Raspin v Motor Accidents Insurance Board
[2013] TASSC 30
•28 June 2013
[2013] TASSC 30
COURT: SUPREME COURT OF TASMANIA
CITATION: Raspin v Motor Accidents Insurance Board [2013] TASSC 30
PARTIES:RASPIN, Nerrissa Haylee (also known as Nerrissa Haylee Saunders Raspin)
v
THE MOTOR ACCIDENTS INSURANCE BOARD
FILE NO: 11/2013
DELIVERED ON: 28 June 2013
DELIVERED AT: Hobart
HEARING DATES: 15 March and 19 June 2013
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 – Prejudice arising from failure to give timely notice of the claim.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s16.
Aust Dig Insurance [1095]
REPRESENTATION:
Counsel:
Applicant: Mr N S Munting
Respondent: Mr C W Law
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Page Seager
Judgment Number: [2013] TASSC 30
Number of paragraphs: 23
Serial No 30/2013
File No 11/2013
NERRISSA HAYLEE RASPIN (ALSO KNOWN AS NERRISSA HAYLEE SAUNDERS RASPIN) v THE MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT Holt AsJ
28 June 2013
On 16 January 2013 the applicant issued a writ claiming damages for personal injury suffered in a motor vehicle accident on Boyer Road at Dromedary on 9 March 2010. The defendants are the driver of the vehicle in which the plaintiff was travelling as a passenger and the Motor Accidents Insurance Board. The claim endorsed on the writ against the Board is that the accident was due to the fault of an unidentified driver. The Motor Accidents (Liabilities and Compensation) Act 1973, s16 provides that where personal injury has been suffered in a motor vehicle accident caused by an unidentified driver the like proceedings may be taken against the Board in respect of the liability of the driver as could have been taken against that person, if identified. Two days earlier, on 14 January, the plaintiff filed an originating application seeking an extension of the time within which she could give notice to the Board of her intention to make the claim and a short statement of the grounds of the claim.
In Hall v Nominal Defendant (1966) 117 CLR 423 Windeyer J said of the predecessor of s16 at 442:
"Section 65A creates an entirely new right of action. The times limited for the notice of claim and for the institution of proceedings do not (as do the provisions of the Statute of Limitations in the case of ordinary actions at law) bar the remedy for the enforcement of rights independently existing. They are built-in and essential conditions of the new right itself. They are not, as I read the section, procedural requirements that the defendant might waive as requirements for notices of action sometimes are."
The replacement of s65A of the Traffic Act 1925 (Tas) with s16 did not alter the position. A cause of action does not accrue against the Board under s16 until notice has been given within the time specified in the Act or allowed by the court. See Kevin Roy Johnson v Motor Accidents Insurance Board [1996] TASSC 139 at par[11], per Zeeman J.
It follows that the action against the Board has been instituted before a cause of action has arisen and so is premature and the claim is liable to be dismissed. See Coutts & Co v Duntroon Investment Corp Ltd [1958] 1 All ER 51 at 53. The Board has not applied for dismissal of the action against it and instead is content to have the extension of time application determined first. If the point is taken it may be that, even if an extension of time for the giving of the notice is granted, a new action would be time barred under the Limitation Act 1974, s5A, as arguably the date of discoverability arose on the day of the accident, with the result that the three year statutory limitation period has already expired.
Evidence in support of the application was given by the applicant Nerrissa Raspin and further evidence in support was adduced from the driver of the vehicle in which Ms Raspin was travelling, Rachael Morris.
The affidavit evidence of Ms Raspin included the following. Ms Morris had obtained her provisional driver's licence in about mid-2009. On the morning of 9 March 2010 Ms Morris drove to the home of Ms Raspin's aunty at New Norfolk so that she could collect Ms Raspin and the two could travel to the Northgate shopping centre at Glenorchy for lunch. They travelled along Boyer Road. As they approached a slight right-hand bend a large truck travelling in the opposite direction crossed double unbroken white lines with between one-third and one-half of the truck entering the lane of oncoming traffic. This caused Ms Morris to swerve to the left. A collision with the truck was avoided, but Ms Morris lost control of her vehicle on the unsealed gravel verge of the road causing the vehicle to spin and then roll-over before coming to rest in an upright position against the concrete edge of a culvert. The driver of the truck did not stop. Ms Raspin telephoned her aunty from the car to tell her about the accident. A lady stopped her vehicle and assisted Ms Raspin and Ms Morris in getting out of the car. The lady gave her name to Ms Raspin, but she cannot now remember the name. At the request of Ms Raspin and Ms Morris the lady called an ambulance. A passing doctor stopped to offer assistance but none was required. Ms Raspin's aunty arrived at the accident scene followed shortly afterwards by a police officer and an ambulance. Ms Raspin gave a description of the accident to the police officer before she and Ms Morris were transported by ambulance to the Royal Hobart Hospital. Ms Raspin remained at the hospital for several hours before returning to spend the next two nights at her aunty's house.
Ms Morris did not provide an affidavit but gave oral evidence. Her evidence was substantially consistent with that given by Ms Raspin. She said that the accident occurred after she had swerved to avoid an oncoming yellow log truck near to premises occupied by Norske Skog and other premises occupied by Gunns Timber. She said that about one-quarter of the truck was over the centre dividing line.
Ms Morris said that her car was a write-off and that she subsequently recovered its insured value from her insurer. There was no evidence that the insurance company were advised of the allegation that the accident had been caused by the truck.
Following the presentation of this evidence, which occurred on 15 March, the Board filed a defence in the action not admitting that the accident was a result of negligent driving by Ms Morris.
Neither Ms Raspin nor Ms Morris was aware of any investigation into the circumstances of the accident. The police officer who attended the scene completed a crash report on the day of the accident. In the report, the police officer made no mention of an oncoming vehicle and attributed the accident to "inattentiveness" and "inexperience". The report includes the notation "No further report" next to the word "Action" in the space provided on the form.
The form submitted to the Board by Ms Raspin, claiming scheduled benefits, and the form submitted by Ms Morris, giving notice of the accident each contained the same description of the accident. The descriptions being respectively as follows:
"Question 32
Provide a written description of how the accident occurred (if more room required – please add an attachment).
As the front seat passenger of the vehicle we were travelling along Boyer Road New Norfolk at approx 11.55 am on Tuesday 9/3/2010 towards Bridgewater. We had passed Norske Skog when we approached a small bend and had to move right over to the LHS of the road because an oncoming truck was on the white line. The rear of the car got into the loose gravel on the edge of the road and began to slide, the driver Rachael Morris tried to correct the vehicle in failing to do so the vehicle continued to slide and rolled on the RHS of the road. The vehicle ended up back on its wheels resting on an underground concrete water colvert [sic]."
"Question 14
Provide a written description of how the accident occurred (if more room required – please add an attachment).
As the driver of the vehicle we were travelling along Boyer Rd New Norfolk at approx 11.55 am on Tuesday 9/3/2010 towards Bridgewater. We had passed Norske Skog when we approached a small bend and had to move right over to the LHS of the road because an oncoming truck was on the white line. The rear of the car got into the loose gravel on the edge of the road and began to slide, I the driver tried to correct the vehicle in failing to do so the vehicle continued to slide and rolled on the RHS of the Road. The vehicle ended up back on it's wheels resting on an underground concrete water colvert [sic]."
Each form called for the inclusion of a diagram depicting any other vehicles involved. The diagrams for both forms were drawn by Ms Raspin's aunty, who I infer from the absence of evidence to the contrary, was the same aunty who Ms Raspin called from the accident scene and in whose house she stayed overnight on the day of the accident. Neither diagram depicted any vehicle other than the vehicle driven by Ms Morris.
Both the diagram on the forms submitted to the Board and the police crash report indicated that the centre line on the road was a single broken line, rather than double unbroken lines as asserted by Ms Raspin in her affidavit.
In summary, the information given on the forms submitted to the Board indicated the existence of a truck on, but not over, the centre dividing line and gave no indication that a claim might be made that the accident was the result of the negligence of the unidentified truck driver. If, on receipt of the forms, the Board had obtained a copy of the police crash report, that report similarly would have given no indication that the accident was caused by the negligence of the truck driver. The Board did not cause either Ms Raspin or Ms Morris to be interviewed as to the circumstances of the accident. Neither Ms Raspin nor Ms Morris made any enquiries to attempt to ascertain the name of the driver of the truck, for example, by making enquiries as to whether the origin or destination of the yellow log truck was Norske Skog or Gunns Timber. Neither made any enquiry to find the lady who had stopped by the side of the road to assist. There were no houses nearby to the accident scene and so no residents to be canvassed. The evidence was that after the accident, whilst Ms Raspin and Ms Morris remained at the scene, about 15 cars passed by, but neither Ms Raspin nor Ms Morris made any attempt, by advertisement or otherwise, to see if any other drivers on the road at about the time could assist with information about the accident. The inference, from the fact that the Board did not arrange for Ms Raspin or Ms Morris to be interviewed, is that the Board undertook no investigation into the circumstances of the accident.
The provision which permits proceedings to be taken where personal injury arises from an accident caused by an unidentified driver is designed to provide a remedy in furtherance of the policy that personal injury caused by negligent driving should not go without compensation. Prompt notification is a condition to be fulfilled before advantage can be taken of the provision so as to enable the Board to investigate whilst the scent is warm. The provision which gives a discretion to allow an extension of the time limited for notification of the intention to claim may be exercised where adherence to the time limit would result in an injustice. See Hall v Nominal Defendant (supra) at 434 – 435.
The Motor Accidents (Liabilities and Compensation) Act1973, s16 is as follows:
"16 Special provisions as to unidentified vehicles
(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."
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."
Here, Ms Raspin and Ms Morris have given evidence of being forced off the road by a truck which had entered the lane of oncoming traffic. Ms Raspin suffered personal injury in the accident. Because of the circumstances of the accident and the effluxion of time there is a realistic possibility that Ms Raspin could show at the trial of the action against the Board that the identity of the oncoming vehicle cannot be established. Counsel for the Board conceded that Ms Raspin has a viable case, taking no point about the fact that the issue of the writ against the Board was premature and so liable to be dismissed with a new action seemingly now not possible because of the expiry of the three year limitation period contained in the Limitation Act.
Delay has been partially explained in that Ms Raspin was unaware of the potential to bring a damages claim until about May 2012 when she was told by a doctor that she should consult a lawyer about the accident. A lawyer was not consulted until November 2012, but no explanation for the delay in consulting a lawyer following the doctor's advice to do so was given by Ms Raspin. In mid-December 2012 the lawyer wrote to the Board advising that Ms Raspin claimed that the accident had been caused by an unidentified truck entering the incorrect side of the road.
Failure to comply with the time requirement has resulted in prejudice to the Board in that it was deprived of the opportunity to promptly investigate the matter so that it might be in an informed position to verify or refute the claim. Any investigation which the Board might carry out now would, by reason of the delay, be less likely to result in the acquisition of reliable information than would have been the case had a prompt investigation occurred. The result is that the Board has been left at even a greater disadvantage than is usually the case in meeting such claims. That disadvantage is as Windeyer J observed in Hall v Nominal Defendant (supra) at 445:
"It is quite apparent, and indeed courts have observed, that claims against the nominal defendant based upon … allegations of the presence of an unidentified motor vehicle can easily be made and are not easily disproved."
The difference between the three month notification period specified and the period of delay, being almost three years, is substantial. The failure by Ms Raspin to tell the Board that the accident had been caused by a truck on the wrong side of the road in the form which she submitted claiming scheduled benefits was not explained and this failure, combined with the failure to give timely notice, deprived the Board of any reason to give consideration to conducting prompt enquiries as to the circumstances in which the accident occurred.
The Board has suffered prejudice which could and should have been substantially diminished if the circumstances of the accident had been properly disclosed in the claim form submitted by Ms Raspin shortly following the occurrence. In the circumstances of the present case I regard this as the dominant feature. Accordingly, my conclusion is that the justice of the case rests with a refusal to grant an extension of time.
The application is dismissed.
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