Kirk v Transport Accident Commission [2019] VCC 1126

4 I note that the questions for the jury were agreed upon by both counsel.

5 Following the jury's verdict, the plaintiff makes application under s96(1) of the Transport Accident Act 1986 ("the TA Act") for the recovery of damages.

(1) Where a person is injured or dies as a result of a transport accident involving the driving of an unidentified vehicle or an unindemnified vehicle, or a collision between a pedal cycle and a stationary unidentified or unindemnified vehicle, a natural person who could have obtained a judgment against the owner or driver of that vehicle may recover in proceedings against the Commission a sum equivalent to the lesser of -

(a) the amount for which the person could have obtained judgment against the owner or driver of that vehicle; or

(b) the amount for which the Commission would have been liable if that vehicle had been identified and subject to the indemnity under section 94."

7 Section 96(2) provides that, in circumstances where an unidentified vehicle is involved in a transport accident, an injured person can only recover damages in proceedings against the Transport Accident Commission ("the TAC") if:

(a) the injured person, within a reasonable time, provides the TAC with a notice of the claim detailing:

• date and place of the accident
• the general nature of the injury
• a short statement of the circumstances of the accident; or

(b) where the notice is not given as required by paragraph (a), the injured person satisfies the Court that the TAC has not been materially prejudiced in its defence by any failure to give notice at the proper time, or by insufficiency in the notice.

8 The issues for determination are whether the plaintiff:

(a) provided notice as required under s96(2)(a) within a reasonable time after he knew the vehicle was an unidentified vehicle; or

(b) where notice is not given within a reasonable time under s96(2)(a), the plaintiff can satisfy the Court that the TAC has not been materially prejudiced in its defence to the proceedings by any failure of the plaintiff to give notice at the proper time, or by any omission or insufficiency or defect in the notice.

9 The transport accident occurred on 17 May 2014 when the plaintiff was stationary at lights in Skye Road, Frankston, which were red. The plaintiff's evidence at trial was that, when the lights changed to green, he went to go forward and his vehicle stalled. His vehicle was hit in the rear by another vehicle. The plaintiff's evidence was that the other vehicle went around him and left the scene. There were no CCTV cameras in the area or any identified witnesses. There was no useful information to enable the driver to be located. The plaintiff described the other vehicle as a Toyota Ute with a white cabin. At trial, the jury were taken to a view of the accident site.

10 The plaintiff's evidence was that the rear of his vehicle was damaged. The plaintiff accepted that the impact of the collision did not result in his vehicle moving forward but that there was damage to the rear of his vehicle. Mr Paul Hallo, a friend of the plaintiff's, gave evidence at trial before the jury that he saw the plaintiff's vehicle and saw it had damage to the rear.

11 The plaintiff said that he did not get the damage repaired. It was accepted that the plaintiff knew the other vehicle was unidentified following the transport accident. The plaintiff reported a whiplash injury and expressed neck pain ever since the transport accident. He consulted Dr Tadros, his general practitioner, on the day of the accident, and his evidence was that he reported that being in a car accident, thought he had whiplash, and hurt his neck. The plaintiff sold his vehicle to a wrecker on 1 September 2014. The wrecker's records were before the Court at trial.

12 On 5 March 2015, the plaintiff lodged a TAC Claim Form with the TAC, which was accepted by way of notice dated 5 March and 20 March 2015.[1]

13 On 18 March 2015, the plaintiff consulted Arnold Thomas and Becker, solicitors. Shortly after that time, the plaintiff attended the police and made a report of the accident. It was not clear what date the plaintiff reported the accident to the police, as the report did not record the date on which the plaintiff attended the police station and made the report.

14 The TAC forthwith made enquiries of Dr Tadros and confirmed the clinical notes that the accident had happened as alleged.[2]

15 On 31 January 2017, the plaintiff's solicitor wrote to the TAC seeking a serious injury certificate and thus alerted the TAC that common law proceedings were likely.

16 On 16 February 2017, the TAC granted a serious injury certificate.

17 On 7 July 2017, the plaintiff's solicitor wrote to the TAC informing it of the plaintiff's intention to make a claim pursuant to s96. The notice did not include the particulars required by s96(2)(a); however, the TAC already had the particulars by reason of the plaintiff's claim for compensation.

18 On 15 November 2017, the plaintiff's solicitor provided a notice which fully complied with the requirements of s96(2)(a) of the Act.

19 Counsel for the plaintiff submitted that the jury findings are consistent with the jury having heard the evidence of the plaintiff, Dr Tadros, Mr Hallo, Ms Denman and Ms Cairo, and concluded that the plaintiff had been involved in a transport accident on 8 May 2014, as alleged, and that he had suffered injury to his neck, which led to serious consequences.

Did the Plaintiff provide notice to the TAC within a reasonable time?

20 I must determine whether the plaintiff gave notice required by s96(2)(a) within a reasonable time after he knew that the vehicle involved in the motor vehicle accident was an unidentified vehicle.

21 It was accepted that at the time of the accident the plaintiff knew the other vehicle was unidentified as it left the scene.

22 It was accepted by counsel for the plaintiff that the plaintiff did not provide formal notice of his intention to recover damages against the defendant under s96(1) of the TA Act until the letter dated 15 November 2017 (exhibit "D"). Further, counsel for the plaintiff conceded that providing notice in July or November 2017 is not within a reasonable time.[3]

23 Counsel for the defendant submitted that the defendant was informed of all elements required of s96(2)(a) at the earliest on 7 July 2017, more than three years after the transport accident, even though the plaintiff engaged solicitors on 18 March 2015.

24 Counsel for the plaintiff submitted that the lodging of the TAC Claim Form on 5 March 2015 should be seen as having been made within a "reasonable time", particularly given the disability of the plaintiff and his lack of knowledge and understanding of both his injury and his entitlement to sue. Counsel for the plaintiff submitted that the Claim Form provided the TAC with all requisite information required under s96(2)(a).

25 Counsel for the defendant submitted that, in the present case, a "reasonable time" means within at least two weeks of the transport accident, as was the case in Lakic v Transport Accident Commission,[4] where the plaintiff provided a signed Claim Form within a fortnight of a transport accident. Further, counsel relied upon Gillam v Incorporated Nominal Defendant,[5] where Adam J considered a similar provision in the Motor Car Act 1951. In that case, Adam J accepted that the reasons for the legislative requirement of early notice were:

"(a) to make possible investigation at the earliest possible moment, and (b) prevention of fraud which would be facilitated if a claimant were not as soon as possible tied to the grounds of his claim by such a notice. ... ."[6]

26 There was no suggestion in this case that the plaintiff was fraudulent. I shall consider whether the possible earlier investigations conducted by the defendant would have assisted the defendant further in my reasons.

27 Counsel for the plaintiff submitted, to secure indemnity under s96, the plaintiff must notify the TAC within a "reasonable time" after he knew that the vehicle was unidentified. This requires me to determine what a reasonable time is. Having determined what a reasonable time is, if I find that the plaintiff did not give notice to the TAC within that time, I must determine whether the lapse of time, since that time, has resulted in prejudice to the defendant.

28 I agree with the approach outlined by counsel for the plaintiff.

29 It was accepted that a reasonable time in the context of the current legislation has not been judicially considered. Earlier decisions of Walters v Incorporated Nominal Defendant[7] and Williams v Incorporated Nominal Defendant (Vic)[8] were decided before there was a requirement to establish a serious injury under s93 of the TAC Act.

30 In Jessup & Anor v Fremder,[9] Beach J, when considering what constituted "reasonable time", said:

"... reasonable time ... depends on the circumstances, and is therefore a question of fact."[10]

31 Based on the facts in this case, on one view, the plaintiff had no reason to believe that his injury might result in a serious long-term impairment of a body function until at least November 2014, and probably at least February 2015, when CT radiology was performed. The evidence was that the plaintiff reported neck pain, but it was not until November 2004 that his general practitioner, Dr Tadros, took the complaints of neck pain seriously. This was the evidence of Dr Tadros at trial. I accept the plaintiff had no diagnosis, nor understanding, of the nature of his problem until radiology was performed in early 2015. I accept that in November 2014 or, more likely, February 2015, the plaintiff had some understanding of the severity of his injury.[11]

32 Mr Jason Williams from the TAC gave evidence of the different treatment adopted by the TAC upon receipt of a s96 notice, as compared with a claim for compensation. Mr Williams said that it was usual for a notice under s96 to be given to the TAC between three to six months after a transport accident.

33 In Lakic,[12] Rush J considered the actual Claim Form used by Mrs Lakic, and determined that it contained the information required in accordance with s96 of the Act. Further, he said:

"... It could not be said that TAC has been materially prejudiced by any failure on the part of the plaintiff to provide notice ... ."[13]

34 Rush J noted that the Claim Form lodged by Ms Lakic placed the TAC on notice of the circumstances of the incident within a fortnight of its occurrence, provided details of the plaintiff's general practitioner and employment, and that police had attended the scene.[14] I note that the lodging of the claim form is not formal notice under s96(2)(a).

35 Counsel for the defendant submitted that the Claim Form in Lakic was significantly more detailed than the Claim Form lodged by the plaintiff in this case. A redacted copy of the Claim Form in Lakic was tendered in evidence for the purposes of this application. Counsel also submitted that as the Claim Form in Lakic was lodged within two weeks of the accident, two weeks is a "reasonable" time to provide notice.

36 In this case, the plaintiff did not work and as such, the Claim Form did not refer to any employment details. I note that the Claim Form for Ms Lakic contained greater detail in relation to Ms Lakic's employment. The information provided to the TAC in the plaintiff's Claim Form included the required information, and I note that it had more detail relating to the injury sustained by the plaintiff than that provided by Ms Lakic.

37 I do not accept that two weeks is what should be considered a "reasonable" time in assessing whether notice was provided in a reasonable time. In Lakic, counsel for the defendant conceded that the Claim Form provided to the TAC was pretty well contemporaneous with the motor vehicle accident.[15] His Honour was of the opinion that the evidence establishes that within reasonable time of the accident, the plaintiff provided to the TAC the details required under s96 of the Act.[16] His Honour was not required to assess what is a "reasonable" time.

38 In considering what amounts to "reasonable time", I take into account that the evidence of Mr Williams was that notice is usually given between three and six months, the plaintiff was under a disability, his lack of knowledge and understanding of both his injury and his entitlement to sue. I also note that the plaintiff had not sought legal advice until 2015.

39 I accept that that the plaintiff's TAC Claim Form had all the requisite information required under s96(2)(a) and when regard is had to the circumstances and the evidence, I am of the view that the plaintiff provided notice within a reasonable time.

40 Accordingly, I accept that by March 2015, the TAC had the information required in accordance with s96 of the TA Act and that the plaintiff had provided reasonable notice in accordance with s96.

41 In view of my finding that the plaintiff notified the TAC in "reasonable time", it is not strictly necessary for me to consider material prejudice; however out of an abundance of caution, I am satisfied that there is no material prejudice.

43 Counsel for the defendant submitted that the proper time for notice referred to in s96(2)(b) was within two weeks of the transport accident or, at the very least, a time prior to the plaintiff disposing of his motor vehicle on 1 September 2014. Had the defendant received notice before 1 September 2014, the evidence of Mr Williams was that the following would have occurred:

(a) the plaintiff's vehicle would have been examined to determine whether there was damage consistent with the description of the transport accident, which would have occurred within a couple of days or a week;

(b) the plaintiff would have been medically examined to test the veracity of his complaints of neck pain in the first six months following the accident;

(c) the defendant would have arranged for a biomechanical engineer to examine the plaintiff's car and assess the likelihood that when comparing the damage to the vehicle and the injury suffered by the plaintiff, the motor vehicle accident would have caused the injuries. Further, other enquiries would have been made, namely, interviewing the plaintiff and family members, and door knocks in the vicinity of the transport accident to identify any witnesses.

44 Counsel for the defendant referred me to a number of authorities which considered the issue of material prejudice.

45 Counsel for the plaintiff also referred me to the following Western Australian authorities:

• Hall v Motor Vehicle Insurance Trust.[19]

46 These authorities considered s29A of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), which provides:

"29A. Court may grant leave to proceed

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."

47 I have reviewed these authorities and I take the view that the circumstances in these cases were substantially different to the present case. I am of the view that in considering whether there is material prejudice, regard must be had to the circumstances and facts of each case.

48 Counsel for the plaintiff submitted that there is no actual prejudice suffered by the defendant. The question to determine is whether the defendant has suffered material prejudice by the plaintiff's failure to give formal notice within a reasonable time as required by s 96(2)(a). Adopting what was said by Tadgell J in Williams,[20] the prejudice must occur between the time at which the notice ought properly to have been served and the time at which it was actually served.[21] In this case, based on Mr Williams' evidence, at the earliest between mid-August and mid-November 2014. I have already determined it was appropriately served in March 2015 when the plaintiff lodged his Claim Form.

49 The TAC claims to have suffered prejudice in respect of two matters: first, a chance to investigate the circumstances of the accident, including the nature and extent of damage to the plaintiff's vehicle and any biomechanical conclusion that would result from such damage and, secondly, the lack of opportunity to assess the extent of the plaintiff's injury between May and November 2014.

50 In relation to the investigation of the circumstances of the accident, I accept that after 1 September 2014, the TAC could not pursue enquiries as the vehicle had been sold to a wrecker. By that time, it was clear there were no known witnesses to the accident, there was no CCTV footage available and the vehicle had been sold. All that was ever known was that a white Toyota utility had been involved. Mr Williams, in his evidence, conceded that by October 2014, the "trail was probably cold".[22] As I have found that reasonable time did not require notice to be served prior to 1 September 2014, there can be no material prejudice on this aspect. I also take into account that the plaintiff was a person under disability, as at 1 September 2014 his injury was undiagnosed, but appeared to be minor, and the plaintiff had not yet sought legal advice. I also take into account, that based on the evidence of Professor Teddy, neurosurgeon, the mechanism of injury was clear and injury could occur from even a relatively trivial impact. I consider that it is unlikely that there would have been a case for biomechanical evidence.

51 In respect to the second matter of early medical examination, the evidence of both the plaintiff and his general practitioner was that the plaintiff complained of neck symptoms from the time of the accident until Dr Tadros started taking his complaint seriously, which was November 2014. The defendant, at all times, has been able to obtain an opinion as to the aetiology of the plaintiff's neck complaints and, in fact, did so, and the opinion was given by Professor Stark at the trial. This matter could have been investigated by the no-fault team at the time the claim for compensation was made, but this did not occur. I note that the TAC contacted the plaintiff's general practitioner after the TAC Claim Form was lodged to determine whether the injury was consistent with what the plaintiff reported. The TAC did not refer the plaintiff for an independent medical examination until he was examined in April 2016. Accordingly, I take the view that there has been no material prejudice.

52 I take the view that the plaintiff gave notice within a reasonable time in the circumstances of this case. The Claim for Compensation was lodged after approximately ten months and, in accordance with Lakic, should be seen as satisfying the requirements of s96. I accept that there was no requirement for the plaintiff to serve notice prior to 1 September 2014 and that there was no material prejudice suffered by the TAC when notice was served.

53 Accordingly, I grant the plaintiff's application.

[2] Exhibit 4 and Transcript ("T") 633-634

[3] Plaintiff's written submissions at paragraph 11

[4] [2014] VSC 291

[5] [1958] VicRp 45; [1958] VR 280

[7] [1982] VicRp 55; [1982] VR 541

[8] [1986] VicRp 20; [1986] VR 169

[9] [2001] VSC 100

[10] (Supra) at paragraph [25] as per Halsbury's Laws of England, 4th ed, vol 45, paragraph 1147 at 552

[11] This was the time at which the TAC no fault claim was submitted

[17] [2000] WASCA 23

[18] (1997) 26 MVR 553

[19] [1984] WAR 111