Davis v Nominal Defendant

District Court of NSW|2008-03-18

CITATION: Davis v Nominal Defendant [2008] NSWDC 97 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION: District Court Civil Jurisdiction

DECISION: Leave granted to the plaintiff to commence proceedings out of time

Motor Accidents Act 1988: s 40(2), s 52 LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 33 Road Transport (Vehicle Registration) Act 1997: s 8(1)(d)

Applin v The Nominal Defendant [2004] NSWCA 217 Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946F-G Diaz v Truong [2002] NSWCA 265 General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 at [8] and [10] CASES CITED: Guest v Southern (NSWSC, 22 September 1995, unreported) Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 Robertson v The Zinc Corporation [2005] NSWCA 372 Russo v Aiello [2003] HCA 53

PARTIES: Steven Davis by his tutor Samantha Davis (Plaintiff) The Nominal Defendant (Defendant)

COUNSEL: Mr A Lidden SC and Ms E Welsh (Plaintiff) Mr K Rewell SC (Defendant)

SOLICITORS: Brydens Law Office (Plaintiff) TL Lawyers (Defendant)

The proceedings and the issues

Steven Davis was only six when he suffered severe injuries after falling off the rear of a 'quad' motorbike being driven on 'road-related land' by Lloyd Burns, its owner. The accident occurred on 28 September 1997. The motorbike was unregistered and uninsured. No claim was made by or on behalf of Steven Davis until 2 March 2005, some 7½ years later. His tutor now applies for leave to commence proceedings out of time against the Nominal Defendant, under s 52(4) of the Motor Accidents Act 1999.

Steven Davis is only able to bring an action for the recovery of damages against the Nominal Defendant in respect of his injuries if they were caused in the use or operation of the uninsured quad motorbike on a road, and the motorbike was at the relevant time capable of registration, to enable its lawful use or operation on a road in New South Wales: s 33 of the Motor Accidents Compensation Act 1999. However, the court must not grant him leave to commence proceedings out of time unless a full and satisfactory explanation for the delay has been provided: s 52(4B)(a) of the Motor Accidents Act 1999.

The Nominal Defendant made a number of concessions. It was not disputed that Steven has at all relevant times been incapable of giving instructions. Nor was it disputed that the accident occurred on a road, it being conceded that it took place in a road-related area, that being sufficient for the purposes of s 33(1) of the Motor Accidents Compensation Act 1999. It was also conceded that the total damages likely to be awarded in any action by Steven Davis satisfy the statutory threshold required under s 52(4B)(b) of the Motor Accidents Act 1999. (In my view, that concession was not actually required having regard to the fact that Steven remains legally incapacitated: s 52(4C).) The Nominal Defendant did not allege any actual prejudice by reason of the delay, and relied only upon the so-called principle of presumptive prejudice. Nor did it rely on any delay after the lodgement of Steven's claim on 2 March 2005.

The Nominal Defendant opposed the application for an extension of time. It said firstly that the uninsured quad motorbike was never capable of registration. Alternatively, the explanation provided for the delay was neither full nor satisfactory. Alternatively, the court should exercise its discretion to refuse an extension of time by reason of the presumptive prejudice to the Nominal Defendant arising by reason of the long delay on the part of Steven Davis or his tutor in lodging his claim.

The issues for determination were, therefore: 5.1 Whether the application is futile because the motor vehicle was not capable of registration at the relevant time. 5.2 Whether the explanation for the delay was full and satisfactory. 5.3 Whether the application should fail by reason of prejudice to the defendant arising from the delay.

The relevant circumstances 6. In September 1997 Steven Davis, aged 6, was living in a cottage at 165 Wilson Drive, Balmoral Village, situated in a largely rural area between Mittagong and Picton, with his parents, Rodney and Samantha Davis, and his brothers, including an older brother, Jason, then aged 8. The owner of the quad motorbike, Lloyd Burns lived with his family on a 5-acre block of land about 3 kilometres away at the other end of the village. He was a friend of Steven's father, Rodney, and they had known each other for some 14 years. Rodney Davis was building a racecar for Mr Burns, who visited the Davis' home on a frequent basis to review progress and lend a hand.

The quad motorbike was a petrol-operated motorbike that consisted of a chassis on four wheels, a motorcycle engine, handlebars, a single motorcycle saddle seat and metal racks at the front and rear. The quad motorbike no longer exists and as far as the tutor knows, there are no photographs of it. The precise model and year of manufacture are not known. There was some suggestion it may have been a second-hand Kawasaki. It had a single headlight, a taillight, a brake light, and according to Mr Rodney Davis, a horn. Whilst it is evident that Mr Burns used the motorbike largely for recreational purposes, he did reside on a farm on which there were some animals, including chooks, some ponies and a cow. He had also been observed to use the motorbike for other purposes, on and around his farm, including towing garbage and carrying rocks.

On the day of the accident the Davis family had a lunch for various neighbours including the Burns family. Lloyd Burns had arrived earlier in the morning, on his quad motorbike, and he and Rodney Davis had worked on the racecar in the shed. The rest of the Burns family, Mrs Burns and 4 children, arrived later for lunch, by car. After lunch, the fathers returned to the shed to work on the racecar until 3.00pm when Rodney Davis went inside to watch the Rugby League Grand Final. Lloyd Burns, who was not interested in football, took four of the children, including Steven, for a ride on the quad motorbike. During the course of the ride, when the motorbike went over a large bump, Steven was thrown off and was injured.

Steven's parents first learned of the accident when Jason came running into the house in a distressed state and said, "Steven's hurt". They went onto the verandah and saw Lloyd burns carrying Steven in his arms. Steven was unconscious. Steven was rushed to Bowral Hospital by car, and from there was soon after conveyed by a care flight helicopter ambulance to the Children's Hospital at Randwick. His mother, Samantha Burns, went with him. He remained there for 10 months, suffering from severe brain damage, for care and treatment.

Whilst at Bowral Hospital, Rodney Davis asked Lloyd Burns what happened. He was told:

"I was only going slow. I wasn't going fast. I just hit a bump. I didn't see it. When I hit the bump Steven just fell off. He was on the front sitting on the rack. I'm sorry. I'm sorry. I'll do anything I can to help."

Rodney Davis asked Lloyd Burns why he had left the Davis' property, it having been his understanding that the ride was only to occur around the Davis' yard. Lloyd Burns said he had to go back up the track to his place to check something. He asked what it was, but never got an answer.

Mr and Mrs Davis did not seek legal advice at that stage as to Steven's legal rights in respect of the accident and his injuries. In his affidavit of 22 August 2005, Mr Rodney Davis gave this evidence:

After the accident, Steven spent a long time in hospital. He was in intensive care for 4 weeks. After a while there in intensive care the staff started to put some pressure on me and my wife to sue Lloyd. They said it was very expensive in hospital and we should do something.

Lloyd Burns was my friend at that stage. I knew my family was destroyed and I did not know anything about the Nominal Defendant. I just thought that if I sued him he would lose his house and his family would be destroyed.

I knew that the bank owned most of his house anyway and I could not see any point in it just to get the hospital paid some money that they were owed. I did not seek any legal advice and I regret that now.

Due to the fact that I was not aware that we could make a claim against anyone except for Lloyd Burns I did nothing about seeing a solicitor and did not seek any advice at all about the accident until much later on.

Mrs Samantha Davis, in her affidavit of 12 August 2005, gave this evidence:

After Steven's original accident I did not know that anything could be done to bring a claim for him. I realised that Lloyd Burns was at fault but I knew the medical bills were enormous and even if we sued Lloyd and he lost his share of his house only a small amount would be able to be recovered and this would go nowhere near even paying the hospital bills. I could not see any point in doing this because Steven would never see any of the money. The hospital would just get it. I was also a bit upset with the Childrens Hospital because the last thing we needed in the early days was a lot of pressure for them to try and get money for them when our hands were full dealing with Steven's problems.

It was the belief of Mr and Mrs Davis, in my view honestly held, that any legal rights Steven had in respect of the accident lay against Lloyd Burns, and having regard to the state of their knowledge as to his limited assets, that only the hospital would benefit from them taking any legal proceedings against him. Both Mr and Mrs Davis were cross-examined extensively as to their ignorance of the legal position and the wisdom of not seeing a solicitor. Both were adamant, however, that they could see no point, as they did not wish to sue Lloyd Burns.

It wasn't until late 2002, just over 5 years later, that an incident occurred at the Children's Hospital in which Steven nearly died as a result of a nurse incorrectly injecting the drug Baclofen directly into his body rather than into a gradual release pump that the parents sought legal advice.

As a result of this incident, Steven went into a coma and had to be admitted to hospital for two weeks including three days of intensive care. He was close to death. The parents discussed the situation and decided to seek legal advice. Even then, they were only intent upon ascertaining what Steven's legal rights were as against the hospital, still being ignorant of any possible legal rights as against the Nominal Defendant arising out of the original motorbike incident.

Thus it was that Mrs Davis went to see a solicitor for the first time on 2 December 2002, when she and Steven had a meeting with Mr Lee Hagipantelis, a solicitor then working for the law firm, Brydens. Mr Davis did not attend. Mrs Davis told Mr Hagipantelis that Steven was receiving treatment at the Children's Hospital and related the circumstances of the Baclofen 'poisoning incident'. In her affidavit she said she remembered telling Mr Hagipantelis that Steven was a spastic quadriplegic as a result of a quad bike accident. She was insistent, however, that her instructions were limited to the investigation of a possible medical negligence claim against the hospital and she was not asked about, nor did she mention the circumstances of the original accident, and it did not occur to her that it might be relevant. The Nominal Defendant was not raised at that meeting. The existence of the Nominal Defendant was first raised by Mr Lidden of counsel in a later conference when she was asked, for the first time, about the circumstances surrounding the quad motorbike accident.

Mr Hagipantelis corroborated Mrs Davis' version of the discussions at the meeting on 2 December 2002, at Liverpool. He took some four pages of handwritten notes in which the only reference to the circumstances of Steven becoming a quadriplegic was a note that he had suffered a head injury in 1997 when he fell off a 'trike' at home. He did not, however, ask any questions about this incident, or what the trike was. It was suggested to Mrs Davis in cross-examination, that she misled Mr Hagipantelis to protect Lloyd Burns, but she adamantly denied that suggestion. There is, in my view, no reason to believe otherwise, and I am unable to accept that her use of the word 'trike' was designed to deceive. That the circumstances of quad motorbike accident was not raised at this meeting was confirmed by Mr Hagipantelis, and it has been established to my satisfaction that this occurred as a result of continuing ignorance on the part of Mrs Davis rather than any deceit on her part. I find that there never was any attempt to protect Mr Burns, and most particularly no attempt to protect him from the consequences of driving an unregistered motor vehicle, if that was the suggestion. By the time of this meeting, the friendship with Mr Burns was over, and any desire to protect Mr Burns had long since gone. I accept that the only motivation that drove Mr and Mrs Davis was a desire not to 'ruin' Mr Burns financially for the sake only of the hospital fees.

At the time of verifying their affidavits, Mr and Mrs Davis were not as clear as they might have been about the timing of the subsequent meetings with the lawyers, and this was the subject of some criticism by counsel for the Nominal Defendant. To my mind, nothing turns on this in so far as the critical issues for determination are concerned, as the true order of events emerged from the evidence of Mr Hagipantelis. It is appropriate, at this point, to record that no criticism was made by the Nominal Defendant of the fact that neither Mr Lidden nor Mr Bryden gave evidence as to these subsequent meetings.

Following the meeting on 2 December 2002, Mr Hagipantelis took various steps to further the investigation of a claim against the hospital, and a report was obtained from a medical expert going to the liability of the hospital. A brief was prepared and delivered to Mr Lidden, and a conference arranged. A meeting took place on 17 September 2003 at Mr Lidden's chambers, and again Mrs Davis attended with Steven, but without Mr Davis. It appears that the grandparents and a brother also attended. Mr Ian Bryden, solicitor, attended to instruct, but only took brief notes. According to Mrs Davis, the discussion was again limited to the Baclofen pump episode and a claim against the hospital, and there is no evidence to the contrary.

Mr & Mrs Davis had no further meetings with their lawyers until 15 December 2004, some 15 months later. There is little evidence as to what occurred during the 1¼ years between these conferences, or why it took so long before another conference was organised. Mr and Mrs Davis were not, however, cross-examined as to the question of delay in that period.

At any event, further meetings took place on 15 December 2004, again at the chambers of Mr Lidden. Again, Mr Rodney Davis did not attend, but Mrs Davis did, together with the grandparents. Mr Bryden was the instructing solicitor, but there are no notes from those conferences on the solicitors' file. It was at this conference that the existence of the Nominal Defendant first arose. According to Mrs Davis, she was asked for the first time what had happened to Steven to render him a quadriplegic and she told Mr Lidden about the accident involving the quad motorbike. Mr Rodney Davis said in his first affidavit (paragraph 50):

"The first time I knew anything about the Nominal Defendant or the fact the Nominal Defendant would be liable for Lloyd Burns's negligence if the accident happened on a road related area was when my wife came home after a conference with Mr Lidden."

Soon after Christmas further conferences took place, which Mr Davis attended, as did Mrs Davis, Jason Davis and the grandparents. These meetings were originally scheduled for 19 January 2005, but did not occur until 29 January 2005. Mr Hagipantelis was on leave during that January. It was only at these conferences that Mr Davis fully appreciated the circumstances under which the Nominal Defendant could be sued, the need to lodge a claim and the consequences of time limits and like issues. Instructions were given to proceed against the Nominal Defendant, and to make such application as might be necessary.

Thereafter, affidavits were prepared and a Claim Form was prepared and completed following a conference with Mrs Davis on 25 February 2005. This was subsequently lodged with the Nominal Defendant on 2 March 2005. Various other formal steps were also undertaken on that day, including a report to the Liverpool police, and the service of statutory notices on Mr Lloyd burns, as owner and driver of the unregistered quad motorbike.

Is the application for leave to commence proceedings out of time futile? 25. An action for the recovery of damages in respect of injury caused by the fault of the owner or driver of an uninsured motor vehicle may be brought against the Nominal Defendant: s 33(1) of the Motor Accidents Compensation Act 1999. For the purposes of that section, motor vehicle means a motor vehicle that was required to be registered to enable its lawful use or operation on a road in New South Wales, and that was capable of registration at the relevant time: s 33(5)(b).

The parties were unable to agree on what the relevant time was, because the original wording of s 33(5)(b) was amended by the Motor Accidents (Lifetime Care and Support) Act 2006, and it was not clear whether the amendment applied retrospectively. Under the original wording the requirements of the subsection would be satisfied if 'immediately before the accident occurred' the motor vehicle was capable, or would 'following the repair of minor defects' have been capable of being so registered: see Applin v The Nominal Defendant [2004] NSWCA 217 at [8]. However, under the amended provisions the requirements of the subsection would be satisfied if the motor vehicle was capable of registration, or was 'with minor adjustments', capable of registration 'at the time of manufacture'. According to the Second Reading Speech, the amendment was made necessary because the previous wording of the legislation was 'being interpreted by the courts in a manner inconsistent with the intention' of the Nominal Defendant scheme. Whether the amendment was effective is a question for another day because for reasons I will come to, in deciding the present application the time at which the quad motorbike was or was not capable of registration is not critical to the determination of the question of futility.

The issue as to the relevant time aside, it was common ground between the parties that the requirements of s 33(5)(b) would also be satisfied if the quad motorbike was capable of conditional registration under the Motor Traffic Regulations, or was capable of qualifying for the issue of an unregistered vehicle permit (UVP) for the use of an unregistered registrable vehicle under s 8(1)(d) of the Road Transport (Vehicle Registration) Act 1997.

The Nominal Defendant contended that the plaintiff's application for leave to commence proceedings out of time is futile because this quad motorbike was not capable of satisfying the requirements of s 33(5)(b) on any basis. It was the plaintiff's case that the evidence on this issue was not conclusive, and that on the facts there is a justiciable issue which should be left for determination at trial: Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946F-G.

Much of the evidence and argument at the hearing centred around whether the Roads and Traffic Authority (RTA) would, on application, have issued an unregistered vehicle permit (UVP) to Lloyd Burns in respect of his quad motorbike. This issue was the subject of conflicting expert evidence, and argument as to the meaning, intent and application of the RTA Policies for Customer Service Officers issued to Customer Service Officers (CSOs). Section C16 of that document, headed 'Unregistered Vehicles & Unregistered Vehicle Permits (UVPs)' was tendered on behalf of the plaintiff (Exhibit A).

This section of the RTA policies contains the following relevant clauses as to the issuing of UVPs by CSOs:

C.16.1 When to use this policy Use this policy when you need information about unregistered vehicles and UVPs.

C.16.1.1 Purpose The purpose of this policy is to define which vehicles may be driven without registration, where and when they may be driven and the rules governing the issue and use of UVPs.

C.16.1.1 Authorisation Motor Traffic Regulations 34 and 53A.

C.16.5 Unregistered Vehicle Permits UVPs are issued for unregistered vehicles that the operator only wants to drive or ride for a specific purpose. UVPs are not intended to cover the regular use of a vehicle on a public street, and must not be regarded as a substitute for full registration except for specific vehicles. Twelve month UVPs are mainly issued to primary producers and for certain items of roadwork and earthwork plant…

UVPs can be issued for a period of seven days, or for any period from one to twelve months.

In cases where a customer requires a journey from point A to B and a return journey, where appropriate CSOs may issue the two journeys on a single UVP. For example, a farmer taking a tractor to town for repairs…

C.16.6 Issuing UVPs To get a UVP the customer must provide: ● POI ● a safety check report…

When a CSO issues a UVP they must ask the customer to explain how they intend to use the unregistered vehicle and record the conditions under which the customer may use the vehicle…

The Nominal Defendant argued that there was no evidence that the quad motorbike owned by Mr Lloyd Burns satisfied the requirements for the issue of a UVP. It is insufficient that a quad motorbike of this type might have been capable of qualifying for a UVP on the application of anyone. It needed to be shown that a UVP would have been issued for this quad motorbike on the application of this owner. There was, however, no evidence adduced as to a specific purpose for which the quad motorbike could be put that would fall within the policy. There was no evidence, for example, that Mr Lloyd Burns was a primary producer; indeed it was the evidence of Mr & Mrs Davis that he did not use his property for agricultural purposes.

In my view no conclusive determination of that issue is possible in the context of the present application. The issue remains equivocal. It is entirely possible that at trial evidence could emerge, for example from Lloyd Burns, or from an officer from the RTA, that a UVP would have been issued.

It was telling that the Nominal Defendant failed to call Mr Lloyd Burns to say otherwise, notwithstanding his availability, and did not read the affidavit its representatives had obtained from him following an interview with him. There is also conflicting evidence as between the experts on this issue, which the plaintiff might wish to test at trial by way of cross-examination.

In my view, this is not a case where it is apparent the contention of the Nominal Defendant is so obviously tenable that it must succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 at [8] and [10]. For these reasons, I conclude that there is a clear justiciable issue that should be left for determination at the trial, such that the plaintiff's application for leave to proceed out of time is not futile.

Was the explanation provided for the delay full and satisfactory? 35. The court must not grant Steven Davis leave to commence proceedings out of time unless he has provided a full and satisfactory explanation for the delay: s 52(4B)(a) of the Motor Accidents Act 1999. Before an explanation can be considered to be full and satisfactory, there must have been a full account of the conduct, including the actions, knowledge and belief of the claimant. Nor is the explanation satisfactory unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay: s 40(2) of the Motor Accidents Act 1999.

It was common ground between the parties that the running of time was not postponed by reason of Steven's age: Diaz v Truong [2002] NSWCA 265 at [91]. There was debate, however, as to whether any shortcoming in the satisfactoriness of the explanation for the delay can be attributed to a claimant suffering from incapacity due to causes other than minority, such as brain damage. Reference was made to the judgments of Studdert J in Guest v Southern (NSWSC, 22 September 1995, unreported), Hodgson JA in Diaz v Truong [2002] NSWCA 265 at [95] - [96] and of Santow JA in Manderson v Ellis [2002] NSWCA 289 at [16] - [18]. As I understand the submissions of senior counsel for the plaintiff, the issue remains open. I consider, however, that I should follow the approach of Santow JA, that being the most recent considered opinion of the Court of Appeal, and with which the other judges agreed, so that application of the test in s 40(2) of the Motor Accidents Act 1999 requires focus on the claimant's explanation, but including under 'claimant' the persons in charge of his affairs, in this case Steven's parents: Manderson v Ellis [2002] NSWCA 289 at [18] and [21].

I turn then to consider whether the explanation for the delay between September 1997 and March 2005 provided by the parents was full and satisfactory. The Nominal Defendant contended that it was not. A number of submissions were made: ignorance of legal rights might be a satisfactory explanation, but these parents were not completely ignorant, and were aware within days of the accident that they had legal rights. They consciously chose, however, not to obtain clarification of those legal rights for 5 years, and chose instead to act on their own perception of their legal rights. This was not the conduct of reasonable persons.

The Nominal Defendant further submitted that even later, when the parents did consult a lawyer, they shunned the opportunity for clarification of their rights, at no additional cost. Mrs Davis in fact chose to deliberately mislead the solicitor, who mistakenly concluded that Steven had no legal recourse against anyone in respect of the fall from the motorbike.

Reliance was placed by the Nominal Defendant on the decision in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104, where it was said that a deliberate decision to allow a statutory limitation period to expire would be a 'powerful factor' against the grant of leave: at [91]. I have no doubt that if this application was for leave to bring proceedings out of time against Lloyd Burns it would be bound to fail. The parents clearly chose not to sue him. But this application is made for leave to bring proceedings out of time against the Nominal Defendant, and the contention made on behalf of this plaintiff is that his parents were ignorant of their rights in respect of that defendant.

The principles to be applied to the concept of a 'full and satisfactory explanation' were comprehensively considered and discussed by the High Court in Russo v Aiello [2003] HCA 53. Although it involves a question of fact, the question is 'an intellectual construct involving a value judgment': at [27]. A 'full' explanation refers to the conduct bearing upon the delay, and the state of mind of the claimant (or, as in this case, the parents): at [4]. What would constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes explained in the Act: at [5]. The legislation itself provides minimal guidance: at [51]. What the Act requires is justification for the delay, not demonstration that the delay caused no harm; there is no exhaustive list of possible justifications. The focus is upon justifying delay, rather than excusing it: at [7]. The court must be brought to a state of satisfaction that the claimant does not have a full and satisfactory explanation: at [10].

I am satisfied that the explanation provided by the parents involved a full account of their conduct, including their actions, knowledge and beliefs from the time of the accident until March 2005. There is no other material that could have been put forward to explain the delay. They did not shy from the rationale for their behaviour. Quite simply they acted in ignorance of their legal rights as against the Nominal Defendant. The critical question in this case is whether their decision to act on their own perception of their legal rights, and their failure to obtain clarification of those rights, was justifiable conduct on their part, in the sense that reasonable persons in their position would have failed to comply with the duties to comply with the time limits imposed by the legislation.

As I have already indicated, I reject totally the suggestion that the beliefs held by the parents were other than honestly held, or that Mrs Davis in any way deliberately concealed facts from the solicitor, or set out to deceive him.

Clearly the parents acted foolishly, in hindsight. In my view, however, their conduct was innocently motivated by ignorance of Steven's legal rights, and not by recalcitrance. They simply didn't seek legal advice because they didn't know they needed to. This was justification for the delay.

That innocent state of ignorance persisted from the time of Steven's accident, through till the lodging of the claim on 2 March 2005. It persisted through the period from the first legal conference on 17 September 2003 until the conference attended by Mr Davis with Mr Lidden on 29 January 2005, when the facts emerged, and the parents were fully advised as to Steven's rights against the Nominal Defendant. This further delay was, therefore, also justified.

The parents were ordinary, unsophisticated people, with a natural sympathy for the position of Lloyd Burns, whom they honestly believed did not have assets sufficient to justify bringing proceedings, in ignorance of the rights Steven had as against the notional existence of a nebulous statutory creation such as the Nominal Defendant. Once they did become apprised of the true position, they had no hesitation in proceeding against the Nominal Defendant. Indeed the instructions to do so were given on the same day as they obtained a full conceptual appreciation of the significance of the rights created as against the Nominal Defendant, namely 29 January 2005. It cannot be said that there was any unreasonable delay beyond that date until 2 March 2005.

In my view reasonable persons in the position of these parents would have acted in the same way and failed to comply with the duties imposed by the legislation as to time limits. For all these reasons I am satisfied that the explanation they provided was both full and satisfactory. I find, therefore, that a full and satisfactory explanation for the delay has been provided.

Presumptive prejudice 47. The Nominal Defendant did not allege any actual prejudice by reason of the delay, but it did rely only upon the so-called principle of presumptive prejudice arising during the period from the accident until 2 March 2005. It is true that this is a relatively long period of time, and inevitably the quality of the evidence will be diminished accordingly. However, the Nominal Defendant is entitled to a fair trial, not a perfect trial: Robertson v The Zinc Corporation [2005] NSWCA 372, and no particular prejudice has been identified: Nationwide News Pty Ltd v Naidu [2007] NSWCA 377.

This is not a case in which the Nominal Defendant is adversely affected by the delay in terms of its ability to investigate the accident. It has located the owner and driver of the unregistered vehicle and has the benefit of his account. The only other witness of significance was Jason Davis, who has provided an affidavit. There is no suggestion that the relevant evidence as to medical history is unavailable, or that the assessment of damages will be adversely affected by the delay. In short, whilst some presumptive prejudice must be assumed, it is minimal. In my view, having regard to the broad considerations of justice, in a relative sense, as between these parties, I am satisfied that it is fair and just that leave should be granted to Steven Davis to commence proceedings out of time against the Nominal Defendant.

Disposition 49. I therefore make the following orders:

49.1 Leave is granted to the plaintiff to commence proceedings out of time against the Nominal Defendant.

49.2 Costs are reserved, but will follow the event unless either party applies, within 7 days, for some other order.

49.3 The exhibits are to remain in court, but may be released after 7 days in the absence of any application by a party to the contrary.

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At a glance

Court

Decision date

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Judgment (77 paragraphs)

Parties

Cases Cited (8)