Cavanagh v Nominal Defendant

[1958] HCA 57

High Court of Australia|1958-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1958-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Cavanagh v Nominal Defendant [1958] HCA 57

[2]

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court and in lieu thereof order that the appeal to that Court be allowed with costs and a new trial ordered. The costs of the first trial to abide the event of the second trial.

[3]

By a writ issued on 11th November 1954 the plaintiff, June Clare Cavanagh, sued under the name of Brown to recover from the nominal defendant damages in respect of bodily injury she had suffered arising out of the use of a motor vehicle she had failed to identify. She sustained the injury on Sunday 14th March 1954, near Wallacia where she lived with her husband Brown. According to her evidence she there conducted a riding school but she also ran some cattle on some land that she had leased. She said that she, Brown and a boy were droving about eighty cattle along the Mulgoa road. She was riding in front of the herd; Brown and the boy behind it. A motor car maintaining too great a speed came through the cattle and frightened them. She rode back and remonstrated but the car persisted. In the midst of an altercation her horse was frightened at the moving car, which she said touched her horse's hock as the horse was "crabstepping" with the vehicle. The horse jumped to the side of the road, lost its footing on a culvert and came down in the ditch with its rider. She suffered injuries, chiefly to her vertebrae but was quite conscious. The car accelerated and drove off. She said it was similar to an Austin A40 but she was not sure of it. The colour was a dirty green; she thought she had got the number but it proved incorrect. She asked her husband Brown and the boy whether they had got the number but they had not and she told Brown the number as she thought she had got it. She asked her husband to leave her lying where she was and go to a telephone and tell the police. Apparently an ambulance came and removed her to her own home. She was visited by a sergeant of police on the following Tuesday. The effect of her evidence is that she gave him the number of the car but it proved to be wrong and on a later occasion she asked him what she could do about the car "because we never got the correct number". At one or other interview she aid that there were wo men in the car wearing sporting clothes and coloured blazers.

[11]

In the present case the plaintiff's case failed not because she was unable to identify the vehicle, not because she had not made due inquiry but because she did not prove by admissible evidence that the police, whom she had promptly informed, were not able as a result of their inquiries to identify the motor vehicle. The judge at the trial so instructed the jury who, at his direction, returned a verdict for the defendant. His Honour's reasons appear from the following passage from his direction to the jury: "What the Act requires is that the plaintiff should make due inquiry and search for the driver who caused the trouble and that he could not be identified. Now, of course, it does not depend on the plaintiff herself making such inquiries, and you might think in ordinary circumstances if the matter is promptly put in the hands of the police, that would be sufficient. On the plaintiff's evidence that was done here, and so far as due inquiry and search were concerned, I would be disposed to say that there was enough evidence to enable you to hold that the plaintiff had made due inquiry and search. But she has to go further and prove that the search was fruitless, that the vehicle was not identified. As I can see it, gentlemen, there is no evidence at all to that effect; there is no evidence of the result of the police inquries; there is no evidence that the police were unable to identify the driver of the car that went through this mob of cattle. The plaintiff herself was unable to identify the vehicle as the result of her own personal inquiry; we know that. But she tells us that she took the number of this car, and she tells us that she gave it to her husband who rang the police, and that being the state of affairs, it becomes obligatory upon her to show how it is that that vehicle was not identified. No doubt the reason is that she got the wrong number; but that is only a guess. There is no evidence to that effect. It is true she says "I tried to get the number; that is what I thought, but it proved incorrect." But, gentleman, that is only evidence that someone told her it was incorrect. The only way it can be proved to be incorrect would be by calling the person who made the inquiry, or calling some other evidence to show that the number she took was just not conceivably the number of the car that was out at Mulgoa that day. The position that has arisen is an unfortunate one, but in those circumstances I can only direct you to bring in a verdict for the defendant, and a verdict will be entered accordingly."

[16]

In December 1954 her husband Brown died. She remarried on 15th June 1955. On 11th August 1954 the plaintiff's solicitor wrote to the officer in charge at the appropriate police station. His letter ended: "Would you kindly supply us with any particulars you may have as to the identity of the driver or the owner of this motor vehicle. We understand that the police from Warragamba were called to the scene of the accident." A letter of inquiry to the Superintendent of Police and one to the Superintendent of Traffic and a reply dated 25th October 1954 were all rejected. The last-mentioned letter was marked for identification and in that way is available for our reading. It contains the paragraph: "I am directed by the Commissioner of Police to inform you that this Department has no knowledge of the identity of the vehicle alleged to have been indirectly concerned in this occurrence." The plaintiff was recalled and allowed to say that she was not able from her own inquiries to identify the vehicle but she was not allowed to go further and state what the police told her of the result of their inquiries. The sergeant of police was recalled. He was permitted to say what was the system in the police department of recording inquiries and the result and he said that if a vehicle was located it would appear in the record. An "occurrence sheet" was in court but a police witness claimed privilege for it. The learned judge looked at the file and said there was nothing in it having any bearing upon the matter. Apart from the police file and whatever document therein it was desired to tender, all the evidence described which was rejected must surely have been admissible on the issue of due inquiry and search and of the plaintiff's ability to fix the identity of the vehicle. It is said in support of the rejection of the evidence that the question to which attention really was directed was whether the police inquiries had "established" the identity of the car. In fact the defendant by cross-examination and evidence suggested that there had not been any car responsible for the plaintiff's injury and that the plaintiff's claim against the nominal defendant was not an honest one. One may safely suppose that the nominal defendant would be aware of the result of the police inquiries. In other words it was quite plain that there was no substance in the defendant's objection that the police department might have identified the car and that this possibility had not been excluded by admissible evidence. One may agree entirely in the statement made by Owen J. for the Full Court of the Supreme Court that "in a case of this description due inquiry and search could seldom if ever be established unless it was shown that the assistance of the police had been sought to identify the motor vehicle" [1] . But it is in the next two sentences that the ground of the decision upholding the directed verdict is stated: "The plaintiff properly invoked the assistance of the police to make due inquiry and search. Having done so, evidence must be given by appropriate means that that inquiry and search failed to establish the identity of the vehicle" [1] . To this ground there are two answers which appear to be decisive. In the first place admissible evidence was excluded which when added to the evidence admitted might have warranted the inference. In the second place, on the true interpretation of the provision what it requires the plaintiff to show is not that no knowledge of the identity of the vehicle exists elsewhere, even in public authority, but that no sufficient knowledge of (or perhaps means of establishing) the identity of the vehicle has come home to the plaintiff or to the plaintiff's servants or agents or to those for whom he is vicariously responsible, notwithstanding that due inquiry and search has been made. That of course means "due inquiry and search" in the sense described in the earlier part of this judgment.

[24]

Subject to one matter, therefore, I am of the opinion that there should be a new trial. To the above observations one qualification is necessary and it involves a matter which has given me some concern. The appellant claims that after the accident she thought she had ascertained the offending vehicle's registration number and this, she says, she gave to the police. Early in the case she was asked whether she thought she had "got a look at the number" and she answered "Yes. I tried to get the number; that is what I thought, but it proved incorrect". She claims now to have forgotten the number and her statement that "it proved incorrect" appears to be based on information supplied to her by the police. It was apparent that, if strict proof had been required, it was not competent for her to prove, by evidence of this character, that the number was incorrect. But no objection was taken to her answer at the time and the later objections and discussions during the course of the evidence were concerned with the substance of answers to subsequent inquiries made by her of the police authorities. Of course, if it is proper to disregard her evidence that the number which she said she gave to the police had "proved incorrect", there would be a serious gap in the case. In that event, the case would appear as one in which there had been no inquiry and search based upon the apparently observed registered number and the inevitable conclusion would be that due inquiry and search had not been made. But having regard to the fact that on at least two occasions in the course of her evidence the appellant said that the number had proved to be incorrect, that on those occasions no objection was raised and strict proof was not then insisted upon, it would be wrong now to dispose of the case on that single ground. If, as the learned trial judge thought and as was virtually conceded before us, there was evidence of due inquiry and search by the plaintiff the only appropriate course for us to follow is, in my opinion, to direct a new trial.

[30]

Mr. Taylor contended, however, that it was not sufficient for the plaintiff to give evidence warranting the conclusion that she had been unable to establish the identity of the vehicle because the real question was whether due inquiry and search had failed to establish the identity of the vehicle. For this he relied upon the judgment of the Full Court of New South Wales in Blandford v. Fox [1] , affirmed by this Court [2] , and particularly upon a statement of Jordan C.J. [3] . This statement was as follows: "The conditions of the coming into existence of the new cause of action against the nominal defendant are - (1) there must have been death or bodily injury arising out of the use of a motor vehicle, (2) this must have occurred in such circumstances that some person could have enforced a claim for damages against the owner or driver in respect of the death or injury, (3) there must have been due inquiry and search for the purpose of identifying the motor vehicle, and (4) it must have been impossible thereby to establish its identity." [3] . If, as it was argued, this statement means that proof that the identity of the vehicle cannot be established involves proof step by step of the result of each inquiry that lay behind the answer to the plaintiff's inquiries from the police, I regard it as inconsistent with that part of the judgment of the Chief Justice in this case which points out that the first element in the condition that the identity of the motor vehicle cannot after due inquiry and search be established relates to the inability of the plaintiff and those identified with her to establish the identity of the vehicle before action brought. In this case it has been sought to make proof of the result of the police inquiries necessary for proof of the element that there exists inability to establish identity. This, for the reasons given by the Chief Justice, is not what the section requires. Furthermore, in this case where it was not in issue that there was evidence fit to go to the jury of due inquiry and search notwithstanding the absence of any evidence of police inquiry and search it cannot be correct to treat the result of the police inquiry and search as something the plaintiff had to establish to make a case that the identity of the vehicle had not, after due inquiry and search, been established.

[33]

The plaintiff's declaration alleged, inter alia, that "the plaintiff has made due inquiry and search to establish the identity of the said motor vehicle but notwithstanding such inquiry and search has been unable to establish its identity". The defendant's second plea was a specific traverse of this allegation. The plaintiff joined issue. At the trial the plaintiff gave evidence of inquiries she had made. The learned trial judge said he was disposed to say that there was enough evidence to enable the jury to find that the plaintiff had made due inquiry and search. And the plaintiff, in answer to the question "Were you yourself, from your own enquiries, able to identify the vehicle?", answered "No". There was therefore a case to go to the jury on the issue raised by the pleadings. The plaintiff had given evidence, considered by his Honour to be sufficient, that she had made due inquiry and search. She had given evidence that, notwithstanding such inquiry, she had been unable to establish the identity of the vehicle. It was a mistake to approach the question of the admissibility of evidence as if the issues for trial were other than they were. If the parties did so approach the matter, as it was suggested to us they did, this may have created some embarrassment for the trial judge. It is said that the pleadings were disregarded at the trial. They should not have been. This issue joined between the parties was one of the issues which the jury were empanelled to try, and which they were sworn to try. It was quite explicit. And, although this issue was apparently lost sight of, no other issue was formulated. As a result, confusion occurred; and in it the defendant's counsel was successful in certain objections to evidence, which could not have properly been sustained even if the relevant issue had been formulated according to the impersonal form of the statute. The order of this Court for a new trial of the cause will not prejudice the right of either party to move the Supreme Court for a repleader. The defendant may thus, if so advised, contend that the declaration to which he pleaded is defective and seek belatedly to demur. I would, however, add that, in my view, on a declaration alleging due inquiry and search, but not alleging by whom the inquiry and search were made, it might often be proper to require particulars to be given; for the statutory provision can obviously lend itself to false claims. In the present case, however, as I read the declaration, it gave some particulars, in that it stated who made the inquiry and search. I do not follow the view that because it descended to this particularity it became demurrable.

[34]

The motive of defendant's counsel in taking his objections to evidence was apparently a hope that he would somehow force the plaintiff to call a particular policeman, whom he wished to cross-examine, and from whom he hoped to get some evidence tending to support a contention that the plaintiff's story that a motor vehicle caused her fall from her horse was fictitious. But, even if the pleadings had taken a different form, the plaintiff ought to have been allowed to prove the result of her inquiries of the police. A plaintiff relying on the section must establish that there was due inquiry and search. He can prove the result of any inquiries he himself made. But a plaintiff who employs an agent, for example a solicitor or a private inquiry agent, to make inquiries for him, cannot give evidence of the result of his agent's inquiries. The agent must do that himself. He may be called, or he may, in accordance with the section, make an affidavit. In this case anyone who had inquired on behalf of the plaintiff or in the plaintiff's interest would have had to prove the result of his own inquiries. But no policeman was the plaintiff's agent or acting in her interest. Police officers may properly refuse, and sometimes do refuse, to concern themselves with purely civil disputes. In cases like this, where it is alleged that a motor vehicle did not stop after an accident, the police conduct inquiries because an offence is alleged to have been committed. They are then acting as policemen, not as inquiry agents for an intending plaintiff. I entirely agree with Owen J. that, in a case such as this, the making of a due inquiry and search must ordinarily involve an inquiry of the police and a communication to the police of all relevant information; and I think too that this may be appropriately expressed as seeking "the assistance of the police". Nevertheless, the plaintiff inquired of the police, not by the police; and certainly not by any particular policeman. Furthermore, if inquiries be made of the police - in the general sense of the police force or organization, as distinct from a particular individual policeman - an official written reply from the police department sent to the querist is admissible to prove the result of his inquiry. If a nominal defendant wishes to prove any facts on which he relies, including information given to the police, he must do so by admissible evidence, not by the hearsay evidence of a policeman. Some confusion seems to have arisen in this case between hearsay evidence, properly so called, and direct evidence the result of inquiries made by the plaintiff in the course of the inquiry and search required by the Act.