Penrith City Council v Nominal Defendant
[2012] NSWDC 18
•07 March 2012
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18 Hearing dates: 1 & 2 March 2012 Decision date: 07 March 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the first and second defendants on the plaintiff's claim;
2.The plaintiff is to pay the costs of each of the defendants on the ordinary basis unless otherwise ordered;
3.Exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - near collision between bus and motor vehicle - injury to passenger on bus - subrogated claim - recovery action by workers' compensation insurer pursuant to s 151Z(1)(d) of Workers' Compensation Act 1987 - whether plaintiff established negligence of drivers of two unidentified motor vehicles - whether due inquiry and search established; DAMAGES - damages assessment in recovery proceedings Legislation Cited: Australian Road Rules, r 126
Motor Accidents Compensation Act 1999, s 34, s 39
Workers' Compensation Act 1987, s 151Z(1)(d)Cases Cited: Anikin v Sierra [2004] HCA 64
Derrick v Cheung [2001] HCA 48
Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228
NSW v Nominal Defendant [2004] NSWCA 328
Oztan v NSW Ministerial Corporation (1995) 23 MVR 259Category: Principal judgment Parties: Penrith City Council (Plaintiff)
East Realisations Pty Ltd (in liq) (First defendant)
Nominal Defendant (Second defendant)Representation: Mr M Jenkins (Plaintiff)
Mr R Cavanagh (First defendant)
Mr J Catsanos (Second defendant)
Turks Legal (Plaintiff)
Vardanega Roberts (First defendant)
Holman Webb (Second defendant)
File Number(s): 2009/336531
Judgment
Table of Contents
Nature of case and the parties
[1] - [ 7]
Facts not in dispute
[ 8 ] - [1 9 ]
Issues and summary of findings
[ 20 ] - [ 22 ]
Issue 1 - Negligence of the respective drivers
[ 2 3 ] - [ 57 ]
The driver of the motor vehicle
[ 25 ] - [ 32 ]
The driver of the bus
[ 33 ] - [ 56 ]
Conclusions on alleged negligence
[ 57 ]
Issue 2 - Due inquiry and search
[ 58 ] - [ 70 ]
Issue 3 - Damages
[ 71 ]
Disposition
[ 72 ]
Costs
[ 73 ] - [ 75 ]
Orders
[ 76 ]
Nature of case and the parties
These proceedings are brought by the plaintiff pursuant to s 151Z(1)(d) of the Workers' Compensation Act 1987 by Allianz Australia Insurance Limited, the workers' compensation insurer of Penrith City Council.
The proceedings are brought in the name of Penrith City Council by way of subrogated right, seeking to recover damages being indemnity for workers' compensation payments made by that insurer to an injured employee employed by the Council. Those payments were made in respect of injuries sustained by the employee in a motor vehicle accident involving a near collision between a motor vehicle and a bus, whilst that employee was travelling on that bus on her journey home from work.
The claim against the first defendant, East Realisations Pty Ltd (in liquidation), concerned alleged negligent driving of the bus in which the plaintiff had been travelling at the time of the incident. That company in liquidation carries the burden of any liabilities of Westbus Proprietary Limited, which at the time, operated a large western Sydney bus business by various named entities. The plaintiff sought a finding that the bus in question was a Westbus bus, for which the first defendant was responsible, even though the bus and its driver could not be identified.
The plaintiff claimed that in the alternative, as the driver of the bus could not be identified after due inquiry and search, the Nominal Defendant, the second defendant in the proceedings, should be the party responsible for the incident giving rise to the plaintiff's claim.
The plaintiff made a further and separate claim against the Nominal Defendant because the driver of the other vehicle that was also involved in the near collision, could not be identified after due inquiry and search.
The claim for indemnity made by the plaintiff was in the sum of $109,764.69, plus pre-judgment interest in the amount of $54,117.54, totalling $163,882.23. The claim against the respective defendants was in differing amounts because Allianz was statute barred from bringing part of its claim against the Nominal Defendant for the period 21 July 2003 to 11 August 2004. Nothing of substance turns upon those circumstances.
The Motor Accidents Compensation Act 1999 [" MAC Act" ] applies to these proceedings.
Facts not in dispute
At or shortly after 1.30pm on Monday 21 July 2003, Miss Angela Blacklow, who was an employee of Penrith City Council, was seated in a bus described as a shortened or Mercedes Nipper bus on a regular Westbus route number 766. Although Miss Blacklow has since married and her statements were in her former name, for convenience, I shall refer to her by her single name without intending any disrespect to her.
The following account of events emerges from the reconstructed account of events as obtained through the evidence of Miss Blacklow. I use the term reconstructed advisedly in this instance, not as a criticism of Miss Blacklow, who I am satisfied did her best to recall the events, but because I accept her uncontradicted evidence that before the event in question, she was not really paying attention to what was happening in front of the bus: (T25.1 to T25.47). Accordingly, the following account must be recognised to be a reconstructed one rather than a sequential accounting of actually observed events.
As the bus in question was being driven along Mount St in Mt Druitt, it approached the intersection of that street with Luxford Rd in the kerbside lane. At that time, a vehicle in front of the bus " stopped dead ", or suddenly, at the traffic lights for an unknown reason, notwithstanding that the vehicle in question apparently faced a green traffic control signal allowing it to proceed.
As a result, the driver of the bus in which the plaintiff was seated, applied or " slammed " on the brakes of the bus very firmly, and at the same time caused the bus to swerve to the right, and in doing so, was successful in avoiding a collision between the front of the bus and the rear of the vehicle in front.
In these events, Miss Blacklow was thrown from her seat and onto the floor of the aisle of the bus. As a result she sustained bodily injury. She quickly got to her feet and resumed her seat. She stated, and I accept, that she did not take any details of either vehicles or of the drivers of those vehicles as she felt somewhat embarrassed at having found herself on the floor in those circumstances, and was not then fully aware of the extent of her injuries. She stated that after the events in question , the bus had stopped in a position very close to the vehicle in front.
Miss Blacklow noted the vehicle in front was a red or m a roon sedan. She knew from past familiarity with the route , that the bus she had been on was a Westbus bus , however, she had not taken any further particulars at the time. The available description of the vehicle that had stopped in front of the bus was insufficient to enable it or its driver to be identified. Similarly, although Westbus owned many buses fitting the description of the bus involved in the incident, the particular bus and its driver have not been identified. The owner of the bus is now a company in liquidation, and I am informed that no inquiries had been made of that company seeking records or information of any driving rosters for that particular day.
The parties were unable to adduce any evidence identifying the registration numbers of either the bus or the other vehicle, nor were they able to identify the respective drivers. The police were not called to the scene as there was no actual collision between the vehicles, and at the time there was no apparent serious injury requiring a report to the police .
As a result of the described events, none of the customary evidence that is seen in similar cases was introduced on the issue of due inquiry and search: s 39 of the MAC Act .
Miss Blacklow had prepared 3 relevant statements. The first, dated 21 August 2003, comprised a workers' compensation claim form, Exhibit "D1.1", which, in essence, stated:
"I was travelling home on a WESTBUS from work, when a car stopped suddenly in front of the bus, and the bus driver slammed on his brakes to avoid hitting the car and I got thrown from my seat."
Subsequently, Miss Blacklow's second and third statements, which were respectively dated 24 August 2004 and 26 February 2007, provided more detailed accounts of her recollection of the events: Exhibit "D1.3", and Exhibit "D1.2". These statements were obtained by investigators who had been retained by insurers. I shall return to these statements when analysing my conclusions in respect of the liability issues to be decided.
The parties agreed that in the event Miss Blacklow had brought an action for damages for personal injuries sustained in the motor vehicle accident, her notional damages would have been $300,000 plus agreed or assessed costs. Accordingly, as the sum sought by the plaintiff by way of indemnity in these proceedings is less than that amount, the plaintiff's claim under s 151Z(1)(d) claim is maintainable: Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263, per Cole JA at [8]; p 265.
The defendants did not dispute either the amount of the plaintiff's claim for damages or the amount claimed for pre-judgment interest. Accordingly, it is unnecessary to recount Miss Blacklow's personal details, her background, the nature and extent of her injuries, and the economic effect that such injuries and disability had upon her. She made no claim of her own for damages and was content to rely upon her workers' compensation rights. She only appeared as a witness, and was not an interested party to the proceedings.
Issues and summary of findings
The issues raised to be determined in the proceedings were as follows:
Issue 1 - Whether the respective drivers of the unidentified motor vehicle and the bus were negligent in the described circumstances, and if so, in what respects;
Issue 2 - Whether in recovery proceedings the plaintiff was obliged to prove due search and inquiry, and if so, has the burden of doing so been relevantly discharged;
Issue 3 - If the plaintiff was successful on the first two issues, then the extent of the plaintiff's entitlement to damages and pre-judgment interest was conceded.
For the reasons that follow, I have found that the plaintiff has failed to establish negligence on the part of either the driver of the motor vehicle or the driver of the bus. That finding necessitates the entry of a verdict and judgment for the defendants in the proceedings. As a consequence the issues of due inquiry and search and damages do not arise.
If I had been required to decide those remaining matters, there was no issue over damages including pre-judgment interest in the amount of $273,498.61. On the issue of due inquiry and search, I have found that the plaintiff was obliged to satisfy that requirement for such matters, but has failed to do so in this case.
Issue 1 - Negligence of the respective drivers
The plaintiff also argued that the bus driver, being in control of a powerful heavy vehicle, and being a professional driver, had additional obligations for the safety of others, including towards his passengers: Anikin v Sierra [2004] HCA 64. It is relevant to observe that in that case, the discussion of the obligation of the bus driver referred to obligations to pedestrians. Perhaps there is no relevant difference here. In any event, the obligation of the driver was to take reasonable care in the circumstances.
For the plaintiff to succeed in this action in respect of alleged negligence on the part of either of the respective drivers, it must discharge the onus of establishing relevant departures from the required standard of care in the circumstances. In my view, this has not been established. I remain unpersuaded that either of the drivers of the unidentified vehicles were negligent. My reasons for reaching that conclusion were as follows.
The driver of the motor vehicle
First, in respect of the driver of the motor vehicle that had stopped in front of the bus, all that has been shown is that the vehicle in question had stopped suddenly at an intersection whilst there was a green light that permitted it to continue forward. There can be no suggestion that it was unlawful to stop a vehicle in such circumstances if the prevailing traffic conditions so required.
The action of stopping a vehicle in those circumstances does not of itself, and without more details, necessarily require a finding of negligence on the part of that driver.
There would be many potential reasons for stopping a vehicle in those circumstances. These would include the sudden appearance of a pedestrian on or near the roadway, whether behaving reasonably or not, or the sudden appearance of an animal or some other object on the road. A prudent driver would be required to be on the lookout for such possibilities and should at all times be prepared to take effective action aimed at avoiding a collision: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 . The array of appropriate reactions would include stopping suddenly.
In my view, all of the arguments advanced on behalf of the plaintiff to seek an inferential finding that the driver of the motor vehicle had been negligent involved unwarranted and impermissible speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
The plaintiff was unable to identify any facts or circumstances from within the evidence in this case, that critically distinguished, on the one hand, the actions of prudently stopping the motor vehicle suddenly, such as to avoid a collision with something, or someone, or a hazard ahead of that vehicle on or near the roadway, and on the other hand, stopping negligently so as to cause a hazard to following vehicles, such as the bus in this case.
The arguments advanced on behalf of the plaintiff concerning the reasons for the female driver of the motor vehicle stopping suddenly, included being uncertain as to whether she should turn left or right at the intersection. This involved unsupported speculation. There was no evidence to support the drawing of such an inference. Counsel for the plaintiff conceded that there could have also been legitimate reasons for stopping, such as the appearance of a dog on the road , for which there was no evidence, or the driver being blinded by the sun, a circumstance which I considered to be improbable given common knowledge of the angle of the sun at 1:30pm.
None of the arguments advanced on behalf of the plaintiff rise above speculation and conjecture and on the evidence it is not possible to draw the inferences sought by the plaintiff.
Accordingly, I find that the plaintiff has failed to discharge the onus of showing that the driver of the vehicle that stopped in front of the bus did so as a result of breach of any duty of care that she owed to other road users.
The driver of the bus
Secondly, in respect of the driver of the bus, I am not prepared to find that he was negligent on the evidence that has been adduced by the plaintiff. I find that no relevant breach of duty of care has been established on the part of that driver.
I have already referred to Miss Blacklow's description of liability as contained within the workers' compensation claim form that she had signed on 21 August 2003. As she had completed the formalities for claiming workers' compensation at an early stage, she had no further need to maintain recall of, or refer back to, the circumstances of the incident in a formal way until later interviewed by an insurance investigator for the purpose of these proceedings. This was apparent from her evidence.
Miss Blacklow was next interviewed on 24 August 2004, at which time her statement of that date was not specific of the circumstances of the incident. Paragraphs 12 and 13 of her statement of that date simply state:
"12. On 21 July 2003 I was on my way home from work and travelling on a Westbus bus. We were travelling along Mount Street, Mt Druitt when the bus stopped suddenly due to another car.
13. I was thrown from my seat and put my left arm out to stop the fall. I then hit my head on the floor of the bus."
Subsequently, on 26 February 2007, she was again interviewed by an insurance investigator. Her statement of that date, at paragraphs 6 to 12, relevantly states:
"6. On 21 July 2003 I finished work early at about 1.00 p.m. as I was taking time in lieu of extra hours that I worked and it was the last day of the school holidays. I had to wait for the next bus which was at approximately 1.30 p.m. which I caught from Oxley Park to Mt. Druitt so I can catch a bus home.
7. At approximately 2.50 p.m. I caught a Westbus bus, number 766„ which was a Nipper bus, from Mt. Druitt bus depot near Mt Druitt station to travel home. That bus travelled around the corner and into Mount Street. I was sitting on the right hand side behind the first seat, facing the front of the bus. It was a two-seater seat and I was alone in it and was sitting closest to the bus aisle. There were other passengers in the bus but it was not full or crowded. The weather was fine and sunny. The road was dry.
8. The bus was travelling ( sic) along Mount Street in the left lane, closest to the kerb. I cannot estimate the speed at which the bus was traveling (sic) but he was not doing more than 60 klms (sic) per hour, which is the speed limit. As it approached the intersection of Mount Street and Luxford Road, the traffic lights at that intersection were green, a car in the same lane in front of the bus, suddenly stopped dead at the lights in the middle of the intersection. The bus driver applied the brakes and swerved to the right, to try and stop and/or not to collide with the car in front of him.
9. As a result I fell forward violently onto the ground, into the aisle of the bus. I put my arms out to try and stop myself from falling but I could not. My arms hit the floor and my forehead also hit the floor. The woman that was sitting in the front left seat fell forward into the bag compartment, which is near the bus driver.
10. I l ayed ( sic) on the floor momentarily and got myself up. I felt a pain straight away in my left shoulder. The bus driver was very upset about what happened. He asked me and the other woman if we were OK. I said that I was a bit sore but nothing that a hot bath won't fix. I was very embarrassed. None of the passengers came to my help.
11. The bus stopped at an angle across the two lanes, on the right rear of the car that had stopped at the lights. The bus driver called out to the driver of the car. As I got back to my seat I saw that car, which was a smallish new model sedan, red or maroon. The driver was a middle-aged woman and she had a male passenger in the front seat. The woman driver gave the bus driver a filthy look and turned right into Luxford Road from the left lane and drove off.
12. The bus driver then got the bus going and drove back into the left lane and continued on the journey."
In my view, none of the matters outlined in these statements supports a finding that the driver of the bus was negligent.
The driver of the bus was duty bound to take reasonable care whilst driving the bus, including by trying to avoid a collision that might occur as a result of the foreseeable actions of other road users.
I accept that the bus driver ought to have readily foreseen the possibility of the vehicle in front stopping suddenly, and therefore he should have been in a position to take prompt evasive action in order to avoid a collision by appropriately braking and or swerving. In my view there is no evidence upon which it could be reasonably found that the driver of the bus had either driven or had reacted unreasonably, imprudently or negligently .
There was no evidence of excessive speed on the part of the bus in the events leading to the collision. There was no evidence as to what, if anything, that might have caused the driver of the motor vehicle in front of the bus to stop suddenly, or whether that factor or those factors also operated to influence the actions of the bus driver in braking heavily and swerving.
As is apparent from common knowledge, and from the appearance of the bus in the photographic exhibits and from the technical specifications of the bus, the driver would have most probably sat much higher up from the road than the driver of the vehicle in front, and would quite probably have had a good view of the road conditions ahead, including any potential hazards that may have required taking avoiding action of the kind taken by the bus driver in this instance.
A flaw in the plaintiff's argument concerning the alleged negligence of the bus driver is that the only relevant road conditions that applied at the time involved the motor vehicle and the bus, and the application of the brakes on both of those vehicles, and in the case of the bus driver, swerving the bus to the right.
Whilst there was no evidence called of the presence of o ther potential factors at play, I consider it would have been unlikely, that on a working day, at that time, at a traffic light controlled intersection, that the respective drivers had nothing but clear roadway ahead of them, including nothing between the motor vehicle and the bus.
I accept that there is no evidence of other factors, but I nevertheless doubt that the road conditions were as sterile and clinical as the argument advanced on behalf of the plaintiff. It appears to me that the only reason the description of the prevailing circumstances is devoid of any additional descriptions that could have been forthcoming from the driver of the motor vehicle and the driver of the bus is that those drivers are simply not available to give evidence .
Accordingly, I must proceed upon my analysis on the basis of the evidence that is available, such as it is.
The plaintiff invoked r 126 of the Australian Road Rules , to argue that the bus driver failed to drive at a sufficient distance behind a vehicle travelling in front so as to enable safe stopping and to avoid a collision.
In the present case, as I have already stated, it is not known what caused the driver of the motor vehicle in front of the bus to stop suddenly. Whatever had caused the sudden stopping of that vehicle, the driver of the bus certainly avoided a collision with the vehicle in front. In my view the bus driver adequately discharged any duty owed as a result of the requirements of r 126.
The further argument made by the plaintiff is that the need for the driver of the bus to swerve is evidence that supports the conclusion the bus was not being driven safely, as required by r 126.
The argument proceeded upon the premise that the bus should not have been driven so close to the motor vehicle so as to require the driver to employ such extreme braking and swerving so as to cause Miss Blacklow to be thrown from her seat. The flow in that argument is that there was no evidence as to how close the bus was being driven in relation to the rear of the vehicle in front.
The argument continued to the effect that if there had been a more measured response by the driver of the bus in the circumstances, including to stop safely without swerving, the accident would not have occurred.
The end point of that argument was that the bus driver had permitted the bus to come dangerously close to the motor vehicle in front so that nothing but an unsafe manoeuvre was available in the circumstances.
The difficulty I have with that argument is that there is no description of the distances involved and of the surrounding events. Those events would necessarily include the prior speed of the motor vehicle, the distance it had travelled between the sudden application of the brakes and when it stopped, the speed of the bus before the brakes were heavily applied, whether there was a degree of lighter braking beforehand, which Miss Blacklow may not have perceived, the distance taken to stop the bus from the time the brakes were heavily applied, and any permissible analysis that legitimately emerges from the dynamic interaction of such factors, if known.
In addition, there is the absence of any detail of other things that either may or may not have been happening on the roadway in the near vicinity, that could have influenced the actions of the driver of the bus. All that is available comprises the understandably limited observations of Miss Blacklow, who, from where she was seated on the bus, had not seen anything of the road conditions ahead before the braking and swerving manoeuvres of the bus . In my view, her statements, and the conclusions within those statements, must be read in that light.
Whilst cases such as this must be decided on the available evidence, nevertheless, the decision must be rational. The absence of evidence of the surrounding factors makes it difficult to simply conclude, as the plaintiff seeks, by way of inference, that the driver of the bus was negligent, and that such negligence was the cause of the injuries suffered by Miss Blacklow, and therefore the cause of the loss suffered by the plaintiff for which indemnity is sought.
In my view on the evidence adduced, the argued conclusions sought by the plaintiff are unpersuasive. Furthermore, it is the type of inferential reasoning concerning negligence and causation that has attracted the highest authoritative criticism: Derrick v Cheung [2001] HCA 48; at [13].
Accordingly, I do not accept the arguments advanced on behalf of the plaintiff to the effect that there was negligence on the part of the driver of the bus, and that this was the cause of the plaintiff's claimed losses.
In my view it has not been shown that the action of the bus driver in applying the brakes heavily, or in swerving the bus to the right to avoid a collision, involved any departure from the required standard of care.
Conclusion on alleged negligence
Accordingly, I see no reasonable basis upon which to make findings that either of the unidentified drivers was negligent.
Issue 2 - Due inquiry and search
As a consequence of my finding that neither of the drivers of the unidentified vehicles were negligent, the question of due inquiry and search does not relevantly arise for decision.
However, to allow for the possibility that it may be determined on appeal that I have erred in reaching my primary conclusions on liability, I will briefly set out the reasons for my view that the plaintiff has failed to establish due search and inquiry in any event.
The plaintiff tendered a bundle of certificates documenting that at the relevant time, Westbus, for which the first defendant company is responsible, owned eight short model Mercedes Benz LO812 type yellow buses of the kind identified by Miss Blacklow in her evidence as being similar to the bus involved in the incident. Those searches identified the particular registration numbers as being MO 883, MO 8389, MO 8870, MO 8882, MO 8901, MO 8902, MO 8907 and MO 9816. The evidence also showed that Zurich was the CTP insurer in respect of each of those buses.
On the basis of that evidence, the plaintiff sought a finding that the evidence was sufficient to inculpate a bus belonging to the first defendant. Whilst such an inference may arise, it nevertheless still falls well short of being sufficient evidence to enable a finding on the balance of probabilities, that a particular bus was involved in the incident.
All this evidence shows is that it is possible, or may be likely, that one of a number of a particular class of buses belonging to the first defendant may have been involved in the incident. That evidence is not sufficient to attach blame to a particular bus or driver, or for liability to attach to a particular policy of insurance.
As the plaintiff is not able to identify the particular bus, the plaintiff must proceed against the Nominal Defendant, and even though the action involves recovery proceedings by way of indemnity, the requirement of due inquiry and search, with emphasis on "due", must still be satisfied: s 34 of the MAC Act .
In support of the proposition that the plaintiff is not required in this case to satisfy the due inquiry and search provisions of s 34, the plaintiff relies on the decision in NSW v Nominal Defendant [2004] NSWCA 328, per Santow JA, at [63] to [71].
In my view the plaintiff's argument is misconceived because the facts of this case are distinguishable from those in NSW v Nominal Defendant .
In the present case, the evidence does not justify a finding on the balance of probability, that the bus in question was in fact a Westbus vehicle, even though there is a significant possibility that it may have been. All that can be said is that it was a Westbus route, the bus was yellow and similar to other known Westbus vehicles. The plaintiff has not provided evidence that excludes other possibilities, for example, that Westbus may have hired the bus from another operator, to use an extreme example. Although th at example is open to question as involving speculation or conjecture, the point is that the inference sought to the effect that a Westbus was involved also involves a good deal of conjecture. Miss Blacklow's statement to that effect that it was a Westbus vehicle is not proof of ownership, and that evidence must be seen as being an unproven assumption.
These circumstances are very different to the position in NSW v Nominal Defendant, where the bus in question was indisputably a government bus, which therefore precluded invoking the description that it's identity "cannot after due enquiry (sic) and search be established " [71].
In the present case it is plain that some avenues of inquiry were open to the plaintiff but were not taken. Accepting that neither the injured employee or the employer had occasion to undertake a search for the identity of the owner and/or driver of the bus until much later in the piece, and only after the plaintiff had incurred substantial payments, when the trail for potential inquiries was cold, there was still an important inquiry that in my view was "due", and which takes this case out of the category of futile inquiry or charade procedures of the kind referred to, and therefore excused, in Oztan v NSW Ministerial Corporation (1995) 23 MVR 259, and similar cases.
In my view, the distinguishing feature of this case is that the plaintiff, or more properly, Allianz, failed to make a rudimentary enquiry of the liquidator or administrator of the first defendant company to seek to search its records for a drivers' roster or similar records, or to seek to identify a past or present employee with a relevant corporate memory of routes, drivers and rosters. Evidence of such an enquiry was entirely absent.
In my view, whilst such an inquiry, may possibly have ended up as unfruitful, and proven to be futile, it was nevertheless "due" according to the requirements of s 34 of the MAC Act .
In my view, the plaintiff's failure to pursue and exclude that due avenue of enquiry must be characterised as a relevant failure to establish that due search and enquiry had been undertaken .
Issue 3 - Damages
As a consequence of my primary findings, the issue of damages does not relevantly arise. If I had been required to assess damages, I would have assessed damages in the total amount of $273,498.61. That amount, if awarded, would have required division between the respective defendants in the manner identified by counsel for the plaintiff during argument, to reflect the fact that part of the plaintiff's monetary claim was statute barred as against the Nominal Defendant.
Disposition
As the plaintiff has failed to establish negligence on the part of the first defendant, or on the part of either of the unidentified drivers for which the second defendant could have been held to be liable, there must be a verdict and judgment for the defendants in each instance.
Costs
As the plaintiff has failed in its action, the usual consequence is that the defendants are entitled to have the plaintiff pay their costs on the ordinary basis, unless an entitlement to some other order can be established.
Surprisingly, for a case such as this, which in reality involved a contest between three insurers, the parties did not pursue a mediation, and instead incurred the full expense of litigation. During the course of the hearing there were at least 9 persons present throughout , being the respective counsel, solicitors and I assume, support staff or claims personnel. The reasonableness of the costs incurred is a matter for a costs assessor to determine .
In the absence of evidence indicating the need for a different order, I consider that the appropriate order for costs is that the plaintiff should pay the costs of each of the defendants on the ordinary basis.
Orders
I make the following orders:
(a) Verdict and judgment for the first and second defendants in the proceedings;
(b) The plaintiff is to pay the costs of the defendants on the ordinary basis unless otherwise ordered;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required;
Amendments
26 March 2012 - Slip Rule 26/03/2012 - “$219,529.98†is changed to “$109,764.69â€; $53,968.63†is changed to “$54,117.54†and “$273,498.61†is changed to “$163,882.23â€
Amended paragraphs: Paragraph 6
Decision last updated: 26 March 2012
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