Slinn v Nominal Defendant

[1964] HCA 72

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Taylor JJ.

SLINN v. NOMINAL DEFENDANT

(1964) 112 CLR 334

17 November 1964

Insurance

Insurance—Third party—Action against Nominal Defendant—Unidentified vehicle—"Due inquiry and search"—"Due"—Motor Traffic Ordinance, 1936-1959 (A.C.T.) s. 41 AO (3)*.

Decisions

November 17.
The following written judgments were delivered: -
BARWICK C.J. In this action, which was brought in the Supreme Court of the Australian Capital Territory for damages for personal injury sustained in a road accident, judgment was entered for the defendant. The appellant appeals to this Court seeking the entry of judgment for the plaintiff and the remission of the action to the Supreme Court of the Australian Capital Territory to assess the damages. (at p336)

2. The facts of the matter as found by the learned trial judge were that on the day in question at about 11 a.m. the plaintiff was driving a Holden station wagon from Cooma towards Canberra, her husband sitting beside her and her two young children in the rear seat. The day was bright and sunny. When the plaintiff was some six miles short of Canberra on a portion of the road which was straight, with a dry bitumen surface and reasonably free from traffic, she observed a car approaching some two hundred yards away from her. It was "a medium-sized car, light grey or fawny-grey", as she said (which was all she could tell about it), and was travelling about two feet on its incorrect side of the road. The speed of the Holden station wagon at this time was some forty-five to fifty miles per hour, and the estimated speed of the approaching vehicle some seventy miles per hour. The oncoming vehicle did not alter its course and when it was a hundred yards or so away from her the plaintiff reduced the speed of the station wagon to some forty to forty-five miles per hour and gradually moved further to her left. However, the oncoming car still held on its course and passed her very closely. As the plaintiff said, "There was like a rush of wind and I thought I felt a slight thump on the side at the back and the tail of my car swung round." This movement of the Holden caused it to travel partly outside the bitumen on the gravel shoulder for some distance. It then got out of control, skidded across the road from one side to the other and eventually turned over on its side. The plaintiff was shocked and dazed and was taken to the Canberra Community Hospital where she remained for some two weeks. Her husband crawled out of the car through the broken windscreen. All that he could remember of the passing vehicle was that it was a sedan, greyish in colour and of a medium size. He had no idea how many persons were in it, but rather felt that the driver had been a woman. The two vehicles did not come into contact. It would seem that the thump which the plaintiff said she felt may have been due to her vehicle entering a pothole which was somewhere adjacent to the place where the vehicles may have passed. (at p337)

3. There was a close contest between the parties before the Supreme Court as to whether there had been a second vehicle at all but his Honour accepted the account of the occurrence which the plaintiff and her husband gave. There was no material on which the plaintiff could have been found to be negligent, in any way contributing to the result, and upon his Honour's findings it would be quite clear that his Honour would have been prepared to find negligence in the driver of the passing vehicle. (at p337)

4. However, his Honour found that there had been no, or no sufficient, "due inquiry and search" to satisfy the requirements of the Motor Traffic Ordinance 1936-1959 in the case of an action against the Nominal Defendant: see s. 41AO (3) of the Ordinance. Consequently his Honour entered judgment for the defendant, being of the view either that there was no evidence on which he could find or that he was not prepared to find that the identity of the passing vehicle could not be established after due inquiry and search. The material before his Honour on the question of whether there had been due inquiry and search was scanty. The plaintiff's husband, as his Honour found, having reported the accident to the police, including such description as he had of the passing car, i.e. that it was of medium size and light or fawny-grey in colour, on the day of its occurrence whilst he, the plaintiff's husband, was in the Canberra Hospital, went to the Canberra police station about a week later and talked with a police officer there about the accident. His Honour found the plaintiff's husband an unsatisfactory witness but seemed prepared to accept the view that at this interview the plaintiff's husband asked a police officer whether the other vehicle could be found and that he was told in substance that the chances were negligible, that he wouldn't find the other vehicle. (at p338)

5. The one person known to be near the scene (Mr. Harbutt) and who appeared very shortly after the occurrence, was asked by the plaintiff's husband whether he saw another car to which he replied in the negative. The only other action taken on behalf of the plaintiff was the insertion by the solicitors of an advertisement in a newspaper some five months later, a circumstance upon which no reliance was really placed in the argument of this appeal on behalf of the appellant before this Court. (at p338)

6. His Honour apparently thought that the inquiry, to be a due inquiry and search within the meaning of the Ordinance, s. 41AO (3), must have been made by the plaintiff personally or by her agent, and that there must not only be a due inquiry but there must also be a search. (at p338)

7. I do not think this is an occasion for a general examination of the full import of the relevant words of the Ordinance "the identity of the vehicle cannot after due inquiry and search be established" but at least this much must be said: it is of course necessary for a plaintiff who is suing the Nominal Defendant to adduce evidence upon which it can be found that the identity of the vehicle which caused the injury cannot after due inquiry and search be established. But this does not mean, in my opinion, that the inquiry and search must have been made by the plaintiff or on her behalf. There may be situations in which the tribunal of fact can find that the identity of the vehicle cannot be established on evidence of inquiry and search by others than the plaintiff, though of course that evidence must be properly put before the court on behalf of the plaintiff. Nor need there be in every case some activity, separate and independent of an inquiry, which can be designated as a search. The expression "due inquiry and search" is, as Dixon C.J. said in Cavanagh v. Nominal Defendant (1958) 100 CLR 375, at p 380, the expression of a compound idea. In my opinion, it ought not to have each of the integers segregated so as to require them each to be satisfied in every case. The concept, I think, is that there should be inquiry and that inquiries when they yield leads should be followed up. Asking questions without pursuing answers may very well be found insufficient. (at p339)

8. However, the controlling word for relevant purposes, it seems to me, is the word "due". This word, as has been pointed out in decisions of this Court, accommodates to the circumstances of the case the nature and extent of the inquiry and search which is required. It is therefore essential that close regard be had to the nature of the situation in which the need to establish the identity of a vehicle arises. It is the identity of the vehicle which is to be established, the assumption of the Ordinance being that once the identity of the vehicle can be established, both its owner and whether or not it is insured can be determined. The critical fact in the identification of the vehicle will of course, in general be its registration number. (at p339)

9. Here, on his Honour's findings there could be no question that neither the plaintiff nor her husband could have identified the vehicle; certainly neither could speak of its registration number and each only had the vaguest description of it. The driver of the passing vehicle was almost certainly completely unaware that its course on the road had caused the plaintiff's vehicle to get out of control and to turn over. The two vehicles had not touched each other so that there was no probability that there could be found on a vehicle some mark which might lead to its identification with the occurrence, nor was there any probability that the driver of the other vehicle being desirous of honouring his obligations would report to the police his participation in the occurrence. (at p339)

10. The stretch of road in question was not running through a built-up area but amongst farming properties. It is a fairly well trafficked road and apparently was so on the day and at the time in question. There was nothing to attract the attention of anybody who was not in close proximity to the precise point at which the vehicles passed and excite any observation as to the passing vehicle's identity. (at p340)

11. A police officer gave evidence before the Supreme Court that there was, in his opinion, no way of checking up to identify the other vehicle and that it was an impossible task to do so. (at p340)

12. The question is whether on this material it can be found that the identity of the passing vehicle cannot after due inquiry and search be established. In my opinion, it can and it should. With great respect to the learned trial judge I think too little weight was given to the peculiar circumstances of the case, the nature of the accident, the location, the absence of any avenues along which enquiry might reasonably be made and too onerous a view was taken of the plaintiff's burden under the Ordinance. (at p340)

13. When asked by the Court what steps it was suggested that the plaintiff ought to have taken in order to satisfy the standard of reasonable inquiry appropriate to the circumstances, counsel for the respondent said that a newspaper advertisement might have been made earlier; and that inquiries might have been made of the neighbouring farmhouses to ascertain if anyone had seen the occurrence in such a way as to be able to identify the passing vehicle. To my mind both of these suggestions are unreal. An advertisement really could do no more than give the time of day and the place on the road. There had been no impact, no event of any kind to denote the passing of a vehicle at some seventy miles an hour. The same is true so far as the neighbouring farmhouses are concerned. There is, indeed, no evidence that there were any neighbouring farmhouses: there is no evidence that there were any people either actually or likely to be in such proximity to the point at which the vehicles passed as to be remotely likely to be in the position to observe anything about it which would lead to its identification, bearing in mind that it was travelling at a very high speed - perhaps not such an unusual speed in this section of the road, but at any rate at such a speed as would take it out of view very quickly. (at p340)

14. In my opinion, the appeal should be allowed, the judgment for the defendant ought to be set aside and judgment should be entered for the plaintiff. The action should be remitted to the Supreme Court of the Australian Capital Territory for the assessment of damages. (at p340)

MCTIERNAN J. I take the same view as the Chief Justice. There is, in my opinion, evidence of "due inquiry and search" within the meaning of sub-s. (3) of s. 41AO of the Motor Traffic Ordinance 1936-1959. The evidence is slender, but taking into account the circumstances of the case, it is in my opinion sufficient. The only clue to the identity of the motor vehicle in fault is that it was "medium sized", "light grey or fawny-grey". It is not a case in which no effort to ascertain the identity of the vehicle was made. The Chief Justice in his reasons for judgment has summed up the evidence on the issue. There was nobody from whom to seek information at the scene of the accident but Mr. Harbutt. He had not seen the accident. This was the only possible inquiry which could be made on that occasion. The communications made by the plaintiff's husband to the police were with a view to discovering the offending motor vehicle. The learned trial judge considered these communications deficient because all that the plaintiff's husband asked the police was whether the motor vehicle could be found. Clearly what he said involved a seeking of the vehicle. In my view the answer given by the police officer is important. His answer was "Negligible, you wouldn't find the other vehicle". His Honour said: "Even if his (the plaintiff's husband) question addressed to the policeman, 'What's the possibility of finding this other vehicle?' could be regarded as an inquiry, in my opinion it is not of itself a 'due inquiry' in the circumstances of this particular case. But, even if it could be so regarded it was not followed up by a search or a request for a search and the statutory provision is not fulfilled unless there is both an inquiry and a search. Unless the plaintiff, personally or by her agents, makes both an inquiry and a search, her right of action is stillborn". I do not think that it is a correct construction of sub-s.(3) of s. 41AO to say that it implies that search and inquiry must be the act of the plaintiff or the plaintiff's agent; sub-s. (4) throws light on sub-s. (3) so far as this point of construction is concerned. The expression "due inquiry and search" ought not to be taken to pieces in applying sub-s. (4). I think that the answer of the policeman should not be disregarded, for it marks the peculiarity of the case. It is weighty proof that it was not possible to make any further intelligent investigation into the mystery of the identity of the missing car than that made by the plaintiff's husband. The consideration bears on the issue of "due inquiry and search". (at p341)

2. Advertisements were subsequently put in newspapers requesting any person who was travelling on the road at the place and time of the accident to communicate with the plaintiff's solicitor; the advertisements were as complete as they could be. (at p341)

3. It would not have been reasonable for the plaintiff to have asked her husband or any other person to do anything further to find the offending vehicle. There was no scent to follow. What course could the investigations take? The Chief Justice has dealt with the only suggestion made by counsel for the respondent. If there has been a genuine endeavour to find a motor vehicle the identity of which is wanted and such endeavour shows that further search would be useless such, in my opinion, is a case where "the identity of the motor vehicle cannot after due inquiry and search be established". In my opinion this is such a case. (at p342)

4. For these reasons the appeal should be allowed. (at p342)

TAYLOR J. I agree that in the exceptional circumstances of the case the learned trial judge, on the facts as he found them to be, should have found for the appellant on the issue of due inquiry and search and, accordingly, I agree that an order as proposed by the Chief Justice should be made. (at p342)

Orders

Appeal allowed with costs. Judgment of the Supreme Court set aside and in lieu thereof enter judgment for the plaintiff and remit cause to the Supreme Court of the Australian Capital Territory to assess the damages.