Richardson v Nominal Defendant (ACT) [2001] ACTSC 35 (27 April 2001)

Last Updated: 19 March 2002

STUART BENJAMIN RICHARDSON v NOMINAL DEFENDANT (ACT) [2001]

ACTSC 35 (27 APRIL 2001)

CATCHWORDS

LIMITATION OF ACTIONS - motor vehicle accident - action against nominal defendant - application to extend time of notice of intention to sue pursuant to s 181(2) Road Transport (General) Act 1999 - whether requirement of "appropriate inquiry and search" as to identity of vehicle satisfied - it was - extension of time granted.

Road Transport (General) Act 1999, ss 179, 180(1), 181(1), 181(2)(a)(b)

Limitation Act 1985, s 36

Auguszczak v Nominal Defendant (ACT) (1995) 22 MVR 416

Edwards v Nominal Defendant (1968) 2 NSWR 585

Harrison v Nominal Defendant (1975) 7 ALR 680

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1

Holt v Wynter [2000] NSWCA 143; (2000) 31 MVR 467

No. SC861 of 2000

Judge: Higgins

Supreme Court of the ACT

Date: 27 April 2001

IN THE SUPREME COURT OF THE )

) No. SC861 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STUART BENJAMIN RICHARDSON

Plaintiff

AND: NOMINAL DEFENDANT (ACT)

Defendant

ORDER

Judge: Higgins

Date: 27 April 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Time for the plaintiff to notify the defendant of the plaintiff's intention to make a claim be extended to and including 15 March 2000, that being the date upon which the plaintiff gave requisite notice.

1. This is an application to extend the time limit imposed by s 181(1) of the Road Transport (General) Act 1999 ("the Act"). The power to do so is conferred by s 181(2).

2. The relevant provisions of the Act are:

"181(1) An action to enforce a claim against the nominal defendant may be taken only if the claimant gives written notice of intention to make a claim to the nominal defendant within 3 months after the motor accident.

(2) However, the time for giving the notice may be extended by -

(a) the nominal defendant; or

(b) if the nominal defendant refuses to extend the time the court in which the action is proposed to be brought."

3. An action lies against the nominal defendant, at the suit of a person injured by the negligent use of a motor vehicle only if the vehicle was uninsured (s 179) or if the vehicle causing the injury cannot be identified "after appropriate inquiry and search" (s 180(1)).

4. The motor accident relevant for the purposes of this application occurred on 3 July 1998. Whilst the occurrence of the accident and its circumstances remains to be established, I will assume the facts asserted by or on behalf of the plaintiff. Indeed, they are not challenged so far as this application is concerned.

5. The accident was reported to police on 4 July 1998 in the following terms:

"V1: ACT 51-469, 11/98, BLUE KAWASAKI ZX9 MOTOR CYCLE RIDER; STUART B RICHARDSON, 10 DIVISION ADFA, NORTHCOTT DR, CAMPBELL `P' 2057178, CA, 24.7.99, 23.7.78, `L' MC LICENCE EXP. 28.12.98 MINOR DAMAGE, NIL TOW, BROKEN R WRIST AND L COLLAR BONE, 1M OCCUP. OWNER; PHILLIP RUBEN, 21 DIVISION, ADFA, NORTHCOTT DR, CAMPBELL. V1 TRAVELLING WEST ON TIDBINBILLA ROAD APPROX 5KM WEST OF POINT HUT CROSSING ROAD WHEN A SILVER COMMODORE TRAVELLING EAST ON TIDBINBILLA ROAD VEERED ONTO THE INCORRECT SIDE OF THE ROAD AND FORCED V1 WHO WAS NEGOTIATING A RIGHT HAND CORNER TO STRAIGTHEN (sic) UP AND BRAKE. AS A RESULT V1 ENTERED ONTO LOOSE GRAVEL ON THE ADGE (sic) OF THE ROAD AND LOST CONTROL AND FELL FROM THE MOTOR CYCLE. THIS WAS THE FIRST OCCASSION (sic) THAT THE RIDER HAD RIDEN (sic) THIS MOTOR CYCLE WHICH WAS OWNED BY PHILLIP RUBIN OF 21 DIVISION.

REPORT SUBMITTED NO POLICE ACTION."

6. In his affidavit the plaintiff confirms the details of the motor accident as supplied to police. As a result of leaving the roadway the plaintiff suffered the injuries referred to. He had a mobile phone with him. He summoned help. A friend attended and conveyed him to the Duntroon infirmary. He was then a Royal Australian Air Force cadet stationed and studying at the Australian Defence Force Academy (ADFA).

7. It is clear that, if the motor accident occurred as described by the plaintiff, he would have a good cause of action for damages for the personal injury he sustained in the accident against the driver of the silver Commodore.

8. Thus, subject to the conditions prescribed by ss 180 and 181 of the Act, the plaintiff would have a good cause of action against the defendant.

9. As a result of his injuries, the plaintiff was confined to the infirmary for 4 days. He was attended by Dr David McNicol and Duntroon medical staff.

10. The happening of the accident and the details concerning it were reported to the plaintiff's Divisional Officer who reported the same to police.

11. The plaintiff lost no pay. Nor did he incur medical expenses. His training was interrupted.

12. He was, on 30 June 1999, involved in a further motor vehicle accident. He consulted Mr Romano, his current solicitor, in February 2000 with a view to suing the driver of the other vehicle involved in the accident for damages for the injuries sustained in that accident. It seems that liability has been admitted by NRMA Insurance Ltd, the third party insurer of that other vehicle. In the course of giving instructions in relation to that matter, the plaintiff gave his solicitor an account of the motor accident of 3 July 1998.

13. Accordingly, on 15 March 2000, Mr Romano gave the defendant particulars of the motor accident of 3 July 1998 and notice of intention to make a claim. An extension of time for the giving of notice was sought from the defendant. The defendant sought particulars by letter dated 12 May 2000. That letter was replied to and particulars supplied on 24 July 2000.

14. On 9 August 2000, the defendant responded in the following terms (omitting irrelevant matters):

" . . . we (sic) have completed our inquiries into the circumstances of the accident and we deny liability.

We make this denial on the basis that you have not taken sufficient steps to identify the other vehicle and the claim was lodged outside the appropriate time frame. . . ."

15. On 5 September 2000, Mr Romano wrote to the defendant protesting at this decision, noting that no particular prejudice was asserted. An intention to apply for extension of time was foreshadowed.

16. There was further correspondence concerning the "appropriate inquiry and search" issue. The submission put to the defendant by Mr Romano on 12 October 2000 was, relevantly, in the following terms.

"You are quite correct in asserting that Mr Richardson has made no attempts to locate the unidentified vehicle save for reporting the accident to the police who investigated the accident and could not come up with the name of the unidentified vehicle.

If you are suggesting that either Mr Richardson or this office should have undertaken enquiries when we first became aware of this incident in mid 2000 then with all due respect it seems to us you have taken an unrealistic approach to the matter. Would it have made one iota of difference if Mr Richardson or this office had placed an add (sic) in a local newspaper requesting information of the accident in question some two plus years earlier from members of the public when the resources of the Australian Federal Police had failed to locate and come up with any trace of such an accident. We rather doubt it . . ."

17. There was a further foreshadowing letter of 30 October 2000 protesting that, in the view of the writer, no purpose would have been served in doing more than had been done.

18. It is apparent that the plaintiff concedes that no "inquiry and search" was made by him or on his behalf. Further, there is no evidence that, apart from receiving and noting the report of the accident, police made any further enquiries.

19. There is, therefore, a question as to the extent of the "inquiry and search" required so as to enable a plaintiff fix liability upon the defendant.

20. Ordinarily, of course, even though a third party insurer will pay any damages awarded, there is an identified defendant available to assist the insurer to assess liability and thus the prospects for contesting the litigation. That advantage is available for this defendant if the allegedly negligent other driver is merely uninsured. However, if neither the allegedly negligent other driver is identified, nor the vehicle being driven so as to enable the defendant to identify at least the registered owner (if any), that advantage is lost.

21. There must, therefore, be a reasonable prospect that some plaintiffs injured in a single vehicle accident will seek to cast the blame for it onto an unidentified and possibly, unidentifiable motor vehicle when either such other vehicle was fictional or not at fault.

22. In the present case, the prompt report to police coupled with the fact the plaintiff was at that time unaware that he could obtain damages by reason of the negligence of an unidentified driver leads me to conclude that the plaintiff's claim is prima facie genuine.

23. The question of "inquiry and search" was considered by me in Auguszczak v Nominal Defendant (ACT) (1995) 22 MVR 416. In that case, as in the present, the plaintiff suffered an injury by reason of the actions of the driver of an unidentified vehicle. No immediate enquiries were made. In contrast with the present matter the plaintiff did not report the incident to the police. He did, however report the matter within 10 days to his employer's insurer. He made a worker's compensation claim, which was accepted.

24. It appeared that, though it had some interest in doing so, the employer's insurer did not make any "inquiry or search" either.

25. After the plaintiff became aware of his common law rights and his statutory right to sue the Nominal Defendant to enforce those rights a motor vehicle search was undertaken to find the vehicle involved. There was a list of vehicles matching the plaintiff's description of the offending vehicle. It had been provided 3 years before. None of those vehicles could be linked with the accident.

26. In that case I accepted the principle adopted by the Court of Appeal (NSW) in Edwards v Nominal Defendant (1968) 2 NSWR 585. That is that satisfaction of the "appropriate inquiry and search" criterion is to be assessed objectively. Thus:

(588) " . . . an injured claimant cannot decide for himself or herself that as inquiry or search would probably be fruitless none need be made." (Herron CJ).

27. The High Court, in Harrison v Nominal Defendant (1975) 7 ALR 680, whilst agreeing that the test was objective, also agreed that, if it appeared objectively that no search and inquiry would be useful, none need be made.

(682) "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." (Barwick CJ).

28. At this stage of the proceedings it is necessary only to be satisfied that, despite the plaintiff's inactivity and the lapse of time before the defendant was notified, there was an arguable case that the condition that there has been "appropriate inquiry and search" was satisfied to the standard set by Harrison's case.

29. In my view, that is so here. The road was a lonely one. No other vehicle or persons were in view. In contrast with Auguszczak's case, it is likely that the driver of the motor vehicle was not even aware that the plaintiff had been forced off the road. The plaintiff was, after all, riding a motor cycle travelling in the opposite direction from the other vehicle. The unidentified vehicle rapidly disappeared. If, contrary to that assumption, the unidentified driver had seen the plaintiff leave the road, the fact that he did not stop, nor later report the matter, makes it unlikely that had an advertisement for witnesses been placed and noticed by him or her, that driver would come forward. Further, given there was no contact with the plaintiff's motor cycle there was no damage which might have aroused a third party's suspicion that a known person or vehicle had been involved in the incident so advertised. That view is confirmed, to some extent, by the fact that police did not make further inquiries. If there had been a reasonable avenue for inquiries, it is likely that police would have pursued it.

Extension of time - the discretion

30. There remains, however, the question as to whether, even so, time should be extended. In Auguszczak I took the view that the approach to that question was analogous to the approach to the grant or refusal of extensions of time under the Limitation Act 1985 s 36 - see at 420-421.

31. That opinion remains valid, subject to any qualifications arising from the opinions expressed on Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1.

32. The extent of that qualification on previously expressed opinion was examined by the Court of Appeal (NSW) in Holt v Wynter [2000] NSWCA 143; 31 MVR 467.

33. In this case, the total delay from the accident to the present time is nearly 3 years. The explanation for the delay is a reasonable one. No doubt proceedings could have, even so, been commenced more promptly. However, it does not seem to me that anything much turns on that delay.

34. The only issue gone "stale" is the pursuit of the actual tortfeasor. As to that, it is still open to the defendant to persuade a court that appropriate inquiry and search has not been made. There does seem, on the material before me, an arguable case that that condition was satisfied.

35. There is nothing to indicate any worsening of the situation immediately following the accident and thereafter.

36. Nor is the delay so extreme that, of itself, it is unjust to permit the plaintiff to pursue his claim. In my view, the circumstances of this case more greatly favour the grant of an extension of time than Auguszczak.

37. It follows that I do not consider that the degree of presumed prejudice from the delay outweighs the factors favouring that extension of time. That is particularly so because, if the second accident alone is prosecuted, the defendant in those proceedings will be able to argue that disabilities so suffered by the plaintiff were the result of the earlier accident. Whilst the plaintiff would oppose that, it would prejudice both him and his employer's workers compensation insurer not to have the opportunity through this defendant to support that challenge.

38. I am satisfied that sufficient cause has been shown to extend time for the plaintiff to notify the defendant of his intention to sue. That notice was, I find, given on 15 March 2000, and time is extended to and including that date accordingly.

39. I will hear the parties as to costs.

I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 27 April 2001

Counsel for the Plaintiff: Mr D Romano

Solicitor for the Plaintiff: Romano & Co.

Counsel for the Defendant: Mr G Stretton

Solicitor for the Defendant: Abbott Tout

Date of hearing: 30 March 2001

Date of judgment: 27 April 2001