Orr v Transport Accident Commission

(a) the transport accident did involve an unidentified driver;

(b) the unidentified driver was negligent in their driving of their vehicle; and

(c) this negligence was a cause of the injuries sustained by Mr Orr in the transport accident.

1. The jury awarded Mr Orr the sum of $160,000 in compensation for pain and suffering damages.

1. As a consequence of the jury verdict, the defendant contends that Mr Orr has failed to satisfy the requirements of s96 of the Act and is therefore prohibited from recovering damages under the Act.

1. Section 96 of the Act applies in circumstances where a person is injured as a result of a transport accident involving the driving of an unidentified vehicle.[1] It provides as follows:

"Transport accidents involving unidentified or unindemnified vehicles > > (1) ... > > (2) Damages in respect of a relevant transport accident can only be recovered if -

(a) the person, within a reasonable time after he or she knew that the vehicle was an unidentified vehicle, gave the Commission notice in writing of intention to make the claim, setting out -

(i) the full name and residential address of the person who ... was injured and, as appropriate, the full name and residential address of the person seeking to recover damages; and

(ii) the date and place of the accident; and

(iii) the general nature of the injuries; and

(iv) a short statement of the circumstances of the accident; or

(b) where notice is not given as required by paragraph (a), the person satisfies the court that the Commission has not been materially prejudiced in its defence to the proceedings for the recovery of damages by any failure of the person to give the notice at the proper time or by any omission or insufficiency or defect in the notice.

unidentified vehicle means a vehicle the identity of which cannot be established as at the date of an accident, and which remains unidentified at least until the commencement of proceedings under subsection (1)."

1. The plaintiff bears the onus of proof, including, if relevant, an onus to satisfy the Court that the defendant was not materially prejudiced in its defence of the claim for damages, by any failure to give notice at the proper time.[2]

Provision of notice - Section 96(2)(a)

(a) he did give relevant notice to the TAC, on or about 6 March 2018;

(b) the fact that notice was provided to the TAC is evidenced by a document entitled "Claim for Compensation Summary", which was tendered into evidence during the trial ("the Claim Form" or "Ex P3");[3]

(c) a comparison of the content of Ex P3 and a later document entitled "Section 96 Statement",[4] demonstrates that very little further information is disclosed by the later document;

(d) there is no requirement in s96 of the Act that the relevant notice provide allegations of negligence on the part of the unidentified driver;

(e) the decisions of Lakic v Transport Accident Commission[5] and Kirk v Transport Accident Commission[6] support the proposition that the information contained in Ex P3 can satisfy the requirements set out in s96 of the Act;

(f) alternatively, Ex P4, being notice given in writing pursuant to s96 of the Act on 30 October 2023 ("the Section 96 Statement" or "Ex P4"), was given within "a reasonable time" as required by s96 of the Act. Despite this written submission, at the hearing on 8 December 2025, Senior Counsel for the plaintiff frankly admitted that the content of Ex P4 does not comply with the requirements of s96(2)(a) of the Act, since it does not set out the general nature of the plaintiff's injuries. In this regard, Senior Counsel for the plaintiff acknowledged that Ex P4 contains a "defect" for the purposes of considering the provision of s96(2)(b) of the Act;

(g) whether notice was given within a reasonable time is a question of fact. It involves an objective element.[7] Determination of what is "reasonable" in the circumstances, must be informed by the point in time at which the plaintiff appreciated that his injuries resulted in a serious impairment of a body function with consequences that are more than significant or marked and at least very considerable. In relation to this, reliance was placed upon the decision of Judge Kings in Kirk, where in considering what amounts to a "reasonable time" for the purposes of s96 of the Act, her Honour had some regard to the existence of the requirement to establish a serious injury in order to bring a claim for damages, as well as the date on which the plaintiff first consulted solicitors;[8]

(h) on the facts in this case, the plaintiff had a history of knee problems, which he contended were aggravated by the transport accident. There was a dispute regarding whether the plaintiff's injuries were bilateral or only involved the right knee. Liability in respect of the left knee was rejected by the TAC. The evidence indicates that the plaintiff underwent conservative treatment and hoped to avoid surgery.[9] It was submitted that he could not have appreciated that the aggravation of this injury (or injuries) met the relevant statutory threshold until knee replacement surgery was recommended and performed, first for the left knee in May 2023 and secondly for the right knee in February 2024;

(i) in the circumstances, the plaintiff has complied with s96(2)(a) of the Act by giving notice on 30 October 2023, having only appreciated the significance of his injuries in the period which immediately preceded the giving of that notice.

(a) Ex P3 does not satisfy the requirements of s96(2) of the Act, in that it does not give any notice that there was an unidentified vehicle at fault in the transport accident;

(b) Exhibit P3 does not constitute "notice in writing" given to the defendant as required by s96(1)(a) of the Act. That is because:

(i) it is a written record produced by the TAC, not the plaintiff, after oral notice was received from the plaintiff;[10]

(ii) the Claim Form was not returned to the TAC for correction, despite the invitation by the TAC under cover of its letter dated 8 March 2018;[11]

(iii) in Lakic, the claim form was signed by the plaintiff. In contrast, Ex P3 was not signed by the plaintiff, who gave evidence that he did not recall seeing it prior to giving evidence. Furthermore, in Lakic, Senior Counsel for the defendant conceded, for the purposes of the hearing, that the claim form likely contained all of the relevant matters required to satisfy s96(2)(a) of the Act. In this case, no such admission was made and in fact, by paragraph 2A of the defendant's Defence, the proposition was specifically disputed;

(iv) the circumstances described in Ex P3 do not reflect the circumstances of injury pursued at trial and also states that no other driver was at fault;

(c) the Section 96 Statement does not satisfy the requirements of s96(2)(a) the Act. That is because:

(i) that document does not set out the general nature of the injuries as required by s96(2)(a)(iii) of the Act;

(ii) the circumstances of the transport accident as described in the document do not reflect the circumstances of the accident pursued at trial. In particular, the document implies that the cause of the unidentified driver "veering" onto the plaintiff's side of the road, was a bend in the road. In fact, the evidence given at trial was that the transport accident occurred on a straight stretch of road.[12] Similarly, key information in relation to the transport accident only came to light during the trial, including that the unidentified vehicle "jack-knifed"[13] and that the trailer it was towing "got a wobble up".[14] None of this information was included in Ex P4;

(iii) the date on which the plaintiff knew that the other vehicle involved in the transport accident was unidentified, was the date of the transport accident or a time very shortly thereafter.[15] The Section 96 Statement is dated more than five years after the transport accident. It cannot be said that this statement was provided "within a reasonable time" as required by s96(2)(a) of the Act. It is notable that the plaintiff had engaged solicitors by October 2021;

(iv) in Walters, a delay in giving notice of more than two years was found to be unreasonably long.[16] In Williams, a delay of eighteen months in giving notice was found not to be "within a reasonable time".

1. As to the purpose of giving notice generally, the defendant relied upon the observations of Jordan CJ, in Blandford v Fox,[17] where his Honour said:

"It has been pointed out that this part of the statute gives rise to obvious danger of abuse, and that cases arising under it therefore call for cautious approach ... A person who has sustained an injury out of all relation to a motor vehicle may falsely allege that it was caused by a motor vehicle the identity of which he is unable to ascertain ; or, where the injury was caused by a motor vehicle, he may collusively pretend ignorance because he fears that contributory negligence may be sheeted home to him, or for some other reason ; in either case it is difficult for a nominal defendant, ignorant of the facts, to break down the claim. ... ." > > (citation omitted.) > > (emphasis added.)

2. The defendant also filed and relied upon an affidavit of Jason Williams, affirmed on 5 December 2025, in which Mr Williams deposed to the following matters:

(a) when a claim for compensation is lodged with the TAC, one of the key indicators of common law "potential on the claim", is whether another driver is identified as being at fault;

(b) a report is generated on potential common law claims one month after the "no fault" claim is accepted by the TAC. Once a claim is "flagged" on the report, the common law support team undertake a review of the file to see what investigations are required to bolster the TAC's defence of any future claim. These enquiries will involve the "internal forensic team" who will be instructed to allocate the claim to an external investigation firm to undertake an investigation into the accident circumstances;[18]

(c) by reason of the fact that when it was received, the plaintiff's claim for compensation lodged with the TAC stated "No" to the enquiry whether another driver was at fault, that the police had not attended the scene and that the transport accident had not been reported to police, the claim was not "flagged" as having "common law potential". As such, no common law investigations were undertaken.

Material prejudice - Section 96(2)(b)

1. The plaintiff acknowledged that if the Court finds that the plaintiff did not give notice in accordance with the provisions of s96(2)(a) of the Act, then by the operation of s96(2)(b) of the Act, he bears the onus of proving, on the balance of probabilities, that this failure has not caused the defendant to be "materially prejudiced in its defence of the proceedings".
2. In Williams, Tadgell J determined that the assessment of prejudice runs from the date when the notice should have been given until when it was actually given.[19]
3. The plaintiff submitted that the Court can be satisfied that there could be no material prejudice caused to the defendant in mounting its defence of the proceedings, since by very shortly after the transport accident, and certainly by 6 March 2018, there would not have been any realistic prospect of ascertaining the identity of the offending vehicle, given the circumstances of the transport accident. The evidence before the Court demonstrates that within minutes of the transport accident, the opportunity to ascertain the identity of the vehicle had passed. As was noted at the trial, the transport accident happened "in the blink of a second" on a remote and little-travelled minor country road.[20] The plaintiff's unchallenged evidence was that he had passed no other cars in his approximately 30-minute journey to the point of the transport accident.
4. The plaintiff submits that it is no more than speculation that there was some possibility of obtaining video surveillance or dashcam evidence at or near the site of the transport accident which would have shed any light on its circumstances. The evidence of the make and colour of the other vehicle demonstrates that it was a very common or even "ubiquitous" vehicle on Victorian roads at that time.
5. At the hearing which took place on 8 December 2025, Senior Counsel for the plaintiff placed reliance on the content of the affidavit of Jason Williams affirmed on 5 December 2025, insofar as Mr Williams deposed to the fact that when a claim form is received, the potential for the matter to become a common law claim will be assessed on whether or not the claim states that another driver was at fault. In particular, reliance was placed on the fact that even if this question had been answered "Yes", Mr Williams deposes to the fact that once a claim is "flagged" as having common law potential, a period of at least one month passes before any investigation is undertaken.[21] Senior Counsel for the plaintiff relied upon this matter in support of his submission that the evidence should satisfy the Court that there is no investigation which the defendant could have undertaken in the aftermath of the transport accident, especially with the passage of time as deposed to by Mr Williams, which would have had any realistic prospect of identifying the unidentified vehicle involved in the transport accident.
6. In relation to the issue of material prejudice, the defendant made the following submissions:

(a) sub-section 96(2)(b) of the Act requires consideration of the prejudice not only occasioned by the delay, but also occasioned by omissions, insufficiencies and defects in the notice that was given;

(b) the Claim Form describes circumstances of injury in which there is no negligence on behalf of the other driver, or at least no negligence causative of injury; that is, that the plaintiff was injured by reason of hitting a pothole. Although the Section 96 Statement provided in 2023 suggests wrongdoing on behalf of the unidentified driver, it contains material inconsistencies and omissions when contrasted with the evidence adduced at trial;

(c) by reason of the defects in both the Claim Form and the Section 96 Statement, at no time prior to trial was notice given which complied with s96(2)(a) of the Act, even if it had been provided within a "reasonable time". The relevant prejudice to be assessed in relation to delay is therefore that which arose between the time of the transport accident and the commencement of the trial;[22] alternatively, the date of the Section 96 Statement in 2023;

(d) beyond delay, there is also prejudice occasioned by the omissions, insufficiencies or defects in the notice that was provided. As set out above, those inadequacies include:

(i) failure to give notice that a pothole was not relevant to the circumstances of injury;

(ii) providing misleading information about the relevance of a bend in the road, and failing to advise that the unidentified trailer wobbled, jack-knifed, and lost control after initially moving to the left-hand side of the road;

(iii) the plaintiff's statement in the Section 96 Statement that he did not recall any further information in relation to the unidentified vehicle, when in fact he recalled information about the contents of the trailer. This information may have been relevant if earlier notice had been given;

(e) the absence of timely and accurate notice of the circumstances of injury which were pursued at trial, deprived the TAC of the opportunity to:

(i) make meaningful enquiries of the state of the road as it existed at the time of the accident:

1. to identify the presence and/or absence of the pothole, in particular, to disprove the plaintiff's evidence at trial that the pothole was not relevant to the accident; and
2. to understand what (if any) role the "very unlooked after" and "very bad" condition of the road[23] played in the unidentified vehicle getting a "wobble", "jack-knifing", and losing control. This may have led to investigating whether liability lay with a third party, such as a relevant road authority;

(ii) make enquiries of local tips, including the Echuca Resource Recovery Centre (located to the East of the accident site) which may have had CCTV recordings available, noting that the plaintiff gave evidence at trial that the trailer was "loaded up with steel objects", possibly "strap (sic) metal";[24]

(iii) make enquiries of potential witnesses who may have recognised the unidentified driver's vehicle, noting it was the "first and only" car the plaintiff observed on the date,[25] it was a stand-out vehicle,[26] and the plaintiff's evidence that "the farmers in the area there, they cart all sorts of stuff they can use on the farms", suggesting the driver may have been local;

(f) no report was made to police[27] and the plaintiff himself did not make any enquiries,[28] so the potential avenues for investigation were not contemporaneously explored and the trail was likely "cold" by the time of the Section 96 Statement given in 2023;

(g) in summary, if proper notice had been given within a reasonable time, there is a possibility that investigations could have revealed facts about the accident, including by examination and inspection of the geography of the accident site, and indeed, the driver of the unidentified vehicle may have been located.

1. Having considered all of the evidence and the submissions in this matter, I am satisfied that the Claim Form, does not satisfy the notice requirements in s96(2)(a) of the Act. That is because it does not contain "notice in writing of [an] intention to make the claim".
2. It is clear from a reading of the words of s96(2)(a) of the Act, that a reference to "the claim" in that section, is a reference to a claim for "damages" under the Act. The Act contains separate and distinct regimens for making "no fault" claims[29] and claims for "damages".[30] A claim for damages will necessarily involve an allegation that another driver was at fault, even if the other driver cannot be identified. Thus, in considering whether the Claim Form could constitute notice for the purposes of s96(2)(a) of the Act, regard must be had to the fact that on that document, when asked whether another driver was at fault, the plaintiff answered "no". In those circumstances, I cannot be satisfied that the Claim Form constituted "notice in writing of an intention to make" a claim for damages.
3. As noted above, it was admitted by Senior Counsel for the plaintiff that the Section 96 Statement, does not comply with the notice requirements of s96(2)(a) of the Act, since it does not set out the "general nature of the injuries". I note that it also refers to the accident being caused in part, by the unidentified vehicle veering onto the plaintiff's side of the road, after coming around "a bend" in the road. This version of events does not reflect the evidence as it emerged at the trial. Thus, at least in those respects, while the document purports to be notice for the purposes of s96(2) of the Act, I find that it is "defective" for the purposes of s96(2) of the Act.

1. Given the findings I have already made, it is not strictly necessary to consider the issue of whether those documents were provided to the TAC within a "reasonable time".
2. Nevertheless, in case I am wrong in my conclusions about whether either the Claim Form or the Section 96 Statement constitute "notice" for the purpose of s96(2)(a) of the Act, the next matter for consideration is whether either document was provided to the TAC "within a reasonable time" after the plaintiff knew that the other vehicle was an unidentified vehicle.
3. The evidence satisfies me that the plaintiff was aware that the vehicle was an unidentified vehicle on the day of the accident. So much is clear from his statements given in his viva voce evidence, most tellingly, his evidence that he did not call the police because, "... I didn't see any need to because he'd gone. Who was I going to report [to] ... I was miles from anywhere ...".[31] In addition, during his evidence, when asked whether he ever made any enquiry as to the identity of the driver, the plaintiff said "It could have been anybody. I don't know ... How could I? ... There was nothing to enquire about. I had nothing to enquire for ... ."[32]
4. Having considered all of the evidence, together with relevant case law and the submissions made by the parties, I am satisfied that if the Claim Form otherwise satisfied the requirements of s96(2)(a) of the Act, then having been provided to the TAC on 6 March 2018, only eleven days after the date of the transport accident, that document could properly be considered to have been provided "within a reasonable time" after the plaintiff became aware that the vehicle was an unidentified vehicle.
5. By contrast, I cannot be satisfied that the Section 96 Statement, having been provided more than five years after the transport accident, was given to the TAC "within a reasonable time" after the plaintiff became aware that the vehicle was an unidentified vehicle.
6. In reaching this conclusion, I have considered the submission made by the plaintiff that in order to make a claim for damages, it is necessary for the plaintiff to prove that he had suffered a serious injury. It was submitted by the plaintiff that the evidence demonstrates that it was not until shortly prior to the date of the Section 96 Statement in October 2023, that the plaintiff became aware that he had a common law claim that ought be pursued.
7. However, contrary to this submission, the evidence clearly demonstrates that the plaintiff had consulted his present solicitors by at least May 2021,[33] more than two years prior to the date of the Section 96 Statement. The date on which solicitors were first instructed, is a matter which was taken into account by her Honour Judge Kings in Kirk, in determining what constituted notice given "within a reasonable time" after the plaintiff became aware that the vehicle was an unidentified vehicle.
8. Having regard to all of these matters, I reject the plaintiff's submission that the Section 96 Statement was given to the TAC "within a reasonable time" for the purposes of s96(2)(a) of the Act.

1. As has been referred to above, in circumstances where it is found that the plaintiff did not give notice as required by s96(2)(a) of the Act, he may still be entitled to claim damages if he satisfies the Court that the TAC has not been materially prejudiced in its defence to the proceedings for recovery of damages, by reason of such failure.
2. In order to consider this matter, it is necessary to examine the evidence which emerged during the trial and during the hearing on 8 December 2025, on which the plaintiff relies to satisfy his burden of proof.
3. The relevant evidence is as follows:

(a) the transport accident occurred on Prairie Road, Serpentine on 23 February 2018.[34] The plaintiff had travelled there from Murrigum Holiday Camp.[35] When the transport accident occurred, he was about half-an-hour from the Murrigum Holiday Camp,[36] and "around about" 40 or 50 kilometres out of Serpentine.[37] There is "nothing there" in Serpentine.[38] The stretch of road where the transport accident occurred is "a straight stretch of road ...",[39] which the plaintiff estimated was more than 800 metres long.[40] The plaintiff agreed that the transport accident "all happened in a blink of a second and [the unidentified driver] was off and gone";[41]

(b) Prairie Road is "just a road that everybody uses for their trucks and all sorts of things, carting their cattle and whatever".[42] The location of the transport accident is "in the middle of nowhere"[43] and "miles away from anywhere".[44] It is "a back road";[45];

(c) the plaintiff had not seen any cars prior to the transport accident, other than the unidentified vehicle;[46]

(d) just prior to the transport accident, the unidentified vehicle "... sort of jackknifed with the trailer or something ...",[47] in that "... he sort of ... got a wobble up, and I thought, oh, this is pretty dangerous, and then he headed out straight at me, lost control ...";[48]

(e) the other vehicle looked to the plaintiff to be a white Commodore, which the plaintiff imagined was a station wagon, viz, "... at the time - it looked like it, yeah". It was towing a tandem axle trailer which had "a lot of junk on the back,"[49] the trailer was "loaded up with steel objects. I don't know if it was [scrap] metal or what he had ...",[50] whatever it was "It had a load of stuff on it ... Just stuff sticking up on the back of it, that I could see when he come (sic) towards me ... I could see that he was carting something or other ... Miscellaneous, I'd say ... ."[51] The plaintiff gave evidence that the load on the trailer did not appear to be a piece of machinery, viz: "it wasn't sitting up that high, no";

(f) it was put to the plaintiff that the unidentified vehicle could have been going to the tip. In response to this, he said, "Well, the farmers in the area there, they cart all sorts of stuff they can use on the farms." When asked if the driver of the unidentified vehicle could have been a farmer, the plaintiff replied, "It could have been anybody. I don't know";[52]

(g) the transport accident occurred on a long, straight stretch of road. The plaintiff would not be able to take the Court to the exact spot where the transport accident occurred.[53] When he returned to the scene of the transport accident with his solicitor, the plaintiff was unable to precisely identify the place where it occurred.[54] The road all looks the same;[55]

(h) by the time the plaintiff had recovered after his car went into the ditch, "The other car was missing ... He was gone ... I looked up the road and I couldn't see anybody but a cloud of dust ... ."[56] The plaintiff gave evidence that the unidentified driver "... just went up the road to wherever he was going."[57] The transport accident happened in "a blink of a second" and the unidentified vehicle was "off and gone";[58]

(i) he did not make enquiries about who the driver might have been because, "How could I?"[59] He did not ask anyone else to make these enquiries, because "There was nothing to enquire about ... What could I do?"[60]

(j) he did not report the transport accident to police because "I didn't see any need to because he'd gone ... I was miles away from anywhere";[61]

(k) when pressed as to whether this vehicle was a "stand out" because it was towing a tandem trailer, the plaintiff initially concurred, but then added, "They have a lot of tandem trailers on them highways";[62]

(l) when he steered left, the plaintiff hit a rough patch of bitumen, not a pothole;[63]

(m) the Claim Form was lodged on 6 March 2018 and the "no fault" claim was accepted on the same date.[64] Had the Claim Form noted that another driver was at fault, that would have resulted in the TAC "flagging" the claim as having "common law potential" in a report. That report would have been generated by the TAC a month after the acceptance of the no fault claim;[65]

(n) once a claim is flagged as having common law potential, the matters are referred for an internal forensic investigation to be undertaken;[66] and

(o) given this fact, the earliest date on which any investigation into the transport accident would have been commenced by the TAC, was approximately six weeks after the date of the transport accident.

1. Having considered all of the relevant evidence, together with the submissions of both parties, I am satisfied that the plaintiff has proved to the requisite standard, that there was nothing arising from the plaintiff's failure to provide notice in accordance with s96(2)(a) of the Act, which materially prejudiced the TAC in its defence to the proceedings for recovery of damages.
2. As was rightly pointed out by Senior Counsel for the TAC, the defendant has nothing to prove in relation to this matter. Nevertheless, it is instructive as part of my assessment of this issue, that in its written submission, the TAC gives examples of the material prejudice which it says it may have suffered as a result of the plaintiff's failure to give notice in accordance with the Act. In particular, the TAC submits that by reason of the plaintiff's failure to give notice in accordance with s96(2)(a) of the Act, it was deprived of the opportunity to:

(a) investigate the relevant stretch of road;

(b) inspect the road surface at the scene of the transport accident;

(c) take measurements at the scene of the transport accident;

(d) make enquiries which may have revealed the identity of the driver of the unidentified vehicle, for example by obtaining any CCTV footage which may have been held by the Echuca Resource Recovery Centre; and

(e) make enquiries of potential witnesses who may have recognised the unidentified driver's vehicle.

1. As to the prospect of the TAC, through its investigators, having been able to inspect the scene of the transport accident, including to inspect the road surface, ascertain the contribution (if any) of a pothole or loose surface to the occurrence of the transport accident and to take measurements, the evidence satisfies me, and I find, that the plaintiff does not know the precise location of where the transport accident occurred. That is because of:

(a) the nature of the scene of the transport accident, namely a straight stretch of road more than 800 meters long, which "all looks the same";[67] and

(b) the transport accident having occurred in a "blink of a second".[68]

1. I find that this impediment to the TAC being able to investigate the physical aspects of the scene at which the transport accident occurred, arose by reason of the particular location and circumstances of the transport accident, and is therefore unconnected with the failure by the plaintiff to give notice "within a reasonable time" for the purposes of s96(2)(a) of the Act. I find that this impediment and any prejudice which arose in the TAC's ability to defend the claim, would have existed even if the plaintiff had given notice in accordance with s96(2)(a) of the Act, on 6 March 2018.
2. As to the prospect of the TAC identifying the driver of the unidentified vehicle, the evidence satisfies me on the balance of probabilities, and I find that:

(a) the transport accident occurred on a remote, country road;

(b) the transport accident occurred suddenly, and following it, the unidentified vehicle "... just went up the road to wherever he was going ...";[69]

(c) the plaintiff formed the view that there was no point in trying to track down the driver of the unidentified vehicle, because "How could I?"[70] and "There was nothing to enquire about. ... What could I do?"[71] and "It could have been anybody. I don't know ..."[72] and "... I was miles away from anywhere ...";[73]

(d) there is nothing about the plaintiff's description of the unidentified vehicle which would have made it likely that local enquiries would have successfully identified either the vehicle or its driver;

(e) the plaintiff's evidence about the nature of the goods being carried on the trailer did not make it probable, either:

(i) that the driver was a local farmer, viz: "It could have been anybody. I don't know";[74] or

(ii) that the driver was heading to a particular destination, including the Echuca Resource Recovery Centre;

(f) even if notice had been given in accordance with the requirements of s96(2)(a) of the Act on 6 March 2018, no report would have been generated in relation to the transport accident until at least a month later. The evidence from Mr Williams satisfies me, and I find, that such forensic investigation as would then have been considered necessary, would have commenced sometime after that. On the basis of this evidence, I find, on the balance of probabilities, that no meaningful enquiries would have been commenced on behalf of the TAC until at least six weeks after the occurrence of the transport accident;

(g) given this, I find, on the balance of probabilities, that the likelihood of locating any business which possessed and had preserved any CCTV footage that might have captured images of the unidentified vehicle, was at best, remote. Commonsense would indicate, and I further find, that such possibility of locating any useful CCTV footage, remote as it was, diminished with each day that passed; and

(h) in those circumstances, I am satisfied that there was no realistic prospect of the TAC locating the unidentified vehicle. In relation to the TAC's submissions as to what steps it would have taken if given the opportunity, I note the words of Tadgell J in Wiliams, which are apposite to this case, viz:

"... an optimistic hope that something could be revealed ... could not negate an awareness or consciousness that no reasonable possibility (let alone a probability) existed of ascertaining the identity of the other car ... This seems to accord with common sense. ... ."[75]

1. In light of the evidence in this matter, I find that the impediments to the TAC being able to investigate the identity of the unidentified vehicle and its driver and any prejudice to its defence of the claim which arose as a result, would have occurred whether or not notice had been given within a reasonable time for the purposes of s96(2)(a) of the Act. These impediments arose due to the remote location of the transport accident and the time which would inevitably have passed prior to the commencement by the TAC of any meaningful investigation into the circumstances of the transport accident and the identity of the unidentified vehicle and its driver.
2. In the circumstances, I am satisfied that the plaintiff has proven to the requisite standard, that the TAC has not been materially prejudiced in its defence to the proceedings for the recovery of damages, by the failure of the plaintiff to give notice at the proper time, or by any omission or insufficiency or defect in such notice as was given.

1. In light of all of the evidence in this matter and taking into account each of the findings I have made above, I am satisfied to the requisite standard of the following matters:

(a) the Claim Form dated 6 March 2018, does not satisfy the notice requirements in s96(2)(a) of the Act;

(b) the Section 96 Statement dated 30 October 2023, does not satisfy the notice requirements in s96(2)(a) of the Act; and

(c) pursuant to s96(2)(b) of the Act, the plaintiff's failure to give notice as required by s96(2)(a) of the Act, has not materially prejudiced the defendant in its defence to the proceedings for the recovery of damages.

1. Judgment will be entered for the plaintiff in accordance with the jury verdict. I will hear the parties in relation to the form of the orders that should be made, including in relation to the question of costs.

[2] Walters v Incorporated Nominal Defendant [1982] VicRp 55; (1982) VR 541 ("Walters"), at 542 and 545; Williams v Incorporated Nominal Defendant [1986] VicRp 20; [1986] VR 169 ("Williams"), at 171 and 176, and Hyland v Transport Accident Commission [2024] VSC 641, at paragraph [84]

[5] [2014] VSC 291 ("Lakic")

[6] [2019] VCC 1126 ("Kirk")

[7] Jessup & Anor v Fremder [2001] VSC 100

[8] Kirk, at paragraphs [29] and [38]

[9] Transcript ("T") 105, Line/s ("L") 5-13

[15] See Williams, at 173-174, per Tadgell J

[16] See Walters, at 546 per Brooking J

[17] (1944) SR (NSW) 241, at 245

[18] Affidavit of Jason Williams affirmed 5 December 2025, paragraphs [3]-[5]

[20] T153, L11; T154, L2; T167, L27 and T177, L25-26

[21] Affidavit of Jason Williams affirmed 5 December 2025, paragraph 4

[22] See paragraphs 13, 17, and 18 of the defendant' submissions

[63] See for example T59, L9; TT61-62; T160, L6-9; T161, L24-28; T162, L2-3 and L11-14; T183, L19-20; T190, L24-30; T213, L24-26

[65] Affidavit Jason Williams affirmed 5 December 2025, paragraphs 3 and 4

[66] Affidavit Jason Williams affirmed 5 December 2025, paragraphs 4 and 5