Norris v Motor Accidents Insurance Board

[2002] TASSC 5

[2002] TASSC 5

CITATION:                 Norris v Motor Accidents Insurance Board [2002] TASSC 5

PARTIES:  NORRIS, Alan David

v
MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1015/2001
DELIVERED ON:  19 February 2002
DELIVERED AT:  Hobart
HEARING DATE:  13 February 2002
JUDGMENT OF:  Master Holt

CATCHWORDS:

Insurance - Third party liability - 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 - Considerations applicable.

Motor Accidents (Liabilities and Compensation) Act1973 (Tas), s16(2).
Aust Dig Insurance [61]

REPRESENTATION:

Counsel:
             Applicant:  A Buckley
             Respondent:  W A Ayliffe
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Respondent:  Ayliffe & Ayliffe

Judgment  Number:  [2002] TASSC 5
Number of paragraphs:  9

Serial No 5/2002
File No 1015/2001

NORRIS v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  MASTER HOLT

19 February 2002

1. By writ issued 10 October 2001, the applicant claims damages for personal injuries against the respondent pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), s16. Under that provision, a cause of action arises against the Motor Accidents Insurance Board ("the Board") where a person owning or using a motor vehicle incurs a liability but the identity of the motor vehicle cannot be established or the person incurring the liability has died or cannot, after reasonable enquiry and search, be found. However, s16(2) provides that it is a precondition to the accrual of the cause of action against the Board that notice of intention to make a claim, together with a short statement of the grounds, be given within three months of the accident, or within such further time as the Court may, upon application, allow. The accident which is the subject of the proceedings is alleged to have occurred on 24 February 2001, as a result of the negligent driving of an unidentified motor vehicle. The required notice was not given within three months. The applicant, by application filed 10 October 2001, seeks an extension of the time for the giving of the notice.

1. The applicant asserts that at about 9.45pm on Saturday, 24 February 2001, he was driving his Toyota Hi-Lux 4-wheel drive vehicle along Millvale Road, Dromedary carrying a passenger, Mr Neville Lampkin.  The road was narrow and had a loose gravel surface.  The applicant had just exited a left hand bend in the road when he saw the headlights of a vehicle approaching from the opposite direction.  Although the road was narrow, there was sufficient room for cars to safely pass.  The oncoming vehicle, however, was positioned on the road so as not to leave enough room for the applicant to get by and the applicant was forced off the road and down an embankment on the left hand side.  The other vehicle did not stop.  The applicant walked to a nearby house and then returned to the accident scene with the occupant of that house, Mr Adrian Richardson.  Mr Richardson saw some skid marks on the road which appeared to him to be "very fresh" and which extended "onto the wrong side of the road".  Mr Richardson was still present when a police officer arrived at the scene and he saw the police officer also looking at the skid marks.  The applicant did not appear to be seriously injured but he was taken to the Royal Hobart Hospital by private car and subsequently the Hobart Private Hospital later than night.  An x-ray was taken but the applicant, who reported feeling stiff and sore with neck and back pain, was not detained.

1. The applicant saw his general practitioner about two days later.  He was prescribed analgesics and a muscle relaxant and thereafter was treated with hydrotherapy, massage and the use of a TENS machine.  The applicant's employment as a laboratory assistant at the University of Tasmania, according to the report of the general practitioner, involves "some fairly heavy and repetitive work" and the applicant has not been able to resume his employment since the accident, no light duties being available.  Several weeks after the accident, the applicant's rehabilitation adviser suggested that he obtain legal advice.  On 29 May 2001 he saw a legal practitioner.  He was told of the three month time period for giving notice of an intended claim and instructed his practitioner to give notice.  The practitioner wrote to the Motor Accidents Insurance Board on about 30 May 2001, providing some vague details about the accident, notifying the intent to take proceedings and enquiring whether any point would be taken as to the failure to give notice within the prescribed three month period.  The letter was as follows:

"We act for Mr Norris and Mr Lampkin who were injured in a motor vehicle accident at Dromedary in Hobart on the 24th of February 2001.

Our clients allege that they were forced from the road by an oncoming vehicle which had its lights on high beam and was on the wrong side of the road.

Our clients are just outside the time limit of 3 months to notify of an intention to take proceedings at common law for negligence.  Is the board prepared to wave [sic] any defence on these grounds given the very short period that they are out of time by?

Please find enclosed medical certificates that have been issued by Dr Scarr in relation to Alan Norris.  We understand you have not been provided with these.  We also enclose receipts our client has provided to us for reimbursement.  Please forward payment to him direct.

If you have any queries or questions please do not hesitate to contact Katharine O'Donnell or Danielle Cingel of our Hobart office on 62249999."

1. There is no evidence as to whether or not the respondent requested further information from the applicant's legal practitioner following receipt of the letter of 30 May 2001.  On 23 August 2001, the respondent's legal practitioner wrote as follows:

"The instructions from the Motor Accidents Insurance Board are to rely upon Section 16 and accordingly if your client wishes to continue with his claim an application and [sic] Section 16 to the Supreme Court will need to be made.

As to the issue of negligence the Board does not concede negligence and will allege contributory negligence in the alternative."

1. Counsel for the respondent advised me that no point was taken concerning the lack of evidence on the issue of whether the identity of the oncoming motor vehicle is incapable of being established and, accordingly, I leave that matter alone.  So far as fault on the part of the driver of the oncoming vehicle and consequential injury to the applicant is concerned, I am satisfied that the applicant has a viable case.  The applicant said under cross-examination that the headlights on his car were illuminated; that he could see the oncoming headlights of the other vehicle in sufficient time for him to manoeuvre his car as far as possible to the left hand side of the road, and that nonetheless the oncoming vehicle did not move to its left so as to leave sufficient room for the applicant to pass, even though the road was wide enough to accommodate cars passing each other.  The onset of back pain occurred almost immediately following the accident and there is medical evidence attributing the ongoing back problems to the accident.

1. So far as delay is concerned, the applicant gave evidence that he did not know that he could claim damages in respect of the accident until the matter was mentioned by his rehabilitation provider some weeks later. He did not realise that his injuries would be long term until several weeks had passed by. The three month period for giving notice of intention to make the claim expired on 24 May 2001. An appointment was arranged with a legal practitioner by telephone on 25 May for 29 May. Instruction to issue the required notice was given to the practitioner and the letter which I have quoted earlier in these reasons was sent on about 30 May 2001. No subsequent notice has issued. The letter of 30 May arguably does not amount to a notice for the purposes of the Act, s16, as it may not sufficiently contain the required "short statement of the grounds". The purpose of the notice provision is to enable the Board to investigate the claim whilst the scent is warm. Hall v The Nominal Defendant (1966) 117 CLR 423 at 435. The letter did not give the name of the road on which the accident occurred nor the time of the accident. It did not identify by registration number or description the vehicle in which the applicant was travelling. No information was provided as to attempts to identify the offending vehicle. The Board probably would have needed more information in order to undertake, as best it could, an investigation of the matter. I note, however, that the letter indicated that further information would be provided upon request. I have no reason to suspect that if any request for further information was made by the respondent, it was met with delay or a lack of co-operation. The delay to the time of the letter of 30 May was short. It occurred when the applicant did not know that damages might be recoverable and did not appreciate that his injuries were serious. The applicant acted promptly in issuing instructions to his legal advisers upon being told on 29 May that notice of the claim had to be given. It would have been reasonable for the applicant to assume that if more detail had been required, it would have been requested. In these circumstances, I consider that the delay has been satisfactorily explained, albeit that a notice complying with the requirements of the Act, s16(2) may not yet have issued.

1. On behalf of the respondent it was submitted that the delay has potentially interfered with the respondent's ability to investigate the alleged causative link between the applicant's current back problems and the accident. There was evidence that he had had some problems with his back about three years prior to the accident. A series of cervical, thoracic and lumbosacral scans were performed at the Hobart Private Hospital on 25 February 2001 but no abnormalities were detected. A cervical MRI scan performed on 1 March 2001 did not reveal any obvious abnormalities. A lumbosacral MRI scan performed on 16 March 2001 demonstrated evidence of a mild degree of disc bulging at L4/5, but without any evidence of nerve root compromisation. Specialist Dr Robert Paton, who prepared a report on behalf of the applicant, said, however, after doing facet blocks at L4/5 and L5/S1, that it was unlikely that the pain was arising from the L4/5 or L5/S1 facet joints. There having been a number of medical investigations undertaken shortly following the accident with the results provided to the respondent, I do not consider that any material prejudice arises in the respondent's ability to investigate the cause of the current symptoms. In addition, in my opinion, it is clear from the evidence that the applicant was involved in a car accident on 24 February 2001. The car rolled down a hill and the accident scene was viewed by a nearby resident, Mr Richardson, and a police officer, on the day of its occurrence. The purpose of the notice provision in s16 is principally to enable the respondent to enquire as to whether the alleged accident occurred, if so, in what circumstances, and to try to identify the other vehicle or locate the person responsible. Unless the nature of the injuries allegedly suffered sheds light on these matters, the investigation of the issue of whether injury is attributable to the accident is of less relevance than would be the case if proceedings are sought to be commenced many years after the event and outside the primary limitation period imposed by the Limitation Act 1974.

1. The failure to give the notice promptly carried with it the clear potential to reduce the respondent's ability to investigate the allegations.  The prospect of public advertisement and the canvassing of people living near to the accident scene eliciting useful information would normally be expected to rapidly reduce with the passage of time.  I accept the submission made on behalf of the respondent that this aspect is of particular significance in the case of a single vehicle accident in an isolated area.  In such a case, prompt enquiry is far more important in endeavouring to find out what happened than would perhaps be the case, for example, where a person was injured by an unidentified driver on a busy street where there were many witnesses.

1. The onus is on the applicant to demonstrate that the justice of the case lies in extending the period for giving notice. In this case, I take into account that the plaintiff has a witness to the accident, namely his passenger. I take into account that a nearby resident and a police officer attended the scene shortly after the accident. On the material provided to date, it appears that the applicant's injury is significant, having precluded him from engaging in his employment for a considerable period of time. I take into account that the legislation is designed to provide a remedy for persons suffering injury as a result of the negligent management of an unidentified vehicle. The applicant has a viable case and the delay has been satisfactorily explained. Although I have no doubt that the ability to investigate has been compromised by delay, the notice of intention to make the claim and the offer of further information issued within a week of the statutory three month period. I am satisfied that the justice of the case requires the grant of an extension. The notice which issued on about 30 May 2001 may not have the content required by s16 and a new notice may be needed. Counsel for the applicant advised me that an extension of seven days from the date of my order would be sufficient time. Accordingly, it will be ordered that the time for the giving of the notice pursuant to the Act, s16(2), is extended to 1 week from today.