Negligence - Vehicles and traffic - Damages - Failure of passenger and driver to wear seat belt - Causation - Contributory negligence - Intoxication of passenger - Knowledge and appreciation of risks - Negligence of driver - Relative states of intoxication of passenger and driver.

Law Reform (Miscellaneous Provisions) Act 1955, s.15

Supreme Court Rules, O.10 r.8(1), O.31 r.14, O.61 r.3(a), O.64 r.5, O.67 r.4, O.69 r.2

Hewitt v Mirror Newspapers (1977) 17 ACTR 1

Froom v Butcher [1975] EWCA Civ 6; (1976) QB 286

Eagles v Orth (1976) Qd R 313

Hallowell v The Nominal Defendant (Qld) (1983) 2 QD R 266

Kilminster v Rule (1983) 32 SASR 39

Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39

Dodd v McGlasham (1967) ALR 433

Parker v Lane (1958) SASR 260

Duncan v Bell (1967) Qd R 425

Harrison's Timber v Haster (1974) 3 ACTR 1

Dino v Prosser [1967] VicRp 107; (1967) VR 835

Johnsen v Duks and Anor (1963) NSWR 730; 80 WN (NSW) 272

Hastings v Hurley (1881) 16 ChD 734

Costain Australia Ltd v Dennehy [1983] VicRp 96; (1983) 2 VR 353

Geelong Retreads v Allstates Transport (1969) 3 ACTR 5

In re Pritchard deceased (1963) Ch 502

Grimshaw v Dunbar (1953) 1 QB 408

Pagett v Davies (1985) 36 NTR 17

Evans v Bartlam (1937) AC 473

Tunnecliffe v Besnard (1938) 55 WN (NSW) 58

Palmer v Prince (1980) WAR 61

Worldwide Products Pty Ltd v Hoffman (1982) QD R 316

Miegel v Bowles (1894) 10 WN (NSW) 172

Counsel for the Plaintiff/Respondent: Mr P. Sheils QC

with Mr B Meagher

Instructing solicitors: Messrs Scott Sheils and Glover

Counsel for the Defendant/Appellant: Mr P. Garling

Instructing solicitors: Messrs Abbott Tout Russell Kennedy

The plaintiff issued a Writ of Summons on 23 July 1987. It claimed damages pursuant to the Compensation (Fatal Injuries) Act 1968 (ACT). Her husband was killed in a motor vehicle accident on 27 July 1984.

2. On 25 July 1987 personal service of the Writ was effected on the defendant. On the previous day a copy of the Writ was served on the defendant's authorised insurer (NRMA Insurance Ltd - "NRMA"). Particulars of the service were endorsed on the Writ on 30 July 1987. 25 July 1987 was a Saturday.

3. The solicitor for the plaintiff (Mr Tigwell) telephoned NRMA on 10 August 1987 with a view to achieving some progress in relation to the claim. The person he spoke to said she could not locate the file. She appears to have rung back (assuming it was the same officer) on 12 August 1987. The file was still missing. She said she would ring back. She did not.

4. On 8 September 1987, a letter was sent to the NRMA by Mr Tigwell. I will set out its terms.

5. "We refer to your above reference (CAN 14438) and our telephone conversation with your office dated 12th August 1987 in which we were advised that you were unable to find your file. As a matter of courtesy, we point out that the time for filing an appearance and defence, on behalf of your insured in the above matter has now expired. We will however, refrain from making the appropriate application at Court for Judgment for a period of seven (7) days from the date of this letter. Should you wish to enter an appearance and defend the matter, please do so within this time."

6. Even this quite clear warning drew no response.

7. The Registrar took the view that the writ was not indorsed with particulars of service within the time limited by the Rules of Court. As a result, an application was made to the Registrar for leave to enter interlocutory judgment in default of appearance by the defendant notwithstanding that perceived defect.

8. The application was granted on 14 December 1987.

9. Pursuant to that leave, a Praecipe for Interlocutory Judgment was filed on 16 February 1988. Interlocutory judgment was entered, for damages to be assessed, on 2 March 1988.

10. A Certificate of Readiness for Trial was filed on 9 October 1990. The reason for delay is not explained.

11. Mr Graham Edwards, a Senior Manager of NRMA, provided some limited evidence to explain NRMA's inaction.

12. In 1989 he reviewed the NRMA file on this matter. It is interesting to note that it must have been found some time after 12 August 1987.

13. A note on the file dated 27 July 1987 said "Rang and checked with JO's secretary they are serving Susa." (JO is a reference to the solicitor for the plaintiff.)

14. In October 1989, Mr Edwards made, or caused to be made, enquiries of the defendant as to whether he had been served. The defendant had no positive recollection. He referred Mr Edwards to his solicitors. The defendant's solicitors had no instructions that service had been effected.

15. Mr Edwards did not enquire of the plaintiff's solicitors. Why he did not do so can only be explained on the basis that he was not properly instructed by those who gave him the relevant responsibility. It is clear that the NRMA cannot suggest any credible reason why the entry of interlocutory judgment was not discovered well before this time. Indeed, the failure to enquire of the plaintiff's solicitors even before interlocutory judgment, has not been explained at all, let alone satisfactorily.

16. No effective action was taken by NRMA until 30 January 1991.

17. On that date, the current solicitors for the plaintiff advised the current solicitors for the defendant (who are usually instructed by NRMA) that a listing hearing was set for 31 January 1991.

18. On that day a second listing conference was then set for 18 June 1991. Before the conference, the plaintiff's solicitor went through the file with Mr Galbraith, a member of the firm of solicitors who usually act for NRMA. The file included the interlocutory judgment, a record of the proceedings leading up to it and copies of all relevant documents.

19. On 23 April 1991 the plaintiff's solicitors wrote to the defendant's solicitors. It was not the first such letter. The previous letter was 3 April 1991. Both letters requested a Defence.

20. Instead of complying with those requests, the defendant sought to file a Defence on 17 May 1991. It was rejected by the Registry.

21. That Defence purported to raise an issue as to contributory negligence. It alleged that the deceased was not wearing a seat belt. It also alleged that the deceased allowed himself to be driven by the defendant when the latter was intoxicated.

22. On 2 July 1991, consent to the filing of the Defence having been refused, the defendant applied to the Master to set aside the interlocutory judgment. The application was heard on 5 July 1991. The Master refused leave.

23. The Master's reasons for doing so were expressed ex tempore. He rejected any proposition that the inaction of the insurer before 30 January 1991 had been satisfactorily explained. He noted that no evidence to support the proposed defences had been adduced otherwise than by reference to hearsay. It was also noted by the Master that the lack of seat belt defence was not, in particular, supported by evidence that the failure to wear a seat belt had caused the death of the deceased.

24. The Master held also that there was insufficient evidence to support the second allegation of contributory negligence. That allegation has since been abandoned. It is, accordingly, unnecessary to refer to it further.

25. On this appeal from the Master's decision, leave was sought to add to the evidence. This was evidence clearly available prior to the hearing before the Master. It should have been adduced then. However, because there is no impediment to successive applications to set aside an interlocutory judgment, (see Hewitt v Mirror Newspapers (1977) 17 ACTR 1) I decided that no useful purpose would be served in refusing leave to adduce that evidence.

26. It follows that, although this matter is, in form, an appeal from the Master, it is, in reality, a fresh application. I will treat it as such.

27. I should say at the outset, that the affidavit of Ms Louise Hunt, the solicitor conducting the matter for the defendant, annexing statements and reports, does not prove the truth of the contents of those documents. The possession of the information contained in those documents, having regard to the likelihood of further evidence, could affect the exercise of the court's discretion. If the defendant had been only recently notified as to a viable defence of which he was not previously aware, that factor might mitigate an apparently contumelious delay. It would also be relevant as to whether this matter should be further adjourned to enable admissible evidentiary material to be placed before the court.

28. Unfortunately, Ms Hunt's affidavit does not address the issue as to when the police witness statements and other reports, presumably from the inquest into the death of the deceased, came into her possession or that of NRMA.

29. The additional evidence adduced by the further affidavits is as follows.

30. Mr Dirk Klein deposes that he came across the scene of the relevant motor vehicle accident.

31. The windscreen was smashed and bulged outward on its left hand side. I assume that to be the passenger side. The passenger was not then wearing a seat belt. That passenger, of course, was the deceased although this affidavit does not identify him.

32. Michael Kilfoyle, a police officer, deposed to attendance at the relevant accident scene. He deposed to the same facts as those referred to by Mr Klein. He also noted the odour of intoxicating liquor on the breath of the driver (the defendant).

33. Ralph Schofield, another police officer, deposed that on examination of the defendant's vehicle, he found the front passenger side seat belt to be in proper working order. (Literally, he said he made a note to that effect but I accept that that statement is to be taken as evidence of the fact so noted.)

34. This evidence is capable of supporting an inference that the deceased was not, at the moment of impact, wearing a seat belt.

35. Contributory negligence on the part of the deceased operates to reduce damages otherwise available to the dependants of the deceased as if the claim was one for damages by the deceased (see s.11 Compensation (Fatal Injuries) Act 1968 (ACT) and s.15 Law Reform (Miscellaneous Provisions) Act 1955).

36. Failure to use a seat belt is capable of being viewed as contributory negligence. (See Froom v Butcher [1975] EWCA Civ 6; (1976) QB 286; Eagles v Orth (1976) Qd R 313; Hallowell v The Nominal Defendant (Qld) (1983) 2 Qd R 266.)

37. However, in addition to the fact that the deceased had failed to wear a seat belt, two further facts need to be established by a defendant before contributory negligence can be made out.

38. It must be shown that the failure to wear a seat belt was a result of the negligence of the deceased. It must also be shown that the lack of use of that seat belt caused or contributed to the injury or injuries complained of.

39. As to the first consideration, the answer would very much depend, in the circumstances of this case, on whether the deceased was too drunk to have operated the seat belt. The driver may have contributed to the lack of use of the seat belt by his passenger by failing to ensure the seat belt was done up. The extent of that failure might well have been affected by the driver's relative sobriety.

40. The circumstances thus referred to are, of course, by now largely incapable of clarification.

41. In Froom's Case (supra) Lord Denning MR, reviewed various previous decisions on the question as to whether, and in what circumstances, a failure to wear a seat belt would constitute contributory negligence. Such a failure could, of course, be a deliberate one. It could be for a good reason or for no good reason. It could result from mere inadvertence. Wearing a seat belt is, of course, a sensible practice whether or not the law requires it. It is a practice designed to prevent or minimise injury in the event of an accident. Prima facie, therefore, some reduction in damages will be warranted depending on the extent to which the passenger's failure has contributed to the injury and the extent to which, insofar as it so contributed, the responsibility for the resultant injury should be shared with the negligent driver.

42. In Kilminster v Rule (1983) 32 SASR 39, the Full Court of the Supreme Court of South Australia considered that, in an injured pedestrian, voluntary intoxication could exacerbate the degree of contributory negligence.

43. In the present case, a prudent driver, knowing his or her passenger to be intoxicated, would have an enhanced duty to ensure that the passenger was safely positioned in the vehicle. That would include the proper engagement of the seat belt. It would be no excuse for the driver to claim that he or she was too intoxicated to carry out that duty.

44. The culpability of the plaintiff would, as Latham CJ noted in The Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, depend on the extent to which the plaintiff had known and appreciated the risk, was in a condition to know and appreciate the risk and was voluntarily or not in the vehicle itself.

45. Dodd v McGlasham (1967) ALR 433 involved a drunken passenger and a drunken driver. Joske J held that the passenger, had he been sober, should have appreciated the risk of the resultant accident if he allowed himself to be driven by the defendant. He assessed contributory negligence on the part of the plaintiff at 10%.

46. In Parker v Lane (1958) SASR 260, knowledge, actual or imputed, of the driver's intoxication being absent, contributory negligence was not established.

47. By way of contrast, in Duncan v Bell (1967) Qd R 425, a driver and passenger had been drinking together. Both had become intoxicated. That situation was held to warrant a finding of 50% contributory negligence.

48. To assess the culpability of the deceased in failing to wear a seat belt, it is important to assess the relative states of intoxication of the driver and the passenger. It is not known whether the deceased and the defendant were drinking together or separately. It is not known if the defendant appeared intoxicated. It is not known whether the deceased was even conscious when he first entered the defendant's motor vehicle.

49. This lack of information makes it more difficult for there to be an adverse finding against the deceased. However, that makes it even less appropriate to allow the defendant now to raise that issue. It is, of course, obvious that dropping the allegation of contributory negligence relying on assent to being driven by an intoxicated defendant does not destroy the factual relevance of the question of relative states of intoxication to the issue of contributory negligence. That allegation seems to have been dropped because of a realisation that it would be unfairly prejudicial belatedly to raise such an allegation.

50. It may be noted that, although not proved in an admissible form, the record of the police interview with the defendant, if accepted, would support a view that the defendant was apparently sober at all relevant times and was aware that the deceased was not.

51. Nevertheless, it is not sufficient to achieve a successful result from a plea of contributory negligence to show that a plaintiff (or, in this case, deceased) had been to some extent culpable in failing to wear a seat belt. It must also be demonstrated, at least on the balance of probabilities, that such failure of the deceased caused the relevant injury. In this case it must be shown that, had the deceased been wearing the seat belt fitted to the defendant's vehicle at the time of the accident, he would have survived.

52. No admissible evidence was adduced by the defendant as to this question.

53. In an application to set aside judgment, the admission of evidence based only on information and belief is not permissible (see Miegel v Bowles (1894) 10 WN (NSW) 172; Palmer v Prince (supra); World Wide Products v Hoffman (supra)).

54. It is true that the defendant's counsel did seek to tender a medical opinion in the form of a post-mortem report apparently prepared for the Coroner by Dr GM Bennett on 31 July 1984. No opinion is expressed in that report as to whether the deceased would have survived had he been wearing a seat belt when the impact occurred. In any event, it is inadmissible in its present form by virtue of s.7C(1) of the Evidence Act 1905 (Cth). Even if s.30 of the Evidence Act 1971 (ACT) remains in force (which is doubtful) there is no likelihood that the conditions in s.30(1)(a) and (b) could be satisfied.

55. There was also tendered, but rejected, a report of Dr Sears, a neurosurgeon. Dr Sears was not called. His opinion that the deceased's death would not have happened had he worn a seat belt was based on a reading of the police statements tendered to the coronial enquiry. Not only, of course, is it clear that such a report is not made admissible by virtue of the provisions of the Evidence Acts above referred to, it is also clear that it only expresses a view that the lethal head injuries would not have happened but for the lack of seat belt restraint. The report does not express an opinion as whether the lethal chest injury suffered by the deceased would have been avoided had the deceased been wearing a seat belt. It follows that the critical question as to whether, if the deceased had been wearing a seat belt, he would have survived, is simply not addressed.

56. Initially, it was the defendant's contention that the default judgment was not regularly entered. If that had been so, the defendant would have been entitled to apply to have it set aside without establishing a defence on the merits. Unreasonable delay in so applying remains a ground for refusing to do so unless it can be shown that the judgment was a complete nullity (see Harrison's Timber v Haster (1974) 3 ACTR 1).

57. The challenge to the regularity of the judgment was based on the assumed non-compliance with Order 10 rule 8(1) of the Rules of Court.

"The person serving the writ of summons shall, within three days

at most after such service, indorse on the writ the day of the

week and month

of the service thereof, otherwise the plaintiff may not, in case

of non-appearance, proceed by default, and every affidavit of

service of such writ shall mention the day on which such

indorsement was made."

59. The Registrar does have power under Order 69 to deal with an application to set aside a judgment if irregularly entered or to decline to do so notwithstanding that irregularity (see Dino v Prosser [1967] VicRp 107; (1967) VR 835). That Order does not, however, permit the Registrar (or the Court) to enter judgment in default of appearance pursuant to Order 14 rule 6 when there has been a failure to endorse the writ as required by Order 10 rule 8(1). (See Johnsen v Duks and Anor (1963) NSWR 730; 80 WN (NSW) 272.) Order 10 rule 8(1) is clearly mandatory in its terms. It spells out the consequences of non-compliance. Default judgment may not be entered if it has not been complied with.

60. Nothing thus stated lessens the obligation of the defendant to appear or suffer such consequences in default as the Rules permit. For example, had an application been necessary to enter judgment otherwise than in default of appearance, service of such an application on the defendant could have been validly effected simply by filing the relevant documents (see Order 67 rule 4).

61. It has been suggested that non-compliance with Order 10 rule 8(1) could have been avoided by an application to extend time for making the indorsement nunc pro tunc. Fry J granted such an application in Hastings v Hurley (1881) 16 ChD 734. A fresh affidavit of service was required but the reason for that requirement was not explained. The Registrar does have power to extend time under Order 64 rule 5 (see also Order 61 rule 3(a)). However, in the present case the application was for leave to sign judgment notwithstanding the lack of compliance with Order 10 rule 8(1). That was not an application this Court could have granted consistently with Johnsen v Duks (supra). In short, the wrong application was made to the Registrar. The same result could have been obtained, consistently with Johnsen v Duks (supra), by an application to extend time for the making of the indorsement on the writ.

62. There is, however, a real question as to whether the indorsement was, in fact, made out of time. Order 64 rule 1 provides:-

"Where any limited time less than six days from or after any

date or event is appointed or allowed for doing any act or

taking any proceeding Sunday, and any other day on which the

offices of the Court are not open shall not be reckoned in the

computation of such limited time."

63. The offices of the Court are not open on Saturdays.

64. Thus, it follows that, although service of the Writ of Summons was validly effected on the Saturday (see Costain Australia Ltd v Dennehy [1983] VicRp 96; (1983) 2 VR 353), the date from which the three days is to be computed commences no earlier than from the following Monday. Indorsement on the Thursday was within three days after the Monday.

65. However, even if it is assumed that the indorsement was made out of time, it is clear that the Registrar had power to cure that non-compliance.

66. In Geelong Retreads v Allstates Transport (1969) 3 ACTR 5, Fox J considered that an application to set aside a judgment as irregularly entered, falls under Order 69 rather than Order 31 rule 14.

67. The latter provision permits the setting aside of a default judgment that was regularly entered.

68. It follows that even if the irregularity entitles the defendant to have the judgment by default set aside ex debito justitiae, that entitlement is subject to the terms of Order 69 rule 2.

"An application to set aside any proceeding for irregularity

shall not be allowed unless it is made within a reasonable time,

or after the party applying has taken any fresh step with

knowledge of the irregularity."

70. In this case, there is a real question which arises as to whether this application was made "within a reasonable time".

71. It may be noted that the defendant's application was not made in the manner and form required by Order 69. It was made by way of Notice of Motion. It did not specify the irregularity relied on. No question of irregularity was raised before the Master on 5 July 1991.

72. The matter of possible irregularity was not raised until the hearing of this appeal on 18 October 1991.

73. The defendant's advisers have been well aware since 31 January 1991, of the procedural steps which had been taken to enter interlocutory judgment.

74. I am of the opinion, therefore, that even if there was an irregularity it could not be said, in these circumstances, that an application based on such irregularity has been made "within a reasonable time".

75. Of course, if there was no way in which, following non-compliance with Order 10 rule 8(1), default judgment could have been entered, the irregularity would have been one which was incapable of remedy. (See In re Pritchard deceased (1963) Ch 502.) Insofar as Johnsen v Duks (supra) suggests that a failure to indorse the writ in time is incapable of remedy notwithstanding the power to extend time and the provisions of Order 69, I would respectfully differ. I would prefer to follow the views of Fox J in Geelong Retreads (supra). In any event, Hastings v Hurley (supra) is contrary to such a conclusion.

76. In the case of a judgment regularly entered or, in the case of an irregularly entered judgment, where the irregularity does not entitle the defendant to set aside the judgment as a nullity, it is a matter of discretion whether the judgment should be set aside.

77. It is well settled that the factors relevant to the setting aside of such a default judgment include the following:-

(i) The reasons for and extent of the default which

enabled judgment to be entered;

(ii) The delay in applying to set aside judgment and the

extent to which that delay has operated to the prejudice of the

plaintiff; and

(iii) The strength of the case which the defendant seeks

to make.

78. It must be said that the defendant's failure to enter an appearance in this case cannot be regarded as excusable for reasons I have already given. The administrative policy followed by the defendant's insurer carried with it the risk that a default judgment might be entered against the defendant without its knowledge. To make matters worse, the insurer had been expressly warned that default judgment was imminent before it was in fact entered.

79. I do not, however, regard as inexcusable the delay since 31 January 1991. By that time the plaintiff was aware that the defendant proposed to apply to set aside the judgment.

80. On the other hand, I do not consider that the plaintiff's solicitors misled the defendant's solicitors by indicating that the plaintiff would consider consenting to a defence being entered or by inviting the submission of the proposed defence to them. The plaintiff was entitled to see what the defence would be before consenting to it being relied on. If the plaintiff considered that she was not prejudicially affected by the proposed defence, she might well have consented to the setting aside of the default judgment to enable that defence to be filed.

81. The various exchanges between the respective parties' solicitors took up time between 31 January 1991 and the filing of the Notice of Motion.

82. I am satisfied that the delay since the entry of default judgment has operated to the plaintiff's prejudice. The facts relating to the contributory negligence alleged by the defendant are inextricably linked to the few hours prior to the fatal accident. The plaintiff has been entitled to assume, since default judgment was entered, that she did not need to establish what happened during that time.

83. That, in itself, would be a powerful reason for refusing the defendant's application to set the default judgment aside. (See Grimshaw v Dunbar (1953) 1 QB 408; Pagett v Davies (1985) 36 NTR 17.)

84. Additionally, it should also be made to appear that the proposed defence is a meritorious one. There must be proved facts which, if accepted to the necessary standard, are capable in law of supporting a substantive defence. (See Evans v Bartlam (1937) AC 473, 480; Tunnecliffe v Besnard (1938) 55 WN (NSW) 58; Palmer v Prince (1980) WAR 61; Worldwide Products Pty Ltd v Hoffman (1982) Qd R 316.)

85. In this case, as I have noted, the lack of seat belt can be proved, but evidence as to the degree of lack of care attributable to that omission is tenuous and uncertain. The evidence of causal relationship of that omission to the death of the deceased is entirely absent.

86. Even if all those factors were to be made the subject of admissible evidence, the lapse of time makes it unlikely that the ultimate verdict would be reduced by more than a relatively nominal figure (see, for example, Dodd v McGlasham (supra)).

87. Even assuming a prima facie case to have been made out that there was a good defence on the merits, a question of discretion still remains. The more important, the more cogent and the more significant the matter of defence the greater weight will be given to that factor. In many cases it may well outweigh the fact that no meritorious excuse for delay exists.

88. Pursuit of even a prima facie meritorious defence may be denied if unfair prejudice to the plaintiff has been caused by the defendant's delay. It will, of course, depend on the nature and extent of that prejudice.

89. In this case the likely prejudice to the plaintiff is obvious. She cannot give any evidence of the circumstances surrounding the subject accident. She is reliant on others. The defendant is a source of evidence but plainly has an opposite interest. Given his injuries and possible state of intoxication, his reliability and recollection must be suspect.

90. There would no doubt have been other persons who were present at the Club at which both the defendant and the deceased had been drinking on the evening prior to the accident. As I have already noted, since the entry of interlocutory judgment the plaintiff has had no cause to seek out and preserve the recollection of those persons. It would be unfair to require her to do so now.

91. Further, for the minimal gain likely for the defendant, even if successful in making out his proposed defence, is very much offset by the greatly increased costs of this litigation. There is no prospect of a verdict for the defendant. Even if successful in establishing a small percentage of contributory negligence, the defendant would have no realistic prospect of obtaining an order for costs or even a reduction in the quantum of any such order.

92. As a result, I have no doubt that the Master was right to refuse the application before him. Even with the additional evidence presented to me, I have come, equally unhesitatingly, to the same conclusion.

93. The order of the Court will be that the appeal from the Master is dismissed.