Turner, Wayne Anthony v Nominal Defendant

[1981] FCA 57

Re: WAYNE ANTHONY TURNER
And: THE NOMINAL DEFENDANT (1981) 51 FLR 342
No. FC 8 of 1980
Unidentified motor vehicle - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Davies(1) and Sheppard(1) JJ.

CATCHWORDS

Unidentified motor vehicle - application to extend time for service of Notice of Claim upon Nominal Defendant - Principles upon which exercise of discretion by trial Judge will be disturbed - Principles to be applied in determining whether applicant has established sufficient cause for grant of application - no new question of principle - Motor Traffic Ordinance 1936-1977 (A.C.T.) s.85.

Appeal - Notice of claim - Application for extension of time for service of notice - Application refused - Appeal - Principles upon which trial judge's decision may be disturbed - Whether trial judge in error - Whether sufficient cause for extending time - Motor Traffic Ordinance 1936 (A.C.T.), s. 85 (5).

Appeal - Application for extension of time for service of notice to nominal defendant - Principles upon which trial judge's decision may be disturbed - Whether trial judge in error - Whether sufficient cause for extending time - Motor Traffic Ordinance 1936 (A.C.T.), s. 85 (5).

HEADNOTE

The appellant was involved in a traffic accident in September 1978 and the vehicle with which he had collided, having failed to stop, could not be identified. More than fourteen months later he notified the nominal defendant of his intention to lodge a claim for damages. He did this shortly after he had learned that the injuries suffered by him as a result of the accident were much more severe that at first he had been led to believe. He applied to the Supreme Court of the Australian Capital Territory for extension of time within which notice might be given to the nominal defendant. The application having been refused, he appealed.

Held: Per curiam allowing the appeal - (1) The trial judge erred in the manner by which he arrived at his decision.

Sophron v. Nominal Defendant (1957), 96 CLR 469, applied.

Hall v. Nominal Defendant (1966), 117 CLR 423, distinguished.

(2) Sufficient cause was shown for an extension of the relevant time.

HEARING

Canberra, 1981, April 13; May 22. #DATE 22:5:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Blackburn C.J.), to the Full Court of the Federal Court of Australia.

T. J. Higgins, for the appellant.

G. J. D. Richardson, for the respondent

Cur. adv. vult.

Solicitors for the appellant: Higgins Faulks & Martin.

Solicitors for the respondent: Abbott Tout Creer & Wilkinson.

E. F. FROHLICH

ORDER

1. The appeal be upheld.

2. The time for the appellant to give notice of intention to make a claim against the Nominal Defendant in respect of an accident which occurred on 25 September 1978 is extended to the expiration of the period 14 days herefrom.

3. The appellant is to pay the respondent's costs of and incidental to the application heard by the Judge of first instance on 22 February 1980 in respect of which judgment was given on 7 March 1980.

4. The respondent is to pay the appellant's costs of and incidental to this appeal.

JUDGE1

This is an appeal by WAYNE ANTHONY TURNER (Appellant) against the dismissal by a Judge of the Supreme Court of the Australian Capital Territory on the 7 March 1980 of an application by the said appellant to extend the time within which Notice of intention to make a claim against THE NOMINAL DEFENDANT (Respondent) pursuant to the provisions of the Motor Traffic Ordinance 1936-1977 s.85 may be given.

Upon the evidence which was placed before the learned Judge at first instance in the form of affidavits by the appellant and his father, the appellant, a boy then aged 16 years, was riding his bicycle in the area of the intersection of Wakefield Avenue and Angas Street, Ainslie, on the 25 September 1978. In an affidavit filed by him, he said -
"As I came to the intersection of Wakefield Avenue with Angas Street, I looked to my right and left and as it was clear I started to ride across the intersection. As I was crossing the intersection a car coming from my left and travelling in a northerly direction in Angas Street hit the back wheel of my bike.

As a result of that collision I was thrown over the handlebars of the bike and landed on the road next to the gutter which caused pain in my back and shoulder."

He gave also some limited description of the car. He said it had no rear number plate and it did not stop. The Appellant said there were no other cars around at the time and he did not think anyone witnessed the accident. Eventually he was able to walk to his home in O'Connor whereupon his father took him at once to the Police Station at Braddon where he made a statement which is in evidence. Information given to the Police included a statement that his bicycle received damage to the rear wheel. He also told them that he had some injury to his back.

The Appellant also said that, with his father and a friend, he went for a drive around the vicinity of the scene of the accident in order to see if they could see the car which had collided with him. On the third and fourth nights after the accident he went with a friend to search the vicinity for the same purpose. These efforts did not reveal any information as to the identity of the vehicle.

After the accident the Appellant was off work for three days, had difficulty in walking but was advised at the Canberra Hospital that there were no injuries to his bones. However, it seems that up to at least January 1980 he has contined to experience low back pain becoming progressively more severe and recently being associated with pain and stiffness in the neck.

On the 22 November 1979, the Appellant saw an orthopaedic surgeon, Dr. Coyle. He was advised that as a result of the accident he might have to have an operation on his back. This possibility is confirmed by a report by Dr. Coyle dated 7 January 1980, also in evidence. In that report the Doctor stated his belief that the outlook for the Appellant's back was not good.

Following receipt of the advice from Dr. Coyle on the 22 November, 1979, the Appellant consulted a Solicitor on the 29 November 1979 whereupon, on the 30 November 1979, a notice of intention to make a claim against the respondent was sent to the respondent. There followed certain correspondence between the parties. Finally, in a letter dated the 8 January 1980 the respondent wrote that unless the Appellant could provide further information which would persuade him to change his mind, he felt he could not justify acceptance of liability. Certain further efforts were then made, viz. an advertisement was inserted in the "Canberra Times" on the 9 January 1980 and a loss assessor was instructed to make enquiries of persons living in the vicinity of the intersection.

No further information has emerged as to the identity of the vehicle. The application for extension of time within which the notice might be given was made on the 1 February 1980.

The learned trial Judge, in his judgment, referred to Sophron v. The Nominal Defendant (1957) 96 C.L.R. 469 at 475 for the principles which would guide him in reaching his decision. Sophron's case is also authority for the proposition that the judgment of a Court which decides to grant or refuse an application of this kind is one into which a measure of discretion must enter. On this, the Court said -
"We ought not to interfere with their conclusion unless we are able to perceive in the reasons upon which their Honours proceeded or may be taken to have proceeded some error or principle, as for example the entry of some inadmissible consideration into the decision of the matter, the failure to take into account a material consideration of possibly decisive importance, or some other misconception of the manner in which the discretionary judgment must be formed. We ought not, as an appellate court, simply to reach a discretionary determination of the matter anew. Our duty is to correct such a judgment of the Supreme Court only if we are satisfied that error occurred in the manner in which it was arrived at."

An initial question is whether error of the kind referred to in Sophron is disclosed in this case. In the judgment of the learned Judge at first instance, he said -
"The case is one of an applicant who suffers an injury, decides at first not to take any action on it, and later changes his mind when the injury is shown to be more serious than he thought."
and later -
"I think that in this case, in order to succeed, the applicant, the explanation for whose delay was that he deliberately refrained from taking action while his injuries seemed less serious, has to satisfy the Court on the balance of probabilities that the efforts of the respondent to discover more facts about the accident would not have had a significantly better chance of success in December 1978 than in November 1979."

The evidence by the Appellant as to the consideration given to his position is referred to in his affidavit of the 1 February 1980 thus -
"14. X-rays were taken of me at the Canberra Hospital and I was advised that there were no injuries to my bones.

15. I first went to see Dr. Coyle on the 22nd day of November 1979 and he has advised me that as a result of this accident I may have to have an operation on my back.

16. At the time that the accident occurred I was 16 years of age and until I went to see my solicitor on the 29 November 1979 I did not know that there was a person called the Nominal Defendant, or that I had a duty to give notice to the Nominal Defendant within three months after an accident with an unidentified motor vehicle, or what else I should do to locate the unidentified motor vehicle. Until I saw Dr. Coyle on 22 November 1979 I had not realised my injuries were likely to leave me with continuing disabilities."

An affidavit was also filed by the applicant's father who said -
"Until I went to see my solicitor on the 29 November 1979 I did not know that there was a person called the Nominal Defendant or that Wayne had a duty to advise the Nominal Defendant within three months after an accident with an unidentified motor vehicle. Also until Wayne saw Dr. Coyle I had not thought his injuries were serious.

The first time I thought it necessary to mention the matter to our solicitor was when Wayne told me that it may be necessary for him to have an operation on his back as a result of the accident."
There was no challenge to this evidence nor was there any cross examination of the Appellant or his father.

In our opinion there is no evidence that the Appellant either decided at first not to take any action or deliberately refrained therefrom but rather, if anything, the evidence shows that he made no decision at all, or any election, or even turned his mind to seeking damages. This is not such a case as is referred to in Hall v. Nominal Defendant (1967) 117 C.L.R. 423 (Hall) at 435 by Barwick C.J. -
"A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue."

In our view, the conclusion reached by his Honour as to the deliberate decision to refrain from taking action, unsupported as it is by any evidence, constitutes an error in the manner in which the learned Judge at first instance arrived at his decision. Since we have come to the conclusion that the learned Judge at first instance was in error in the manner in which he arrived at his decision, it becomes our duty to exercise our own discretion.

In addition to what was said in Sophron concerning the principles which guide a Court in reaching a conclusion in a case of this kind, we refer also to what was said by Barwick C.J. in Hall. He said (pp.434-5) -
"It is important, when considering the propriety of an exercise of the discretion given by s.65A of the Act, to have regard to the general purpose of the section. It is designed to provide a remedy for persons suffering personal injury by the negligent driving or management of an unidentified motor vehicle. Its emphasis and policy is that personal injuries in such circumstances should not go without compensation. By its very nature, however, the action against a nominal defendant given by the Act in such circumstances requires that there be prompt notification of the occurrence out of which the action is to arise and the commencement of proceedings within a stated time. The first provision will enable the nominal defendant to follow up any scent there may be whilst it is warm and the second will assist to prevent the nominal defendant being embarrassed by long outstanding claims. But the ends which the section seeks to serve require that the time limitation shall not stand in the path of justice."

In the instant case, we regard as relevant matters that the appellant was at the time he was injured an infant; he reported the accident forthwith to the Police including telling them that he had been struck by an unidentified vehicle. Further, he said in effect that he did not know the law as to his rights to make a claim for personal injury in such circumstances; and that, anyway, he had no cause to know his injury was at all serious. Up to the time he was informed he had what might be a serious injury, it could not be said that there was any action which a reasonable person in his position should have taken which he did not take. It cannot be expected or in the public interest that every person who is knocked off a bicycle by an unidentified motor vehicle should give notice to the Nominal Defendant. Such notice is relevant only in the context of the making of a claim for damages. Many a person who considers his injuries to be minor, will not turn his mind to recovering compensation until he has reason to know that his injuries are of a more serious nature. That knowledge came to the appellant on 22 November 1979 and he then acted promptly.

We turn to matters of possible prejudice to the respondent. It was conceded before us that further efforts would not have had, in effect, a better chance of success in December 1978 than in November 1979 i.e. of revealing the identity of the vehicle. Counsel for the respondent explicitly stated that he would not submit earlier enquiry would have "brought forward the culprit" or would have revealed the identity of the vehicle.

If we were to accept this concession without reservation, that would put an end to any argument based upon prejudice due to late notice. However, we are prepared to weigh in the balance the matters of prejudice referred to in the judgment appealed from. Having taken those into account, we are satisfied that they by no means outweigh the positive matters relied upon by the Appellant in order to establish sufficient cause.

We are satisfied that sufficient cause, on the uncontradicted evidence was shown for an extension of the relevant time. In the result the appeal should be upheld.