Ugur Zengin v Insurance Commission of Western Australia
[2021] VSCA 80
•30 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0053
| UGUR ZENGIN | Applicant |
| v | |
| INSURANCE COMMISSION OF WESTERN AUSTRALIA | Respondent |
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| JUDGES: | KAYE, EMERTON and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 March 2021 |
| DATE OF JUDGMENT: | 30 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 80 |
| JUDGMENT APPEALED FROM: | [2020] VSC 237 (Moore J) |
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INSURANCE LAW – Appeal – Motor vehicles – Third party insurance – Applicant sustained back injury upon alighting from bus – Applicant filed claim for compensation with respondent – Delay between injury and filing of claim – Whether judge erred in not being satisfied that identity of vehicle could not be ascertained under s 7(3) of Motor Vehicle (Third Party Insurance) Act 1943 (WA) – Whether judge erred by failing to exercise discretion to permit applicant’s claim to proceed despite non-compliance with s 7(3) – Leave to appeal granted – Appeal dismissed – Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 7, 8, 29A, Limitation of Actions Act 1958 s 23A – Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A T Broadfoot QC with Mr A C Dimsey | Robinson Gill |
| For the Respondent | Mr J Ruskin QC with Mr P Lamb | HWL Ebsworth Lawyers |
KAYE JA
EMERTON JA
OSBORN JA:
On 27 October 2015, the applicant suffered an injury to his lower back in the course of his employment on Barrow Island in Western Australia. He suffered that injury when disembarking from a bus which transported him from his accommodation to his workplace on Barrow Island in the early morning of 27 October 2015 (‘the incident’).
In a proceeding commenced on his behalf, the applicant claims that the incident, and his injury, were caused by the negligence of the bus driver. The applicant alleges that he has been unable to identify the bus driver or the bus from which he disembarked on the day of the incident. Accordingly, the proceeding has been brought against the respondent, the Insurance Commission of Western Australia, in reliance on s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (‘the Act’).
That Act provides a scheme for claiming and awarding of damages at common law for personal injuries that have been sustained in accidents involving vehicles registered in Western Australia. Section 7(3) of the Act provides:
Where the driver of a motor vehicle has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle but the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that driver may obtain by action against the Commission the judgment which, in the circumstances, he could have recovered against the driver of the vehicle: Provided that as soon as practicable after the happening of the accident
(a)he made due search and inquiry to ascertain the identity of the vehicle; and
(b)he gave to the Commission notice in writing of the claim and a short statement of the grounds thereof.
Section 29A of the Act was also relevant to the right of the applicant to commence proceedings against the respondent. It provides:
Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may—
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
After the commencement of the current proceedings, the parties identified three questions for preliminary determination pursuant to Order 47.04 of Chapter 1 of the Supreme Court (General Civil Procedure) Rule 2015, namely:
(a)Whether the applicant’s claimed injuries were ‘directly caused by the driving’ of the bus?
(b)Whether the identity of the bus driver involved in the incident on 27 October 2015 ‘cannot be ascertained’? The parties agreed that this involved an enquiry into whether the applicant and/or his representatives had made ‘due search and inquiry to ascertain the identity of the vehicle’, as required by s 7(3)(a).
(c)Whether, given that the applicant conceded he had not satisfied s 7(3)(b) concerning the giving of notice to the respondent, a discretion granted by s 29A of the Act to relieve him of the effect of that failure had been enlivened and, if so, ought be exercised in the applicant’s favour.
Having received evidence and heard argument relating to those questions, the judge, in a reserved decision, provided answers to the questions to the following effect:
(a) The applicant’s claimed injuries were ‘directly caused by the driving’ of the bus.
(b) The applicant and his solicitors had not made ‘due search and inquiry’, and, consequently, the applicant had not satisfied the Court that the identity of the bus could not be ascertained within the meaning of s 7(3) of the Act.
(c) The discretion in s 29A of the Act had been enlivened as the failure of the applicant to give notice to the respondent had been occasioned by ‘inadvertence’. However, in view of the prejudice caused to the respondent by the delay, the discretion under s 29A should not be exercised in the applicant’s favour.[1]
[1]Zengin v Insurance Commission of Western Australia [2020] VSC 237 (‘Reasons’).
Accordingly, the judge made the following orders:
1.The preliminary questions arising from the Defence of the Defendant dated 31 August 2018 be answered as follows:
(a)Were the plaintiff’s claimed injuries ‘directly caused by the driving of a motor vehicle’, within the meaning of s 7(3) Motor Vehicle (Third Party Insurance) Act 1943 (WA) (‘the Act’)? — Yes.
(b)Has the plaintiff satisfied the Court that the identity of the motor vehicle involved in the incident on 27 October 2015 ‘cannot be ascertained’, within the meaning of s 7(3) of the Act? — No.
(c)As to the discretion set out in s 29A of the Act:
(i)Is such discretion enlivened in the circumstances of this case? — Yes.
(ii)If yes to (i), should such discretion be exercised in the plaintiff’s favour? — No.
2. Judgment for the defendant.
3.The plaintiff pay the defendant’s costs of the proceeding, including reserved costs, on a standard basis, to be determined by the Costs Court in default of agreement.
The applicant seeks leave to appeal on the following grounds:
(1)The trial judge erred in law in his consideration of s 7(3) of the Act, by assessing the requirement of whether, ‘the identity of the vehicle cannot be ascertained, and having regard to whether the applicant made, ‘due search and inquiry to ascertain the identity of the vehicle’, against the evidence and the weight of the evidence.
(2)The trial judge erred in law by failing to have any or any sufficient regard to evidence before him relevant to an assessment of whether to exercise his discretion under s 29A of the Act in favour of, or against the applicant.
Background circumstances
The applicant commenced employment in June 2015 with Kentz Pty Ltd (‘Kentz’) as an instrument technician. As he lived in Victoria, he was engaged on a ‘fly in, fly out’ basis on the Chevron-Gorgon LNG Project on Barrow Island in Western Australia. The project was undertaken by Kellog Joint Venture Gorgon (‘the joint venturer’) as a contractor to Chevron Australia Pty Ltd (‘Chevron’). Kentz was engaged as a subcontractor to the joint venturer.
At about 5:30 am on 27 October 2015, the applicant boarded a bus which was close to his accommodation on Barrow Island to transport him, and other workers on the project, to his workplace. The bus was a medium to large vehicle, capable of carrying between 50 and 70 passengers. It was one of many buses operated by various contractors and subcontractors for the purpose of transporting workers to their work sites on Barrow Island. The joint venturer had purchased a fleet of buses which it had allocated to the contractors and subcontractors. Some of the contractors had also purchased or provided buses for use on Barrow Island.
At about 5:45 am the bus, which was carrying the applicant, stopped at a position which was shortly before the designated bus stop at which the applicant was to alight. The bus was unable to stop at the bus stop, because another bus was already occupying that position, and other workers were disembarking from it. After the applicant’s bus became stationary, the driver operated the controls to open the door. The applicant and other passengers then commenced to disembark from it. As he did so, the applicant was unable to see the ground surface because it was before dawn and very dark. As a result, the applicant stepped further than he had anticipated onto uneven ground, which caused him to stumble. As he did so, he experienced immediate pain in his lower back and altered sensation in his left leg.
The applicant reported the incident to his supervisor on the same day at 6:00 am. He then attended the medical facilities on the site, where he was examined by a doctor and given the rest of the day off. On the next day, the pain in his back had become worse. He was again examined at the medical facilities, and arrangements were made for him to fly to Perth for further treatment.
On 30 October 2015, the applicant completed a Workers’ Compensation Claim Form which was served on his employer. The form stated that the applicant had suffered injury to his back, left leg and neck as a result of the incident which occurred while he was ‘getting off the bus’. The claim was accepted and the applicant subsequently received statutory workers’ compensation benefits.
After his return to Melbourne, the applicant underwent physiotherapy treatment for several months. That treatment produced only a modest improvement in the symptoms in his lower back and leg. In June 2016, the applicant experienced a significant increase in pain. He attended the Emergency Department at the Northern Hospital and was then admitted to the Epworth Hospital. The surgeon who attended him advised him that he should undergo surgery. The applicant was reluctant to do so and persisted with conservative treatment involving a rehabilitation program at the Dorset Hospital.
In the period that followed, the applicant suffered further flare ups of his back injury, which were not sufficiently relieved by a nerve block injection. In early 2017, he was again reviewed by the surgeon who had recommended surgery. On that occasion the applicant accepted the surgeon’s advice, and on 29 March 2017, he underwent decompression and lumbar fusion surgery.
In May 2017, the applicant first became aware, following a conversation with a friend who was a lawyer, that, in addition to his rights under the Western Australian workers’ compensation legislation, he might also have a right to make a claim under the motor vehicle compensation legislation of that State. Until that time he had believed that his rights were restricted to those provided by the workers’ compensation legislation.
Accordingly, in May 2017, the applicant consulted his present solicitor. In July 2017 his solicitor Ms Danielle Meyer, requested a copy of the applicant’s WorkCover file.
On 6 September 2017, the applicant lodged an ‘Online Crash Report Form’ with the respondent. On 13 September, the applicant’s solicitor forwarded a letter to the respondent requesting to be provided with a notice of intention to make a claim.
On 13 September, the respondent contacted the applicant and requested information as to how the accident occurred. On the same date, the respondent emailed the applicant’s employer requesting all information concerning the incident.
On 18 September, and again on 26 October 2017, the respondent sent an email to the workers’ compensation insurer requesting that it be provided with all documentation concerning the applicant’s workers’ compensation claim.
On 10 November 2017, the respondent issued a liability determination that it had insufficient information to determine the fault on the part of the bus driver. The respondent requested that the applicant’s solicitor provide the registration number of the vehicle and the name of the driver involved in the incident.
On 28 November 2017, the respondent’s solicitor wrote a letter to the workers’ compensation insurer requesting details of the registration of the bus involved in the incident and the name of the bus driver. On the following day, the applicant’s solicitor made the same request to the applicant’s employer Kentz. She did not, subsequently, receive any reply to that request. There was no evidence that she took any steps to follow up the request that she had made to the workers’ compensation insurer and Kentz.
On 29 November 2017, the applicant’s solicitor wrote a letter to the respondent informing it of the steps that she had taken to identify the vehicle registration number and the name of the driver.
The writ in the present proceeding was issued on 2 May 2018 and a defence was delivered on behalf of the respondent on 27 July 2018.
On 2 May 2019, the respondent’s solicitor served a subpoena on the workers’ compensation insurer requesting all documentation relating to the applicant’s workers’ compensation claim. Subsequently, on 8 August 2019, the applicant’s solicitor also served subpoenas on Chevron and on the Shire of Ashburton, which was the local municipality that was responsible for Barrow Island, in an attempt to ascertain the identity of the bus driver and the registration number of the bus involved in the incident. Those entities provided documents in answer to the subpoenas on 6 September and 13 September 2019 respectively.
The documents produced by Chevon included a document that specified that ‘all vehicles are to be marked on both sides and the rear with an easily identifiable number and the name of the company by which the vehicle is operated’. They also included a second document entitled ‘Barrow Island Commuting Plan’, which stated that the joint venturer had purchased and made available to contractors a fleet of buses, including 41 fifty seater buses, to be used to transport workers.
The respondent subsequently contacted Chevon and was informed that buses, that were used to transport workers, were not registered and were not usually driven by Chevron employees, but rather by employees of contractors and subcontractors.
The evidence on the trial of the preliminary issues
The evidence, on the preliminary issues, consisted of two affidavits by the applicant, an affidavit by his instructing solicitor Ms Meyer, and two affidavits by the respondent’s solicitor Mr Michael Nagle. The applicant and Ms Meyer were each cross-examined on the hearing of the trial of the preliminary issues.
In his first affidavit, the applicant stated that the first time, that he realised that he might have a right to claim compensation under the Motor Injury Insurance Scheme conducted by the respondent, was when he sought legal advice from his present solicitors in May 2017. He said that shortly before consulting his solicitors, he had met a childhood friend at a family function. In the course of a conversation about the applicant’s injury, the friend, who is a lawyer, told him that he might have a ‘case’ and that he should seek legal advice.
In his second affidavit, the applicant stated that in view of the transient nature of his work, he did not know many people well and he had not stayed in touch with them. The one colleague with whom he had remained in contact from that period was not on the bus on the day of the accident. In cross-examination, the applicant said that he did not take a note of the number of the bus or of any distinguishing feature of it. He said that he did not do so because at the time his back was sore and he gave priority to obtaining medical attention. He agreed that he did not make any further inquiries on that day or on the days that followed as to the identity of the bus driver or as to the identity of the employer of the bus driver. He also said that he could not remember what uniform the bus driver was wearing. He said it was dark and he could not remember that fact. He also said that the passengers on the bus would have been a ‘mix’ of fellow employees of Kentz and other workers.
Reasons of the trial judge
In the first section of his reasons, the judge addressed, and gave an affirmative answer to, the question whether the applicant’s claimed injuries were directly caused by the driving of the bus.[2] The respondent has not taken issue with the judge’s conclusion on that question.
[2]Ibid [9]–[63].
The judge then turned to the two remaining questions, namely, first, whether the identity of the bus could not be ascertained, and, secondly, whether the judge should exercise the discretion, under s 29A of the Act, to relieve the applicant of the effect of any failure by him to give notice of his claim in accordance with s 7(3)(b) of the Act.
In respect of the first question, the judge noted that, notwithstanding the production on subpoena of the document entitled ‘Barrow Island Commuting Plan’, the applicant’s solicitor had not made any inquiries of the joint venturer as to whether it had any information relating to the incident involving the applicant, including whether the joint venturer owned the bus that was involved in that incident. His Honour noted that the applicant’s solicitor had agreed, in cross-examination, that she could have made those inquiries and that it remained open for her to do so.[3]
[3]Ibid [82].
The judge accepted that, in the circumstances, the prospects of identifying the vehicle that was involved in the incident on 27 October 2015 are ‘remote’.[4] However, his Honour considered that two lines of inquiry, which could be directed to ascertaining that fact, remained incomplete.[5] The first such inquiry arose from the document produced on subpoena by Chevron that revealed that the joint venturer had purchased a fleet of buses for the purpose of transporting workers from their accommodation to the work site. The judge noted that notwithstanding the production of that document, the applicant’s solicitor had not made any inquiries of the joint venturer to determine whether it had any information relating to the incident, including whether it owned the bus.[6] Secondly, the judge noted that the applicant’s solicitor had not followed up on the request, that she made to Kentz on 29 November 2017, to provide her with details of the registration number of the bus that had been involved in the incident, and the name of the bus driver.[7]
[4]Ibid [86].
[5]Ibid [87].
[6]Ibid [88].
[7]Ibid [89].
The judge concluded on that issue:
As I have explained, the making of the above requests and enquiries were important steps which could have been taken to determine whether the identity of the vehicle involved in the incident could be ascertained. They are enquiries which would not have been burdensome to make. They are reasonable steps which, in the circumstances of this case, were required to be undertaken to ensure that ‘due search and inquiry’ had been made to ascertain the identity of the vehicle involved in the incident. While those steps remain outstanding, I am not satisfied on the balance of probabilities
that the vehicle which transported Mr Zengin on the morning of 27 October 2015 cannot be ascertained.[8]
[8]Ibid [90].
In view of that conclusion, the judge considered that it was strictly unnecessary to determine the remaining issue, namely, whether to exercise the discretion under s 29A of the Act to relieve the applicant of his failure to satisfy the requirement specified by s 7(3)(b).[9] That provision required the applicant to give written notice to the respondent of the claim together with a short statement of the grounds of it ‘as soon as practicable after the happening of the accident’. Although it was unnecessary for his Honour to do so, in deference to the submissions advanced by the parties, he proceeded to express his conclusions on the issue.
[9]Ibid [91].
In considering that question, the judge noted that the applicant had not been aware of his right to claim compensation under the Act until he first sought legal advice in about May 2017. Accordingly, the applicant’s failure to give notice could be properly characterised as being occasioned by ‘inadvertence’ within the ordinary meaning of that term in s 29A.[10] His Honour further considered that, in the circumstances of the case, the applicant’s ‘inadvertence’, about his rights and obligations under the Act, was reasonably based.[11] Accordingly, his Honour concluded that the Court’s discretion under s 29A was engaged, because his failure to give the requisite notice to the respondent was occasioned by inadvertence or by reasonable cause.[12]
[10]Ibid [102].
[11]Ibid [104].
[12]Ibid [106].
On the other hand, the judge considered that the respondent would be subject to prejudice if he exercised the discretion under s 29A to relieve the applicant of his failure to provide notice in accordance with s 7(3)(b) of the Act. In particular, because the respondent was not able to undertake inquiries and due searches as soon as practicable after the incident, it has been unable to identify the vehicle and the driver involved in the incident.[13] In addition, the judge considered that the applicant’s failure to report the incident to the respondent until September 2017, and his failure to undertake due searches to identify the bus or the driver, had denied the respondent a meaningful opportunity to take prompt steps to do so on its own behalf. It had also denied the respondent the meaningful opportunity to seek statutory recovery from the owner or driver of the vehicle, and to verify the circumstances of the incident.[14]
[13]Ibid [111].
[14]Ibid [112].
The judge therefore concluded that the prejudice, relied on by the respondent, was real and substantial. In particular, if notice had been given to the respondent as soon as practicable after the happening of the incident, his Honour considered that there would have been a ‘substantially greater prospect’ of identifying the bus.[15]
[15]Ibid [114].
The judge further considered that there had been very lengthy delays associated with the commencement and prosecution of the applicant’s claim after he had consulted solicitors.[16] His Honour considered that those delays had exacerbated the prejudice to the respondent which had resulted from the applicant’s initial failure to provide the requisite notice.[17] Accordingly, the judge concluded that it was not appropriate to excuse the applicant from the failure to comply with the proviso to s 7(3)(b) of the Act.[18]
[16]Ibid [115].
[17]Ibid [116].
[18]Ibid [117].
Ground 1 — Submissions
Ground 1 of the proposed grounds of appeal, and the submissions contained in the applicant’s written case, are addressed to the conclusion by the judge that, as the applicant had not undertaken ‘due search and inquiry’ for the identity of the vehicle, he was not satisfied on the balance of probabilities that the vehicle which transported the applicant on the morning of the accident could not be ascertained.[19] In oral submissions, counsel for the applicant did not address ground 1. Instead, counsel submitted that that conclusion by the judge did not preclude his Honour exercising the discretion under s 29A of the Act in favour of the applicant so as to relieve the applicant from non-compliance with the requirements of s 7(3). However, counsel did not expressly abandon ground 1, or the arguments in the written case in support of that ground. Accordingly, it is necessary to address those arguments.
[19]Ibid [90].
In the applicant’s written case, it was noted that the judge based his decision, on the application of s 7(3), on the failure by the applicant’s solicitors to make inquiries of the joint venturer as to the identity of the vehicle. It was submitted that in doing so, the judge failed to take into account evidence that: the applicant had no knowledge of his potential rights against the respondent, and therefore he had no reason to make a record of the incident or identify the bus; before Chevron received the subpoena addressed to it in August 2019, it had no knowledge of the incident; in addition to Chevron’s fleet of 64 buses, there were also an unidentified number of contractors’ buses on Barrow Island; as the applicant had no reason to identify the bus, there was no reason why the joint venturer might have done so; and there was no reason to consider that Chevron, in answer to the subpoena, had failed to disclose any relevant information concerning the identity of the bus.
In the applicant’s written case, it was further submitted that the conclusion by the judge, as to the relevance of the failure by the applicant’s solicitors to further pursue Kentz to provide details of the identity of the bus, was contrary to the evidence. In particular, the applicant referred to evidence that: the respondent had also made unsuccessful efforts to procure that information from Kentz; there was a real prospect that the driver of the bus might have been employed by a subcontractor rather than by Kentz; a number of the buses used on Barrow Island were owned by different entities; and, as the applicant had no reason to record the identity of the bus at the time, it would follow that Kentz also would have had no reason to do so.
In those circumstances, it was submitted that the judge erred in concluding that there had not been adequate search and inquiry to ascertain the identity of the vehicle, so that it could not be concluded that the identity of the vehicle could not be ascertained. It was further submitted that the judge’s finding, to that effect, was inconsistent with his Honour’s conclusion, under s 29A of the Act, that the respondent had suffered prejudice because it could not now identify the vehicle in question.
In response, counsel for the respondent submitted that the judge had sound reasons to conclude that the applicant, and his solicitors, had not undertaken due search and inquiry to ascertain the identity of the vehicle from which the applicant alighted when he was injured. Counsel noted that, in cross-examination, the applicant accepted that he could have, but did not, make a note of the number or distinguishing features of the bus. Counsel further noted that after the applicant’s solicitor wrote to the WorkCover insurer and Kentz in late November 2017 requesting details of the bus and its driver, the solicitors could have, but did not, follow up that request. Further, despite the information produced on subpoena that the joint venturer had purchased a fleet of buses for transporting workers on Barrow Island, the applicant’s solicitors did not make any inquiries of the joint venturer as to the identity of the bus that was involved in the applicant’s accident. Counsel submitted that the fact that other subcontractors also drove buses on the island, did not displace the need for the applicant’s solicitors to make relevant inquiries of Kentz or the joint venturer. Thus, it was submitted, while those steps remained outstanding, the judge was correct to conclude that he was not satisfied that the identity of the bus could not be ascertained.
Counsel for the respondent further submitted that the judge had a strong evidentiary basis upon which to conclude that he was not satisfied that the identity of the vehicle could not be ascertained. In support of that submission, counsel referred to the document entitled ‘Barrow Island Commuting Plan’, that was produced by Chevron in response to the subpoena served on it in 2019. That plan provided that buses would travel from the accommodation camps to the temporary construction facilities to transport workers to their place of work. It further provided that each bus and its driver would be allocated to a specific temporary construction facility, and that all workers working at that worksite would use the bus. The plan provided for a bus schedule which would include a number of items of information, including: the bus stop number each contractor should use; the buses that each contractor would be provided with and would be responsible for; and the departure times for the bus in the morning and evening. The document also specified that the buses would be marked with the morning and evening destination and that each bus would carry a sign to that effect.
Ground 1 — Analysis and conclusion
Sections 7, 8 and 29A of the Act comprise a suite of provisions that are designed to provide rights of recovery to persons who have been injured as a result of the driving of a motor vehicle in circumstances in which, for some reason, the injured party is unable to obtain relief or recover damages against the person responsible for his or her injury.
As part of those provisions, s 7(3) is directed to the situation in which a person has suffered injury by reason of the driving of a motor vehicle by another person in circumstances in which the identity of the other vehicle ‘cannot be ascertained’. The most common circumstance in which s 7(3) would apply is where the vehicle, which has caused the injury, has departed from the scene of the accident before its identity can be ascertained. However, s 7(3) is not confined to such a circumstance, and it also covers cases in which, for any other reason, it has not been possible to ascertain the identity of the vehicle (or its driver).
There are three specific preconditions to the application of s 7(3) in such a case. First, it must be demonstrated that the identity of the vehicle ‘cannot be ascertained’. If that circumstance cannot be established, then s 7(3) does not apply. The two other preconditions are specified in subparagraphs (a) and (b) to the section. They require that ‘as soon as practicable after the happening of the accident’ the injured party made ‘due search and inquiry’ to ascertain the identity of the vehicle, and gave notice in writing to the respondent of the claim and a short statement of the grounds of that claim.
The requirement, that the injured party has made ‘due search and inquiry’ to ascertain the identity of the vehicle, informs the content of the requirement that the identity of the vehicle ‘cannot be ascertained’. In particular, the requirement in s 7(3)(a), that the injured party has made ‘due search and inquiry,’ may be contrasted with the more stringent requirement, in s 8(5)(c) that the owner or driver of a vehicle responsible for an accident ‘cannot after strict inquiry and search be found’. According to its ordinary usage, the adjective ‘due’ envisages inquiries which are appropriate and which ought to be made in the circumstances of the case. In other words, it is not a requirement that the injured party undertake searches and inquiries which are entirely lacking in feasibility or practicality.
Although s 7(3) requires that such search and inquiry be made ‘as soon as practicable after the happening of the accident’, the condition, that the identity of the vehicle ‘cannot be ascertained’, is expressed in the present tense. Thus, the injured party must have made due search and inquiry as soon as practicable after the accident, and it must be demonstrated that the identity of the vehicle, which caused the injury (or death), has not been, and cannot be, ascertained.
In the present case, the judge concluded that although the prospects (presently) of identifying the vehicle involved in the incident on 27 October 2015 are remote, it had not been demonstrated that, on the balance of probabilities, the vehicle ‘cannot’ be ascertained.[20] The judge reached that conclusion because two potential lines of inquiry, which he identified, remained incomplete. As mentioned, the first such inquiry should have been made of the joint venturer to ascertain whether it had any information relating to the incident or the identity of the bus.[21] The second such inquiry required the applicant’s solicitor to follow up the request that she made of Kentz on 29 November 2017 to provide details of the identity of the bus and the driver.[22]
[20]Ibid [86].
[21]Ibid [88].
[22]Ibid [89].
In the written case (and in oral submissions), the applicant did not put in issue the judge’s conclusion that those two lines of inquiry might be characterised as inquiries that the applicant or his solicitors ought to have pursued. Rather, the applicant, in his written case, put in issue the finding by the judge that, while the prospects of identifying the vehicle involved in the incident, from such inquiries, might be remote, nevertheless, in the absence of those inquiries, it could not be concluded that the identity of the vehicle could not be ascertained.
The first line of inquiry — directed to the joint venturer — arises from the content of the ‘Barrow Island Commuting Plan’ that was produced by Chevron in response to the subpoena served on it by the applicant’s solicitors on 8 August 2019. As counsel for the respondent explained, that plan provided for the allocation of each bus and its driver to a particular temporary construction facility, and for the compilation of a bus schedule which would contain a number of relevant items of information. That information included the bus that each contractor would be provided with and responsible for, the departure times for each such bus, and the bus stop number which each contractor should use.
The documents produced by Chevron do not, however, themselves identify the bus or the driver of the bus, that was involved in the incident in which the applicant was injured on 27 October 2015. Further, as pointed out in the applicant’s written case, it would appear that the respondent has not been able to identify the bus or its driver, notwithstanding that it has had access to the documents produced by Chevron on subpoena.
However, that consideration does not of itself resolve the question whether the judge was correct to conclude that the applicant had not established on the balance of probabilities that further such inquiries of Chevron, or inquiries based on the subpoenaed documents produced by Chevron, would not have enabled the identification of the bus that was involved in the incident. It is not clear what steps the respondent has or has not taken to further pursue such inquiries. Under s 7(3), the onus is and was on the applicant to make such due searches and inquiry. The fact that the respondent could have made such inquiries, and that it has not ascertained the identity of the bus, does not necessarily mean that if the applicant made due inquiry of the joint venturer, it would not thereby ascertain the identity of the bus. In those circumstances, the judge was correct to consider that in the absence of such inquiry undertaken by or on behalf of the applicant, it could not be concluded that the identity of the vehicle, involved in the incident, could not be ascertained.
The other line of inquiry, which the judge considered ought to have been made, but had not been made, on behalf of the applicant, was one directed to his former employer, Kentz.
The judge was clearly correct to consider that such an inquiry was an ‘obvious and important step’ to seek the identity of the vehicle involved in the incident.[23] The applicant was injured on his way to work. As a result of the incident, he was unable to work on that date, or thereafter. On the next day, because of the injury that he sustained, he was removed from Barrow Island. On 30 October, three days after the incident, the applicant served a Workers Compensation Claim Form on his employer. As a result, the applicant received entitlements under the relevant workers’ compensation legislation. In those circumstances, it is feasible that, at the time, Kentz, or the workers’ compensation insurer, might have made some inquiries to verify and ascertain the circumstances of the accident in which the applicant was injured. Further, it is quite possible that, in undertaking those inquiries, Kentz might have ascertained the identity of the vehicle involved in the incident.
[23]Ibid [89].
The applicant’s solicitor wrote to the workers’ compensation insurer on 28 November 2017 requesting details of the registration of the bus involved in the incident and the name of the driver. On 29 November, she made the same request of Kentz. However, she did not receive any reply to those requests, and, in the period that followed, she did not take any step to pursue that line of inquiry. In those circumstances, the judge was entitled to conclude that, as such a line of inquiry constituted a reasonable or practicable step which was required to be undertaken to ensure that ‘due search and inquiry’ had been made, therefore it could not be concluded that the identity of the vehicle involved in the accident could not be ascertained.
The fact, that the respondent has not been able to elicit from the workers’ compensation insurer any information that would assist it to identify the bus or its driver, did not preclude the judge concluding that, in view of the failure of the applicant to undertake such inquiries, he was not satisfied that the identity of the bus could not be ascertained. Section 7(3) imposed an onus of proof on the applicant to establish, first, that he had taken all practicable steps by way of due search and inquiry to ascertain the identity of the vehicle, and, secondly, that having carried out those steps, he had not been able to ascertain its identity. The fact that the respondent has been unable to ascertain that fact for itself does not, necessarily, entail the conclusion that, if the applicant had taken, or were to take, appropriate steps, he could not have the ascertained identity of the vehicle.
For those reasons, we conclude that ground 1 of the proposed grounds of appeal has not been established.
Ground 2 — Submissions
As we have mentioned, in the course of his oral submissions, counsel for the applicant did not address any argument in support of ground 1, or in support of the contentions in the written case that supported that ground. Rather, counsel submitted, in support of ground 2, that the conclusion by the judge, that he was not satisfied that the identity of the bus could not be ascertained, did not preclude the judge exercising his discretion under s 29A in favour of the applicant. In making that submission, counsel placed considerable weight on the opening words of the section, that provided for the existence of such a discretion ‘notwithstanding the provisions of s 7(2) and (3) …’. In support of that submission, counsel noted that s 7(3) and s 29A are remedial provisions that are intended to enable a person who has been injured in a motor vehicle accident to claim damages notwithstanding that it has not been possible to identify an appropriate defendant to such a proceeding. In those circumstances, counsel, relying on the observation by Jackson J in Blum v Motor Vehicle Insurance Trust,[24] submitted that s 29A should be construed and applied benevolently in favour of an injured person so as to accord with that legislative intention.
[24][1966] WAR 121, 127.
Counsel for the applicant further submitted that the judge erred in the exercise of the discretion under s 29A not to relieve the applicant of the consequences of his failure to give notice to the respondent or to make due search and inquiry. Counsel noted that the judge accepted that it was reasonable for the applicant not to have undertaken any inquiries concerning the identity of the bus until he became aware of his rights to commence proceedings, under the Act, in May 2017. Yet, counsel submitted, the judge, in considering the question of prejudice to the respondent, took into account that if the applicant had given notice to the respondent as soon as practicable after the incident, there would have been a substantially greater prospect of identifying the bus which would have enabled the respondent to bring a claim for contribution or indemnity against its owner. Counsel submitted that that consideration, by the judge, was inconsistent with his Honour’s finding that it was reasonable for the applicant not to have taken any steps to ascertain the identity of the bus until he sought and obtained legal advice in May 2017.
Counsel for the applicant further submitted that the judge erred by taking into account, as a matter of prejudice occasioned to the respondent, that if the respondent had been given prompt notice of the accident, it might have ascertained that the bus was not registered, in which event the respondent may not have been liable in respect of the accident. Counsel submitted that that consideration by the judge was erroneous, because, if the bus was not registered, the respondent would have been liable in respect of the injury to the applicant pursuant to s 8(5) of the Act.
Counsel for the applicant further submitted that the judge erred in taking into account the delay, and the effect of delay, on the part of the applicant’s solicitor. It was submitted that, consistent with the principles contained in cases concerned with the extension of time under the Limitation of Actions Act 1958, ordinarily delay on behalf of a plaintiff’s solicitor should not be imputed to that plaintiff. It was submitted that the same principle should apply in the present case.
Finally, counsel submitted that the judge erred in concluding that the delay, by the applicant’s solicitor after May 2017, had exacerbated the prejudice that had resulted from the applicant’s failure to provide to the respondent the requisite notice under s 7(3)(b). In particular, it was contended that there was no evidence that if the applicant’s advisers had acted more expeditiously, some evidence might then have been available which has been lost by reason of that delay.
In response, counsel for the respondent submitted that, by its express terms, the discretion provided by s 29A of the Act is only engaged if, under s 7(3), it is first concluded that the identity of the vehicle involved in the accident cannot be ascertained. In that respect, counsel submitted that s 29A is directed to ‘forgiving’ a failure by a plaintiff either to make due search and inquiry or to give notice as required by subparagraphs (a) and (b) of s 7(3). Accordingly, it was submitted, in the present case the application of the discretion under s 29A was precluded by the judge’s conclusion that he could not be satisfied that the identity of the bus could not be ascertained.
Counsel noted that where it is concluded that the identity of the vehicle cannot be ascertained, the discretion under s 29A operates on two levels. First, the discretion must be ‘engaged’ by a relevant finding by the Court that the failure of the plaintiff (to give notice or make due search) was occasioned by one of the circumstances specified in s 29A, or alternatively did not prejudice the respondent in its defence of the proceeding. Secondly, it was submitted, if the discretion is engaged in one of those respects, the decision by a judge whether to relieve the plaintiff of the relevant failure, is a discretionary conclusion to which the principles in House v The King[25] and in Hunt v Holcombe[26] apply.
[25](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[26][2018] VSCA 248, [51] (Beach, Kaye and Niall JJA).
Counsel submitted that the judge was correct to take into account delay by the applicant’s solicitors, and the effect of that delay on the respondent, in the exercise of the discretion. It was submitted that it was contemplated, under s 7(3) and s 29A, that the relevant delay includes delay on the part of the applicant or his or her advisers. Counsel noted that in his affidavit, Mr Nagle had identified a number of respects in which the respondent had been prejudiced by reason of the failure of the applicant to give prompt notice to it of its claim under s 7(3) of the Act. Mr Nagle was not cross-examined. In his reasons,[27] the judge summarised the evidence of Mr Nagle as to the prejudice caused by the delay. That prejudice included the inability of the respondent to investigate: whether the accident the subject of the claim occurred; whether the respondent might have a statutory right of recovery against an indemnified driver; and whether any injuries were sustained by the respondent as a result of the accident. Thus, it was submitted, the judge was correct to conclude that to the extent that those investigations may not now be able to be carried out, the respondent would be prejudiced in its ability to defend any claim brought by the applicant.[28]
[27]Reasons [109].
[28]Ibid [110].
Counsel further submitted that the judge was entitled to infer that the prejudice occasioned to the respondent by the lack of notice from the applicant was exacerbated by the delay by the applicant’s solicitors in the commencement and prosecution of the applicant’s claim. In that respect, he relied on the proposition, recognised by the High Court in Brisbane South Regional Health Authority v Taylor,[29] that in a case of undue delay, it may be inferred that the quality of the memories of witnesses may be adversely affected.
[29](1996) 186 CLR 541; [1996] HCA 25.
Accordingly, counsel for the respondent submitted, it has not been demonstrated that the judge erred in determining not to exercise his discretion under s 29A to excuse the applicant from his failure to comply with the proviso in s 7(3)(b) of the Act.
Ground 2 — Analysis and conclusion
The submissions made on behalf of the applicant, under ground 2, thus raise two questions. The first question is whether the judge was correct to consider that his conclusion, that the applicant had not demonstrated that the identity of the bus could not be ascertained, precluded the application of s 29A of the Act to the proceeding brought on the applicant’s behalf. The second question is whether the judge erred in concluding that, if s 29A did apply, it was not appropriate, in the exercise of the discretion under s 29A, to excuse the applicant from his failure to comply with the condition specified in s 7(3)(b) of the Act.
The first submission cannot be sustained. The judge was correct to consider that, in view of the conclusion he reached that the applicant had not established that the identity of the vehicle could not be ascertained, the applicant was unable to rely on s 29A of the Act to entitle him to maintain his claim against the respondent.
As we have discussed under ground 1, s 7(3) of the Act, by its terms, specifies three conditions which must be satisfied to enable an injured party to maintain an action against the respondent. The first condition is that the identity of the vehicle ‘cannot be ascertained’. The second and third conditions are those specified in subparagraphs (a) and (b), namely, that as soon as practicable after the happening of the accident, the applicant made ‘due search and inquiry’ to ascertain the identity of the vehicle, and the applicant gave notice in writing to the respondent of the claim and a short statement of the grounds of the claim.
Section 29A, by its terms, provides a discretion for a court to relieve an injured person from a failure to satisfy the second and third such conditions, namely, those contained in ss 7(3)(a) and (b). That is evident from the terms in which s 29A is expressed. Section 29A provides that where the court considers that ‘the failure to give notice, or the defect in any notice’, or ‘the failure to make due search and inquiry’ was occasioned by one of the specified circumstances (mistake, inadvertence or any other reasonable cause), or did not materially prejudice the respondent, the court may (where the action has been commenced) relieve the plaintiff of the effect of ‘that failure or defect’, or (where the action is to be brought) grant leave to proceed notwithstanding ‘that failure or defect’. The phrase ‘that failure or defect’ is a specific reference to the two failures or defects mentioned in the body of s 29A: first, the failure to give notice or a defect in any notice; and, second, the failure to make due search and inquiry. Those two circumstances replicate, precisely, the two conditions specified in ss 7(3)(a) and (b).
Thus, the relief provided by s 29A is expressly directed to a case in which the injured party has either failed to give notice (or given a defective notice), or has failed to make due search and inquiry. The specification of those two circumstances necessarily precludes any implication that s 29A also applies in a case in which it is not demonstrated that the identity of the vehicle cannot be ascertained.
In that way, s 29A is designed to provide relief, in an appropriate case, where the identity of the vehicle involved in the accident cannot be ascertained, and where the injured party has failed, as soon as practicable after the happening of the accident, either to make due search and inquiry or to give the requisite notice of the claim to the respondent. That construction of s 29A is clearly consonant with the intention and purpose of the provisions contained in s 7 and s 8 of the Act. As we have mentioned, those provisions are designed to provide a right of claim by an injured person in circumstances in which an appropriate defendant to that claim cannot be properly ascertained. One of those circumstances — covered by s 7(3) — is where the identity of a vehicle involved in the accident cannot be ascertained. Section 29A is not designed or directed to dilute or alter that fundamental precondition to the right of an injured party to recovery. Rather, the precondition is the very basis of the cause of action against the respondent provided by s 7(3).
For those reasons, contrary to the submissions made on behalf of the applicant, the judge was correct to consider that, in view of his finding that it had not been established that the identity of the bus could not be identified, s 29A could not be relied on by the applicant.
It follows that, contrary to the submissions made on behalf of the applicant, ground 2 of the application for leave to appeal is necessarily dependent on the success of the applicant under ground 1. In view of our conclusion under ground 1, it is, strictly speaking, not necessary for us to further consider the submissions advanced under ground 2. Nevertheless, it is appropriate in the circumstances that we do so.
In effect, the judge concluded that if he had found that it was not possible to ascertain the identity of the bus involved in the accident, nevertheless it was not an appropriate case in which to relieve the applicant, under s 29A(a) of the Act, of the effect of his failure to give appropriate notice in writing of the claim to the respondent as required by s 7(3)(b).
That conclusion by the judge was necessarily discretionary. Accordingly, in order to establish that the judge erred in reaching that conclusion, the applicant must either identify a material error by the judge in the exercise of the discretion, or alternatively demonstrate that on the facts the conclusion was unreasonable or plainly unjust.[30] The submissions advanced on behalf of the applicant relied on a number of specific errors which it was submitted the judge made in reaching his conclusion that s 29A should not apply.
[30]House (1936) 55 CLR 499, 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).
First, it was submitted that the judge erred in considering the question of prejudice to the respondent, by taking into account that if the applicant had given notice to the respondent as soon as practicable after the accident, there would have been a greater prospect of identifying the bus. Counsel for the applicant made two submissions in that respect. First, it was submitted that that consideration by the judge was inconsistent with his Honour’s acceptance that it was reasonable for the applicant not to have undertaken any inquiries concerning the identity of the bus until he became aware of his rights to commence proceedings under the Act in May 2017. We do not accept that submission. The question, correctly addressed by the judge, was whether the failure of the applicant to comply with s 7(3)(b) resulted in prejudice to the respondent. The fact, that in the circumstances it was reasonable for the applicant to have failed to give a notice of his claim to the respondent as soon as practicable, did not and could not affect an analysis of the degree of prejudice sustained by the respondent as a result of not having received such a notice.
The second submission, by counsel for the applicant, was that the judge erred in considering that if due notice of the claim had been given to the respondent, it might have been able to ascertain the identity of the bus, in which circumstances it might have been able to make a recovery claim against its owner or driver.[31] Counsel submitted that the judge erred in that respect. He based that submission on the evidence that the vehicles that were used on Barrow Island were not required to be registered. Accordingly, it was submitted, if the respondent had been able to ascertain the identity of the bus, nevertheless it would have been liable for the injury sustained by the applicant pursuant to s 8(5) of the Act.
[31]Reasons [114].
For the reason identified by counsel for the respondent, that submission is flawed. Section 8(5) provides a right of recovery where liability has been incurred by the owner or driver of a motor vehicle that is ‘uninsured’. Section 3 of the Act defines an ‘uninsured motor vehicle’ to mean any vehicle ‘in relation to which it is required to be in force a contract of insurance … under this Act and in relation to which there is not existing and in force [such] a contract of insurance’. In the present case, because the vehicles on Barrow Island were not required to be registered, they were not required to be insured. Accordingly, s 8(5) would not apply to the vehicle involved in the present case. Consequently, if the respondent had been able to ascertain the identity of the bus or its owner, it might have been able to exercise rights of recovery in respect of the claim made against it by the applicant. Accordingly, contrary to the submissions on behalf of the applicant, the judge was correct to conclude that that circumstance constituted a relevant aspect of prejudice which would be sustained by the respondent if the applicant were entitled to proceed against it.
Finally, counsel for the applicant submitted that the judge erred in taking into account the effect of any delay by the solicitors acting for the applicant. In that respect counsel referred to authority relating to s 23A of the Limitation of Actions Act in support of the proposition that in a case such as this, it was not appropriate or correct for the judge to have taken delay by the applicant’s solicitors into account in the exercise of his discretion.
In support of that submission, counsel relied on the decision of this Court in Lord v Australian Safeway Stores Pty Ltd.[32]In that case, the plaintiff applied under s 23A of the Limitation of Actions Act for an extension of time within which to bring an action. Section 23A(3)(a) provides that in determining such an application the court should take into account ‘the length of and reasons for the delay on behalf of the plaintiff’. In Lord, the Court held that the primary judge erred in taking into account, in that respect, the delay not by the plaintiff, but by his solicitors, in instituting the proceeding on his behalf.
[32][1996] 1 VR 614 (‘Lord’).
The decision in Lord, and other authorities that apply to s 23A of the Limitation of Actions Act, are clearly distinguishable from the considerations that must apply in relation to s 29A of the Act in this case. In particular, s 23A(3)(a) is expressed in terms that are directed to the delay on the part of the plaintiff in question. In the present case, the judge was not concerned with the length of the delay. Rather, his Honour (correctly) directed his consideration to the additional prejudice sustained by the respondent as a result of the delays, not only by the applicant, but also by his solicitors. In our view, such a consideration was relevant to an exercise of the discretion under s 29A of the Act.
In considering the discretion under s 29A, the judge correctly considered the length of delay in the prosecution of the applicant’s claim, the reasons for that delay, and the potential prejudice to the respondent should the applicant be permitted to maintain an action against it. Each of those considerations were relevant and appropriate. His Honour’s conclusion that, in the circumstances of this case, it would not be appropriate to excuse the applicant from his failure to provide a notice of his claim to the respondent as required by s 7(3)(b) of the Act, was open to the judge. No relevant error has been demonstrated in the judge’s conclusion to that effect. Nor has it been demonstrated to be plainly unjust or unreasonable.
Accordingly, it follows that if the applicant had succeeded on ground 1, we would, nevertheless, not have been persuaded that ground 2 of the application for leave to appeal was made out.
Summary of conclusions
For the foregoing reasons, we have reached the following conclusions:
(1)The judge did not err in concluding that the applicant had not established, on the balance of probabilities, that the identity of the vehicle involved in the accident could not be ascertained. Accordingly, ground 1 of the application for leave to appeal does not succeed.
(2)The conclusion by the judge, that it had not been established that the identity of the vehicle could not be ascertained, precluded the application of s 29A to the claim brought on behalf of the applicant. For that reason ground 2 must fail.
(3)In any event, no error has been demonstrated in the discretionary conclusion by the judge that, if s 29A applied, it would not be appropriate to excuse the applicant from his failure to comply with the proviso in s 7(3)(b) of the Act.
Notwithstanding those conclusions, the submissions made on behalf of the applicant were sufficiently arguable to justify the grant of leave to the applicant. Accordingly, we would grant the applicant leave to appeal, but dismiss the appeal.
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