENTS INSURANCE BOARD
  v
  BOWLES, Andrew John

FILE NO:  1119/2011
JUDGMENT

APPEALED FROM:           Bowles v Motor Accidents Insurance Board [2012] TASSC 55

DELIVERED ON:  27 February 2013
DELIVERED AT:  Hobart
HEARING DATE:                   4 February 2013
JUDGMENT OF:  Blow J

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 – Assessment of strength of evidence that vehicle could not be identified.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s16.
Pascoe v Nominal Defendant [1964] QR 373; Johnson v Motor Accidents Insurance Board [1996] TASSC 139, A79/1996, considered.
National Mutual Life Association of Australasia Ltd v Huddlestone [1997] TASSC 73, 72/1997, referred to.
Aust Dig Insurance [1095]

REPRESENTATION:

Counsel:
             Appellant:  B R McTaggart
             Respondent:  A I Gaggin
Solicitors:
             Appellant:  Phillips Taglieri
             Respondent:  Murdoch Clarke

Judgment Number:  [2013] TASSC 5
Number of paragraphs:  19

Serial No 5/2013
File No 1119/2011

MOTOR ACCIDENTS INSURANCE BOARD
v ANDREW JOHN BOWLES

REASONS FOR JUDGMENT  BLOW J

27 February 2013

1. This is an appeal by the Motor Accidents Insurance Board from a decision of Holt AsJ granting an extension of time pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), s16.

1. At about dusk on the evening of Saturday, 13 November 2010 the respondent, Andrew Bowles, was driving his utility along an unsealed portion of Blessington Road towards Blessington when he ran off the road and was seriously injured.  He contends that the collision was caused by the driver of another utility travelling in the opposite direction; that that other vehicle came around a corner on the wrong side of the road; that he took evasive action; and that he lost control of his vehicle as a result.  He contends that he has no information as to the identity of the other vehicle except that it was a white four-wheel-drive flat-tray utility.

1. If it is true that he was injured as a result of the negligent driving of an oncoming vehicle, and that the identity of that vehicle cannot be established, then the respondent was entitled to recover damages from the Board under s16 of the Act, provided he complied with certain procedural requirements. Section 16(2) precludes a plaintiff in his position from recovering damages "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". No such notice was given within the period of three months after the accident. However this Court has powers to extend time under s16(2) and (2A). On an application by the respondent, Holt AsJ made an order extending time to 22 August 2012. This is an appeal from that order.

1. The Board has relied on only one ground of appeal. It contends that the learned associate judge erred by failing to consider the respondent's prospects of establishing at trial that, assuming there was a second vehicle as the respondent claims, the identity of that vehicle cannot be established. In particular, the Board contends that, if there was another vehicle, then there were various steps that the respondent could reasonably have taken shortly after the accident for the purpose of identifying the negligent driver; that he did nothing by way of investigating who the negligent driver was; that there is therefore a realistic prospect of him not being able to prove, at trial, that, within the meaning of s16(1)(a), the identity of the other vehicle cannot be established; that that was a factor that ought to have been taken into account by the learned associate judge; and that his Honour erred by failing to take that factor into account.

1. In deciding to grant an extension of time, the learned associate judge took into account the strength (or perhaps weakness is a better word) of the evidence that the accident was caused by the negligence of the driver of an oncoming vehicle, the explanation for the respondent's delay in giving notice under s16(2), and the fact that the Board did not claim to have suffered any specific prejudice as a result of that delay. However he did not undertake an evaluation of the strength or weakness of the evidence suggesting that the oncoming vehicle, if it existed, could not be identified. Counsel for the Board made a submission to the learned associate judge to the effect that, because of inadequate investigation on the part of the respondent, he might not be able to establish at trial that the oncoming vehicle could not be identified.

1. The evidence before the learned associate judge as to that issue can be summarised as follows:

·     The accident occurred in a remote farming district.

·     The respondent gave evidence that he had no recollection of the accident, nor of seeing the other vehicle, but that he was carrying a passenger, Nicholas Andrewartha, who told him what happened. 

·     Mr Andrewartha gave evidence that the respondent was driving at about 80Km per hour on an unsealed road, approaching a right-hand bend, when a white four-wheel-drive flat-tray utility came around the corner in the opposite direction and on the respondent's side of the road; that the respondent swerved to the left and then "tried to correct"; that he lost control, and went down a large embankment; and that his vehicle rolled something in the order of ten times.

·     The respondent suffered multiple fractures to his cervical and thoracic vertebrae, a fracture of at least one rib, a haematoma to the right groin, and multiple lacerations to the scalp, face, arms, legs and body.  He was in hospital for eight to ten days.  When discharged he was required to wear a "halo" brace.

·     After the accident, with help from Mr Andrewartha, the respondent walked about three kilometres to the home of a couple named Towns.  A phone call for an ambulance was made from their home.  He was taken from there to the Launceston General Hospital.

·     It was while the respondent was in hospital that Mr Andrewartha told him that he had been run off the road by an unidentified vehicle.

·     Neither the respondent nor Mr Andrewartha reported the accident to the police.  There was no evidence that the respondent asked anyone else to report it.  Eleven days after the accident, the respondent had a telephone conversation with an officer of the Board who asked him to notify the police and provide details of the station and officer reported to. As a result, he went to the Launceston Police Station, where he was told that the accident was first reported on the day it occurred.  He was told that the police received a report that the accident had happened in the driveway of the Towns' property and that, because they had been told that, the police did not go to the scene.

·     The respondent did not return to the scene of the accident until January 2011.  During that month he went there twice – first with a man named Jamie Robins, and about a week later with a loss assessor engaged by the Board.  His utility had not been moved since the accident.  On the first of the two visits, he went to the home of the landowner whose property the utility was on, Ronald Murphy, but no one was home.  He left a note with his name and phone number.  He gave evidence that he thought he went to another house on the left of the road.  He went to a community hall down the road, where a gathering was taking place, and spoke to a few people to see if the landowner was there.  He said he was the person involved in the car accident.  He asked some people a few questions, but did not remember what he asked.

·     He did not think of putting an advertisement in The Examiner. 

·     He did not see a notice board at the community hall.  He did not think about putting up a notice there. 

·     He had spoken to Ronald Murphy about three or four times, and could not say if he had asked him about a white utility, but was sure that he would have.

·     He phoned Mr and Mr Towns to thank them for their help.  He asked them if they had heard anything about the accident.  Their only feedback was that they did not see any vehicles.  He was sure that he would have asked them about the other utility.

·     Mr Andrewartha did not say anything to Mr and Mrs Towns about a utility forcing the respondent off the road.

·     After the accident Mr Andrewartha did not go looking for white four-wheel-drive flat-tray utilities.  He did not doorknock or make any other enquiries.

1. Counsel for the Board relied on this evidence in making his submission to the learned associate judge as to the weakness of the evidence concerning the inability to establish the identity of the unidentified vehicle.  The transcript of that submission runs for about 4½ pages, and contains references to several authorities.

1. Section 16 does not expressly impose on claimants any duty to undertake searches or enquiries in relation to unidentified vehicles. The relevant subsection (subs(1)) reads as follows:

"(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."

1. Before the commencement of the Act, a similar provision was to be found in the Traffic Act 1925, s65A(1). That subsection permitted damages to be recovered from the nominal defendant when "the identity of the motor vehicle cannot be established". No express requirement as to enquiry or search was imposed. However the Full Court made it clear in Pugh v Pugh [1977] Tas SR 80 that, in order to recover damages under s65A, it was insufficient for a plaintiff to establish only that the negligently driven vehicle had not been identified, and that it was necessary to establish that it could not be identified.  At 101 – 102, Cosgrove J, after reviewing the decided cases, expressed the following conclusions:

"1A condition of liability of the nominal defendant is the inability of the plaintiff to discover, from any source, the identity of the offending vehicle.

2That condition must remain satisfied at the date of judgment.  If, before that, it becomes apparent that the vehicle can be identified, then the proceedings against the nominal defendant must be halted.

3If the plaintiff, by action or inaction, which, in his circumstances can properly be described as fault or neglect, has lost a real opportunity to discover the identity of that vehicle, the court may deny his action against the nominal defendant."

1. His Honour went on to cite with approval a comment made by Crawford J in Slehofer v Nominal Defendant (unreported, 1/1965) at 5:

"It is unlikely that Parliament intended that a person who unreasonably lost an opportunity of making a probably successful enquiry should succeed."

1. The approach taken by Cosgrove J in Pugh v Pugh was adopted by Zeeman J in Johnson v Motor Accidents Insurance Board [1996] TASSC 139 at par[13]; A79/1996 at 3. That case concerned an application for an extension of time under s16(2) of the Act. Zeeman J undertook an assessment of the likelihood of the applicant in that case being able to prove, at trial, that the identity of the negligently driven motor vehicle could not be established.

1. 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.

1. The learned associate judge had evidence as to the strength or merits of the respondent's claim, both in relation to the oncoming vehicle issue and the identifiability issue.  He was no doubt entitled to take into account the strength, or lack thereof, of the evidence as to each of those issues.  He undertook an assessment of the evidence as to the issue of whether or not there was an oncoming, negligently driven, vehicle.  He undertook no such assessment in relation to the identifiability issue.  The Board contends that, given the evidence adduced as to that issue and the submissions made by its counsel in relation to it, his Honour was obliged to do so.

1. In determining this appeal, I have the same jurisdiction and powers as the Full Court has in hearing an appeal against an order of a judge: Supreme Court Civil Procedure Act 1932, s191B(4). As this is an appeal from a discretionary determination, the Board can only succeed if one of the matters listed in s45(1) of that Act is established. That subsection reads as follows:

"(1)   A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that —  

(a)the judge has, in fact, declined or failed to exercise the discretion;

(b)the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c)the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d)by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

1. I will proceed on the basis that the Board contends that the learned associate judge failed to consider material facts, within the meaning of s45(1)(b), in that he failed to consider the facts relating to the identifiability issue.

1. In my view, that issue was not so important that his Honour was obliged to address it in his reasons.  It was open to him to decide what factors were significant.  It was open to him to decide that, given the absence of any specific prejudice to the Board if time were extended, and given the circumstances relating to the respondent's delay, it was in the interests of justice to extend time, despite the respondent not having a strong case.  That appears to have been his thinking. 

1. In my view the respondent has an arguable case in relation to the identifiability issue.  Although the Blessington area is somewhat remote and thinly populated, prompt and thorough enquiries as to who might have been driving a white four-wheel-drive flat-tray utility on the Blessington Road away from Blessington at about dusk on the Saturday in question might well have been unproductive.  Individuals with relevant information might have been reluctant to get someone else into trouble, or to take steps that might involve them in a legal dispute or a court case.  Local residents might have been unwilling to provide information to the respondent because he was not from their local area.  Utilities of the type described could be very common in the area.  It would not be reasonable to expect the respondent to have initiated enquiries until he had recovered, to an appropriate degree, from his injuries, and by then memories might have faded significantly.

1. There is a strong chance that the respondent's action would fail at trial as a result of the trial judge not being satisfied on the balance of probabilities that there was a second vehicle.  The respondent gave evidence that his vehicle was uninsured, but that he had not done anything about trying to identify the man who had run him off the road.  If that had really happened, one would think that he would have made efforts, sooner or later, to find the person responsible so that he could claim damages from him.  As the learned associate judge observed, he received no evidence as to why the respondent did not report the accident to the police; the respondent had a history of drink driving offences; he asserted that he drank about two thirds of a bottle of whisky after the accident, before setting off to the Towns' property; he admitted that he was intoxicated by the time the ambulance officers arrived; he told the Board that he held a full Tasmanian driver's licence, when really he held a restricted licence; and he said that he had been thrown out of his vehicle in the accident, whilst Mr Andrewartha's evidence was that he was wearing a seatbelt.  Mr Andrewartha did not say anything at the home of Mr and Mrs Towns about another vehicle running the respondent off the road.  As I have said, the evidence was that he did not even tell the respondent about that until he saw him in hospital.  Having regard to those pieces of evidence, a judge might find it hard to believe that the accident was caused by the driver of an oncoming vehicle who failed to stop. 

1. To my mind it is quite unlikely that, at trial, the respondent would satisfy a judge on the balance of probabilities that he was run off the road by a negligent driver who failed to stop, but not satisfy that judge on the balance of probabilities that the identity of that other vehicle could not be established.  To the extent that there are weaknesses in his case as to the identifiability issue, I do not think those weaknesses make any significant difference to the overall strength or weakness of his case.  I think it reasonable to infer that the learned associate judge took the same view.  He was not obliged to address every aspect of the submissions made to him.  It is clear that he decided that it was just to extend time, despite the weakness of the respondent's case.  It has not been demonstrated that, in doing so, he failed to consider any material facts or made any other error within the scope of s45(1).  I have therefore decided to dismiss the appeal.