2 During the course of this manoeuvre Barber's vehicle was struck on the passenger side rear by a vehicle driven by Mr Roger Illingworth which was travelling along Talbot Road in a southerly direction. Prior to the right hand turning manoeuvre, Barber's car had been travelling north along Talbot Road. The applicant says that as a consequence of the collision she was injured, her most serious injury being a fractured skull. She says that she had a number of physical and mental problems as a consequence of her injuries requiring medical and psychiatric treatment and her admission to hospital. After lodging her claim for benefit from the MAIB the applicant received a disability allowance from time to time from the MAIB between 1st November 1980 and 4th December 1985.

3 The applicant says in her affidavits that until 9th May 1986 when she was speaking to her legal adviser Mr James Crotty on an unrelated matter she was unaware that she may have a claim for damages in respect of her injuries. She was cross-examined as to this when the application came before me for hearing. However I have no reason to disbelieve her and I accept that until 9th May this year she was totally ignorant of and had no reason, as a result of education, experience or otherwise, to suspect that she may have a claim in tort against one or other or both drivers.

4 In an affidavit sworn in support of the application Mr James Crotty deposes that following the consultation with the applicant on 9th May he wrote to the MAIB on 14th May 1986 advising that an application to extend time may be made. During the course of the ensuing correspondence it was mentioned that a Miss Thorp, who had been a fellow passenger in Barber's vehicle, had been killed as a consequence of the accident. I mention this because neither counsel before me on this application mentioned that an inquest had been held or that proceedings had been taken against either driver. I find this somewhat curious in light of the submissions which were made as to the existence or non-existence of a prima facie case against the drivers of the two vehicles. One would have expected a significant amount of evidence as to this to be available if prior proceedings had taken place. However, to continue with the chronology of events, on the 20th June 1986, Mr Crotty filed an application seeking leave to commence proceedings.

5 On 25th June 1986 instructions in relation to the matter were passed over to another firm of solicitors and Mr Andrew Rae has thereafter acted on behalf of the applicant. Although there have been delays thereafter brought about by negotiations as to acceptance of service, a belated appreciation by Mr Rae of the need for further evidence (which occurred shortly before a hearing schedule before the Master in August) and other reasons not attributable to the applicant or her solicitors, I am satisfied that all delays to date have been reasonably explained and do not of themselves constitute valid reasons for declining to exercise a discretion in favour of granting the application.

6 As pointed out by Cox J in Soul v Soul 23/1982 ignorance of itself is not a satisfactory explanation for delay. However, it may be of significance in this regard to observe that the applicant made a claim for statutory Benefits from the MAIB soon after the accident and received them, apparently without demur by the Board until late 1985. Furthermore, there is nothing in the Application for Benefits form which was lodged by the applicant to draw her attention to the distinction between a claim for benefits and a claim for damages at common law. Although nothing was made of this by the applicant or her counsel it seems to me that it would not be unreasonable for a person with no prior dealings with the law in the field of negligence to assume that the claim and the ensuing payments of benefits represented her full legal entitlement to compensation.

7 In the circumstances of this case I think that the explanations which I have received for the delay are truthful and that they are in that sense satisfactory. Her ignorance of her rights was not a product of wilful blindness or disregard of the obvious. I think she was simply oblivious to the fact that any cause of action existed. I would find it difficult to regard her as disentitled to commence proceedings on this ground.

8 I am also satisfied that the proposed defendants and through them, the MAIB as their insurer will not suffer significant prejudice as a consequence of delay. It has been said many times, of course, that delay in itself is prejudicial and there is no denying that the delay in this case has been very long. However, the MAIB must have been aware of the potential for the applicant to make a claim at least since she lodged her Benefit application in November 1980. No affidavit has been filed by the respondents claiming specific prejudice due to loss of memory or any other factor such as unavailability of witnesses.

9 Mr Ellis who appeared as counsel for the respondents argued that upon the facts deposed to by the applicant she has failed to make out a prima facie case against either or both respondents. He made the submission that upon that evidence it could not be found that either driver was at fault. He referred to Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140; Jones v Dunkel (1958-9) 161 CLR 298 and West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62. It should be noted that these cases were all concerned with claims by the driver of a motor vehicle (or in Jones v Dunkel, his widow) against the driver of another vehicle (or his estate). The present case concerns a claim for damages by a passenger in one vehicle (Compare Rainbird v Ward & Anor, Serial No: 56/1970 Full Court).

10 It is nevertheless true of course that in order to succeed the applicant would have to show negligence on the part of at least one of the respondents on the basis either of direct evidence or as a positive inference from established facts.

11 As Mr Ellis pointed out I am not here dealing with procedures at trial which may have a crucial bearing upon ultimate findings as to negligence such as were discussed in Hummerstone v Leary (1921) 2 KB 664, but by the same token it is appropriate to observe that I am not now concerned with making ultimate findings upon which the applicant may or may not eventually succeed in her proposed action. As Crisp J observed in Re Wherrett [1963] Tas SR 178, to embark upon a detailed examination of the justice of a claim upon an application to extend time is to anticipate the actual hearing of the claim when the court hearing the application would not be in possession of all the relevant material. In Barry v Repco Bearing Co Pty Ltd 4/1963, Crawford J made similar remarks; as did Neasey J in Marton v Concrete Industries (Tas) Pty Ltd 3/1964. Whilst an applicant to extend time must show a prima facie case before being permitted to proceed, this is not the equivalent of showing a case which is bound to succeed. The concept has been expressed in a number of ways in a number of cases. In Marton's case, Neasey J described it as "prima facie an arguable case for damages". In Wakelin v Comalco Aluminium (Bell Bay) Ltd 69/1975, Crawford J referred to "a reasonably possible and arguable cause of action" and, where contributory negligence was suggested "a reasonably possible and arguable chance of succeeding at least in some degree". In Mansell v Patons & Baldwins (Aust) Ltd 82/1968, Chambers J at p120 suggested that the test was whether or not "he applicant can present prima facie, an arguable case to a court of trial".

12 In my opinion, if the applicant can show that she has a prima facie case in the above sense against the respondents she should be regarded as satisfying that prerequisite to the exercise of my discretion. Despite the trenchant criticisms by some members of the High Court in Nesterczuk v Mortimore (supra) of the views expressed by Denning LJ in Baker v Market Harborough Industrial Co-operative Society Ltd (1953) 1 WLR 1472 I think that Lord Denning's utterances, if regarded not as statements of legal principle, but rather as empirical observations of fact are unexceptionable, at least so far as they relate to actions by passengers injured in two car collisions. It seems to me that if a passenger is injured in such circumstances he or she usually succeeds against one or other or both drivers simply because after it has heard the whole case, a court can normally reach a conclusion as to negligence, even though the passenger and her advisers, having been unsure at the commencement of proceedings as to the ultimate findings that will be made, have wisely joined both drivers as defendants. A plaintiff in such circumstances frequently cannot know with certainty which of the drivers is to blame before an action is brought and the procedural practices which have developed, as exemplified by the rule in Hummerstone v Leary (supra), and the making of Bullock and Sanderson orders in relation to costs in appropriate cases, constitute a clear acknowledgement of this. Normally a court will need to hear from the defendants in such an action before reaching a firm finding as to apportionment of blame, and if it does not hear from one or the other it may well draw adverse inferences as a consequence. (See Jones v Dunkel (supra), and Insurance Commissioners v Joyce [1948] HCA 17; (1948) 77 CLR 39.)

13 Furthermore a plaintiff who has instituted proceedings against two drivers may well need to interrogate and discover documents before being in a satisfactory position to assess the real prospects of the success against either.

14 These considerations lead me to the view that in respect of an application such as the present it is not a permissible approach to say that the plaintiff has not shown a probability that she will succeed against both respondents and therefore she has not shown a prima facie case. In my opinion by showing that a collision occurred at the time and place alleged and in the manner alleged even though much more detailed evidence may be expected at the trial and even though additional facts are probably available even now, the applicant shows that she has a prima facie arguable case against both respondents as that phrase has been applied and understood in the decided cases.

15 Whilst it may be said that upon the facts presented by the applicant it is more probable than not that Barber was the driver whose negligence was the primary cause of the accident by driving across the path of an on-coming vehicle, this cannot be asserted with such confidence that the prospect of a finding of negligence on the part of Illingworth can be discounted. (See for example Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424. What is plain is that the applicant is likely to succeed against one or the other or both. To my mind in the circumstances of this case that is sufficient basis for saying that the applicant satisfies the prima facie case test.

16 On the material before me, I have concluded that my discretion should be exercised in favour of the applicant and that she should be granted an extension of time in accordance with s5(3) of the Limitation Act 1974, within which to bring proceedings. I have been informed by counsel that a Writ was in fact filed on 25th September 1986, so I will grant the extension until that date.