Paul Auguszczak v the Nominal Defendant (ACT) [1995] ACTSC 65 (30 June 1995)

SUPREME COURT OF THE ACT

PAUL AUGUSZCZAK v. THE NOMINAL DEFENDANT (ACT)
No. SC227 of 1995
Number of pages - 9
Limitation Of Actions - Motor Vehicle Accident

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation Of Actions - application to extend time under s85(6) of the Motor Traffic Act 1936 (ACT) - action against nominal defendant following motor vehicle accident - plaintiff must show "sufficient cause" for extension of time - relevant factors - reasons for and extent of delay ignorance on behalf of the plaintiff - extent of rights apparently barred to the plaintiff - consideration of possible prejudice to defendant - alternative avenues of recovery for the plaintiff - serious nature of injury to the plaintiff.

Motor Vehicle Accident - application to extend time under s85(6) of the Motor Traffic Act 1936 (ACT) - meaning of requirement of "due inquiry and search" as to identity of defendant - failure to make "due inquiry and search" not necessarily a bar to an action.

Motor Traffic Act 1936 (ACT), s85
Limitation Act 1985 (ACT), s36

AFG Insurances Ltd v Andjelkovic [1981] FCA 104; (1981) 54 FLR 398
Affd (1982) 49 ALR 245
Edwards v Nominal Defendant (1968) 2 NSWR 585
Walters v Incorporated Nominal Defendant (1982) VR 541
Griffiths v McNicholl (1977) 15 SASR 419
Harrison v Nominal Defendant (1975) 7 ALR 680
Pugh v Pugh (1977) Tas SR 80
Turner v Nominal Defendant [1981] FCA 60; (1981) 51 FLR 342
Daroczy v B and J Engineering Pty Ltd (in liq) (1986) 67 ACTR 3
Noja v Civil and Civic Pty Ltd (1990) 93 ALR 224
S and B Pty Ltd v Podobnik (unreported, Federal Court of Australia,

Canberra, Gallop, Neaves and Carr JJ, 28 October 1994)

Bell v SPC Ltd (1988) VR 123
Taylor v Western General Hospital (1986) VR 250

HEARING

CANBERRA, 19 May 1995
30:6:1995

Counsel for the Plaintiff: Mr G Parker

Instructing solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr D Harper

Instructing solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
The time prescribed under s85(5)(b) of the Motor Traffic Act 1936 (ACT), be extended pursuant to s85(6) thereof, until and including 16 April 1994.

DECISION

HIGGINS J This is an application by the plaintiff to extend the time prescribed under s85(5)(b) pursuant to s85(6) of the Motor Traffic Act 1936 (ACT) (MTA).

2. Those subsections are in the following terms:

(5) Subject to subsection (6), an action to enforce any such claim
shall not lie against the nominal defendant unless notice of
intention to make a claim is given by the claimant to the nominal
defendant -
(a) in the case of an action for the recovery of any amount referred
to in subsection 76(1) - within the time prescribed by paragraph
76(1)(c);
(b) in any other case - within a period of three months after the
occurrence out of which the claim arose, or within such further
period as the nominal defendant allows.
(6) Where the nominal defendant refuses to allow a further period
in pursuance of paragraph (5)(b) or a notice referred to in
subsection (5) has not been given as required by that subsection
within a further period so allowed, the court may, upon sufficient
cause being shown, allow such further period as it thinks fit for
giving to the nominal defendant notice of intention to make a claim.

3. It will be noted that the onus is placed upon the plaintiff to show "sufficient cause" for the grant of the further time period sought.

4. The relevant right of action is created by s85(3) MTA. It will arise if the plaintiff demonstrates that he suffered bodily injury arising out of or caused by the use of a motor vehicle "where the identity of the motor vehicle cannot after due inquiry and search be established".

5. The plaintiff has deposed that (and I set out his affidavit evidence):

2. At about 6.45pm on 11 September 1990 I was in the carpark at
Macarthur House, Macarthur Avenue, Lyneham, in the Australian
Capital Territory with the bonnet of my car open attempting to start
it because it appeared to have a flat battery.
3. A tall, bearded man with long hair in his mid to late 30's drove
up in a white HD Holden Utility. He offered to assist me to start
my car by using jumper leads to connect the battery of his car to
the battery of my car.
4. He drove his utility into a position in which the front of his
car was in front of and facing the front of my car and we were able
to jump start my car using the leads in the manner described above.
5. I disconnected the leads from the battery of his car and he
closed the bonnet of his car. I then thanked him for his assistance
and turned around to disconnect the leads from the battery of my
vehicle and close the bonnet.
6. The next thing while I was facing towards my vehicle I felt my
legs being pinned between the two cars at about the knees and pain
in my legs. I tried to twist around in order to get out from
between the cars. I could see that the other vehicle had in fact
been driven forward which caused me to be pinned between the bumper
bars of the two cars.
7. The other driver reversed and got out of the car again. At this
time, I was on the ground and he asked "If I was okay". He then got
back into his white HD Holden and drove off quickly.
8. At this time, I was shocked and in great pain and was on the
ground. I was surprised by the other driver's actions and I was not
able to get the details of his registration before he drove off.
9. To the best of my recollection, the vehicle had ACT number
plates.

6. It will be noted that the vehicle was not identified. Whether it was insured or not is not known. It follows that 'due inquiry and search' must have been made.

7. The evidence is that no 'inquiry and search', 'due' or otherwise, began until 14 April 1994. This was approximately three years and four months after the incident complained of. On 14 April 1994, the plaintiff's solicitors wrote to the defendant advising of the plaintiff's intention to proceed to recover damages for bodily injury arising out of the incident of 11 September 1990 (the incident). That was the earliest occasion on which any notice of the kind referred to in s85(5) was given.

8. Inquiries were then made at ACT Motor Registry seeking details of the names and addresses of all registered vehicles answering the description of the vehicle which injured the plaintiff.

9. A list of vehicles so registered as at 11 September 1990 was obtained. It did not include any vehicles so described which had been, but had ceased to be, registered within the 12 months preceding 11 September 1990. There has been no public advertisement for witnesses which might include the unidentified male person in charge of the vehicle, to come forward.

10. The incident has not been reported to police.

11. However, in view of the fact that he was on a journey to his home from his place of employment when the incident occurred, the plaintiff made a successful claim for workers' compensation. The claim form was dated 21 September 1990. It was addressed to "MMI", a workers' compensation insurer. It made reference to the other vehicle. The form contains what appears to be a contemporaneous note by an employee of the workers' compensation insurer "Clmt (claimant) has no details of responsible party". It does not seem that the insurer made or initiated any inquiries, either of the plaintiff or otherwise, to identify the 'responsible party'. There is no doubt that the insurer had an interest in finding the responsible party. It could have sought indemnity from that party or his insurer.

12. The evidence before me discloses that in February 1992 an officer of MMI rang the office of the defendant to inquire whether the defendant would accept liability for the plaintiff's claim. The defendant's officer advised that the plaintiff would need to make such a claim. That inquiry led to a letter from MMI on 29 May 1992 addressed to the plaintiff. The letter stated:

We refer to your Workers' Compensation claim and seek advice as to
whether you have instigated third party proceedings against the
NOMINAL INSURER (NRMA) or propose to do so.
If you have instigated proceedings could you please advise our
office of your solicitors at your earliest convenience.

13. On 7 August 1992, the plaintiff replied. His letter stated:

I would like to refer to my workers compensation claim and inform
you that I have not instigated third party proceedings against the
nominal insurer (NRMA) and I do not propose to do so.

However, MMI took the matter no further. Neither, at that time, did the plaintiff.

14. The plaintiff provided the list of vehicles and registered owners to the defendant by letter dated 14 July 1994. By 19 August 1994, the plaintiff and a private investigator had visited each of the addresses given. However, whilst most of the vehicles were able to be conclusively excluded, two possibilities remained. One of those vehicles seems to have been registered to an incorrect address. It cannot be traced. The other was previously owned by a person who lived at Yass, New South Wales. How that person came to be recorded as an ACT registered owner is unclear. It is not clear, also, whether he could have advised the name and address of the purchaser. The investigator's report is unclear on that point.

15. The plaintiff must show that he has an arguable case that the inquiries and searches so far made, or capable of being further made, constitute, or will constitute, 'due inquiry and search'. Otherwise, he should not be granted the relief he seeks: see, for example, AFG Insurances Ltd v Andjelkovic [1981] FCA 104; (1981) 54 FLR 398; Affd (1982) 49 ALR 245. There is no difference for present purposes, between the grant of leave to proceed sought in that case and the extension of time now sought.

16. In Edwards v Nominal Defendant (1968) 2 NSWR 585, the Court of Appeal held that a failure promptly to make inquiry and search will debar a plaintiff whether or not he or she was aware of the need to make it. The test is objective.

17. Herron CJ, agreed with the view that a report to police is not an essential precondition to action against the nominal defendant. However, in his Honour's opinion, at 588:

The requirement of due inquiry and search is an objective standard
to this extent, that an injured claimant cannot decide for himself
or herself that as inquiry or search would probably be fruitless
none need be made.

18. In that case there had been no inquiry or search by anyone for four months. The matter was then reported to police. His Honour observed, at 589:

The plaintiff, it seems to me, decided against any action to trace
the offender until it was too late to do so, partly because her
disability was delayed and more especially by reason of the fact
that she was covered, as to her journey home, by workers'
compensation. She decided to rest her rights on her employer's
liability, and the inference is that for this reason she decided
against making or at any rate failed to make any relevant inquiry or
search.
Such belated inquiry and search as was made in July was not "due"
inquiry or search as the statute requires.

19. Asprey JA concurred. His Honour also referred to the fact that the plaintiff had been unaware of her right to claim against the nominal defendant. His Honour said, at 590:

The question arises whether 'the circumstances of the case' which
dictate the nature and extent of the inquiry and search which is
required, include only objective facts, or whether it is also
permissible to pay regard to the state of mind of the plaintiff
which was unrelated to the injuries sustained. The failure to
pursue a line of inquiry within some intervening period of time may
be accounted for by the objective facts of the case, for example as
was suggested in Cavanagh's Case (Cavanagh v Nominal Defendant
[1958] HCA 57; (1958) 100 CLR 375), the nature of the injuries sustained by the
victim of the accident may be such as to prevent the promptness of
any inquiry which otherwise might be reasonably expected. But I do
not think that a state of mind peculiar to a plaintiff can be
successfully advanced as a reason for making no inquiry or search at
all during a period when she was physically capable of that
activity. The test of whether due inquiry and search was made in
the particular circumstances of any case is what a reasonable person
ought to have done in those circumstances.

20. In that case, the plaintiff had been struck by a motor scooter. It happened so suddenly that she could give no useful description of the scooter or the rider. She made no contemporaneous report to police. She did report the accident to her employer the next day and claimed compensation.

21. In circumstances of Edwards' Case (supra) are not relevantly distinguishable from the present save that the delay was much less. The prospects for a successful outcome from prompt inquiry and search seem to have been less than in the present matter.

22. That case was followed by Brooking J in Walters v Incorporated Nominal Defendant (1982) VR 541. His Honour held that the plaintiff's mistaken belief that she could not sue an unidentified person negligently driving an unidentified motor vehicle was irrelevant to whether due inquiry and search had been made. As there had been no collision, she had not reported the matter to police. She started to make inquiries nearly 2 1/2 years later. That was held insufficient to be capable of being 'due inquiry and search'.

23. However, with due respect to that latter decision, the apparently adverse view taken in Edwards' Case seems to me now to be subject to the qualification recognised by the High Court in Harrison v Nominal Defendant (1975) 7 ALR 680. That decision was not referred to in Walters' Case (supra).

24. In Harrison's Case (supra) the appellant was a passenger in a taxi. It was struck by another motor vehicle, apparently negligently driven. The appellant suffered bodily injury. Before the taxi driver, who first called for assistance, could turn his attention to it, the other vehicle drove off. The taxi driver could give only a vague description of that other vehicle.

25. Barwick CJ interpreted the relevant provision in the following terms, at 682:

The word "after" in the subsection does not, in my opinion, require
that some inquiry and search must necessarily in fact always precede
some other event or the drawing of a conclusion. If, in the
circumstances of the case, it is evident that the identity of the
vehicle could not be established by due search and inquiry the
stipulation, in my opinion, may be held to be established, although
no search or inquiry destined to be futile has been made. Whether
or not the identity of the vehicle might have been established after
search and inquiry appropriate to the circumstances of the case had
been made is a question of fact.

McTiernan, Stephen, Mason and Jacobs JJ concurred.

26. Accordingly, whilst 'due inquiry and search' had not been made, the plaintiff was not debarred on the basis that, even had 'due inquiry and search' been undertaken, no identification would, on the balance of probabilities, been effected in respect of the offending vehicle or its driver.

27. That opinion is, of course, binding. Insofar as it varies from the opinion of the Court of Appeal in Edwards' Case, or the view of Brooking J in Walters' Case, I am obliged to prefer it. It indicates that if prompt search and inquiry has been made then, if it is as much as might be done, it will be regarded as 'due'. It also indicates that, even if no 'due' inquiry and search has been made, the subsection will be satisfied if no real result is likely to have followed from an adequate inquiry even if made.

28. That was the interpretation given to that opinion in Griffiths v McNicholl (1977) 15 SASR 419, per Bray CJ, Walters and Zelling JJ.

29. In Pugh v Pugh (1977) Tas SR 80, Chambers, Nettlefold and Cosgrove JJ similarly applied Harrison's Case. In that case, the relevant available factual observations were little different from those in the present case.

30. In my opinion, it is at least arguable that if all feasible inquiries as might have been made following the injury to the plaintiff, whether by him or by others, had been made, they would have been unlikely to have revealed the identity of the other vehicle or its driver. The inquiries subsequently made are arguably unlikely to have produced a different result even if they had been made promptly. It is possible, but unlikely, that an advertisement would have led the other driver to come forward. It is unlikely there would have been any relevant witness who could have identified the other driver. It is clear enough that the facts alleged by the plaintiff to explain his injury would, if accepted, make out a prima facie case of negligence against the unidentified driver.

31. However, that does no more than indicate that the plaintiff has an arguable case on the issue of liability. Whether time should be extended is another matter. That depends on whether 'sufficient cause' has been shown.

32. The approach to the exercise of the discretion to extend time was considered by a Full Federal Court in Turner v Nominal Defendant [1981] FCA 60; (1981) 51 FLR 342. That decision is of binding authority.

33. In Turner (supra) the applicant had been injured by the apparent negligence of an unidentified driver of an unidentified motor vehicle in September 1978. Whilst he reported the accident to police and, with his father, made inquiries in and searched the area where the accident had happened with a view to finding the offending vehicle, he took no legal advice and gave no notice of his intention to sue the nominal defendant until November 1979. The applicant's reasons for delay were his, and his father's, ignorance of his right to sue the nominal defendant and the initial expectation of full recovery from his injuries. That expectation was dashed by expert medical advice in November 1979.

34. The application was refused at first instance. Blackburn CJ, (1978) 29 ACTR 13, 19 said:

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.

35. Not being so satisfied, his Honour refused the application.

36. The appellate court, McGregor, Davies and Sheppard JJ, did not accept that the applicant had 'deliberately refrained from taking action'. They held that the matter of prejudice to the respondent was relevant but had to be weighed in the balance against the policy of the legislation which was intended on the one hand to enable the nominal defendant to follow a fresh trail and not be embarrassed by long outstanding claims. On the other hand, it was not intended that the time limitation should prevent the prosecution of a just claim. Their Honours ordered the time limit to be extended.

37. In considering whether the plaintiff has shown 'sufficient cause', factors common to applications to extend other time limits imposed by law are relevant. The approach taken by Kelly J in Daroczy v B and J Engineering Pty Ltd (in liq) (1986) 67 ACTR 3 was approved by a Full Federal Court (Sheppard, Neaves and Miles JJ) in Noja v Civil and Civic Pty Ltd (1990) 93 ALR 224.

38. In the matter of S and B Pty Ltd v Podobnik (unreported, Federal Court of Australia, Canberra, Gallop, Neaves and Carr JJ, 28 October 1994) a Full Court, considering the exercise of discretion to extend a limitation period, emphasised that the whole period of delay whether before or after the expiry of the time limit in question is relevant.

39. Although Daroczy (supra), Noja (supra) and S and B Pty Ltd v Podobnik (supra) were each concerned with the discretion conferred by s36 Limitation Act 1985 (ACT) wherein relevant criteria are set out, those enumerated criteria are appropriate considerations, along with other relevant matters for the exercise of the discretion conferred by s85(6) MTA. Even s36 does not spell out all relevant criteria.

40. As Gallop J pointed out in S and B Pty Ltd v Podobnik, at 12, the apparent strength of an applicant's case if time is extended, though not enumerated in s36 Limitation Act, is relevant, notwithstanding the opinion of Brooking J in Bell v SPC Ltd (1988) VR 123 to the contrary and, similarly, of King J in Taylor v Western General Hospital (1986) VR 250.

41. The decision in S and B Pty Ltd v Podobnik is binding on me whilst the Victorian decisions are not.

42. Ultimately, the question is whether, having regard to the reasons for and extent of the relevant delay, the nature and extent of the rights apparently barred to the plaintiff and any prejudice which is or may be presumed to have been suffered by the defendant, sufficient cause has been shown for time to be extended. It is relevant to consider whether the plaintiff has any alternative right of recovery if denied an extension of time. However, both Daroczy and Noja indicate the difficulty in affording much weight to such a consideration.

43. The length of the delay in this matter is between three and four years. Insofar as the trail was ever 'warm', it is now certainly cold. The reason for the delay was the plaintiff's ignorance as to his rights. He took little or no steps to obtain competent legal advice.

44. Further, he seemed, by his letter of 7 August 1992, though not addressed to the defendant, to have deliberately foregone his option of proceedings against the defendant.

45. It is relevant to the evaluation of reasons for delay to consider whether that correspondence discloses an informed choice on the part of this plaintiff to forego his rights.

46. In this case, the applicant says that he assumed that, in the absence of any information from him as to the identity of the driver or of the registration number of the unidentified vehicle, he had no entitlement to make a claim. Under cross-examination, he said he had asked friends to explain the MMI letter to him. He got no real assistance from them. He confirmed that his belief was, and remained until he consulted solicitors in April 1994, that he had no entitlement to make a claim.

47. Having seen and heard the plaintiff give his evidence, I can accept that his pre-April 1994 view, though surprisingly naive, was genuinely held. He did take time to reply to the MMI letter. He did repeat its terms back to MMI. It seems unlikely, given his subsequent conduct in commencing proceedings, that the plaintiff, knowing his rights, had decided not to pursue them.

48. It is also relevant to take account of the view I have formed on the 'due inquiry and search' issue. That is, that had the nominal defendant been informed promptly of the accident, it is at least arguable that no better information in substantive terms, would have been forthcoming. It is possible that one of the two vehicles not totally eliminated was, or will be, identified as the offending vehicle. However, the lapse of time does not seem to me to make any difference in that respect.

49. It cannot be said that the defendant is prejudiced in any demonstrable way by the delay in giving notice. It is clear from Turner's Case that the plaintiff, to establish 'sufficient cause', does not need to disprove prejudice to the defendant. Rather, it is a question of weighing the degree of proved or presumed prejudice against the other relevant factors.

50. In this case, the degree of prejudice which can be shown or presumed by reason of the delay does not seem to me to be sufficient to outweigh the force of those factors favouring a grant of extension of time. The reasons for delay, though far from compelling, are not such as to indicate that it would be unjust to allow the extension of time sought.

51. I do take account of the apparently serious injury suffered by the plaintiff. I am persuaded that that serious injury and its ongoing effects together with the apparently sound claim the plaintiff appears to have would make it unjust in all the circumstances to refuse the application. The plaintiff should be allowed the opportunity to prosecute his claim.

52. 'Sufficient cause' has been shown. I will extend time to notify the defendant, as requested, until and including 16 April 1994.

53. I will hear the parties as to costs.