The Nominal Defendant v Wardle

Mason P: I agree with Fitzgerald AJA. 2 Meagher JA: I agree with Fitzgerald AJA. 3 Fitzgerald AJA: On 1 April 1990, the first respondent, Warren John Wardle, was seriously injured. The trail bike which he was riding and a trail bike ridden by another young person collided. The collision took place on property owned by the second respondent, Fairfield Council. Both trail bikes were unregistered and uninsured. The rider of the other trail bike, named Paul Sammari, has not been located. 4 On 20 December 1999, Wardle obtained judgment in the District Court for $536,943.00 against the appellant, the Nominal Defendant. The Nominal Defendant's cross-claim against the Council was dismissed. 5 In his reasons for judgment, the trial Judge said: - "The identity of the vehicle itself appears clear to me, it was a Suzuki RM125 unregistered motorcycle which may have been, and probably was owned or at least ridden at the relevant time, by the man, Paul Sammari. I find as a fact that it was the rider of the uninsured and unregistered Suzuki motor cycle who was at fault in the collision and I find as a fact that the collision occurred because of the deliberate act of the rider of the Suzuki motorcycle in deflecting in his normal line and riding his cycle towards the plaintiff's oncoming motorcycle at a time when there was no proper cause to do so, and that had it not been for that unlawful and negligent act on the part of that rider, there would have been no collision."

6 Those findings, which were the foundation of Wardle's judgment against the Nominal Defendant, were based on the evidence of Wardle's cousin, Kevin Evan Filce. The Nominal Defendant submitted that Filce's confused and sometimes inconsistent evidence should not have been accepted. Alternatively, the Nominal Defendant submitted that Wardle was contributorily negligent in failing to avoid the collision and in failing to wear a helmet, which it was said would have eliminated or at least substantially diminished his injuries. Further, the Council was negligent and would, if sued, have been liable to Wardle because of its failure to prevent unsupervised trail bike riding on its land. 7 Wardle does not dispute that his judgment against the Nominal Defendant must be set aside unless the collision occurred on a "Public street" as defined in s 3 of the Motor Accidents Act 1988 at the date of the collision: see s27 of the Motor Accidents Act. At the material time, s 3 of the Motor Accidents Act provided that a "Public street" included any "…place open to or used by the public.." 8 Wardle also accepts that the time within which he was entitled to commence his action against the Nominal Defendant without the leave of the Court expired on 1 October 1993, and that no notification of his claim was given to the Nominal Defendant until October 1994. Wardle made an application for leave to commence his action pursuant to s 52(4) of the Motor Accidents Act on 19 December 1994. The Nominal Defendant submitted that leave was correctly refused by Master Malpass on 22 August 1996 and that Simpson J erred when, on 24 November 1997, her Honour granted Wardle leave to commence proceedings against the Nominal Defendant within one month of that date.

Public Street 9 The trial Judge described the large area of land on which the collision occurred in the following terms: - "The council reserve, as I have referred to it, occupied many hectares. It comprised grassed areas, some of which was mown, some of which had longer grass. There was a significant area of swampy ground, and at least one creek passing through the reserve area. On the opposite side of the reserve from Windermere Street a portion of the reserve was in the adjoining municipality controlled by the Holroyd Council. On the Fairfield Council side of the reserve there was an area adjacent to the bike track where the Fairfield Council stored items such as large concrete pipes and various items of rubbish. There was another adjacent area known as the 'recycling centre' where goods of some commercial value were located. As at the date of the collision, there was no physical means of delineation between any of the areas in that reserve that I have just described. Fences ran along part of the street frontage to Windermere Street and Hassall Street, but these appear to have had the primary purpose of preventing four wheeled vehicles from obtaining access to the reserve out of hours, or to prevent people in four wheeled vehicles from removing goods from the recycling centre. On the evidence before me, it is clear that there were many means of entry into the reserve in general, and the bike track area where the plaintiff was injured, in particular. It was clear on the evidence that both trail bike riders and pedestrians came onto the reserve either by coming from the Holroyd Council side or by walking through broken sections of fence, or by riding over the earth mound… During week days the roadway on which the plaintiff was injured, which was an unmade roadway, appears to have been used by council workers as an access road to the storage area for pipes and the like and also to obtain access to the recycling area. There was no evidence from anyone from the Fairfield Council other than a gentleman, Terry Potts, who worked as a superintendent for the council. Mr Potts said that there were no council activities carried out at the reserve on the weekends. Mr Potts said that the council 'had a problem' with trail bike riders… He said that the track below the recycling centre bore obvious signs of being used by trail bike. He said that the council knew that the area was being used by trail bikes, and whilst it was the council's policy that they should not use the area, as a matter of fact, the council tolerated trail bike riders using the area. He agreed that trail bike riders such as the plaintiff could come and go on weekends completely unimpeded. Mr Potts said that in or about 1990 the council erected some signs…saying, 'No trail bike riding'. He said that these signs were placed on the creek line.

10 His Honour held that the place where the collision occurred was a "Public street" because it "..was, as a practical matter, open to the public and was in fact used by many members of the public, including pedestrians, trail bike riders and the of the trail bike riding activities." 11 While the Council might be said to have 'tolerated' trail bike riders in the sense that it did not enforce their exclusion, I doubt whether that made the area which they used "open to them" in the material sense: see Boyton v Nominal Defendant [1980] 2 NSWLR 509; Mercantile Mutual Insurance Co. Limited v W. Turner Pty Limited (1982) 1 NSWLR 728; Markwort v The Nominal Defendant [1999] NSWCA 267.

12 In any event, the trial Judge's summary of the evidence overestated the nature and extent of the use of the material section of the land, that is, the part on which trail bikes were ridden. That part of the land was used only by Council employees in the course of their duties and, on weekends, contrary to the Council's policy, by a small group of young trail bike riders and sometimes a small group of spectators. Other use of the overall land seems to have been substantially confined to occasional pedestrians along trails some distance away on the banks of the creek. 13 In Schubert v Lee (1945) 71 CLR 589, the High Court said at p 592: "The words 'open to or used by the public' are apt to describe a factual condition consisting of any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use.

14 The very limited evidence did not persuade me that the material section of the land was "open to or used by the public". Accordingly, I am not satisfied that the collision occurred on a "Public street". However, it is unnecessary to decide the appeal on that basis.

Leave to Proceed 15 As noted earlier, Master Malpass refused leave on 22 August 1996 but Simpson J granted leave on 24 November 1997. An application by the Nominal Defendant for leave to appeal was refused by two members of this Court on 2 February 1998. At that time the Court was not persuaded "..that the judgment of Simpson J is vitiated by appellable error given that it relates to a discretionary judgment", but added "..that it would be open to [The Nominal Defendant] if it suffers an adverse final judgment to reagitate the matter for which leave has presently been sought and to do so in a context in which prejudice, if any, at the final trial can be more clearly determined." 16 Wardle submitted that the evidence at the trial did not establish prejudice to the Nominal Defendant more clearly than previously, or that the Nominal Defendant sustained prejudice additional to that recognised by Simpson J. I will proceed on that basis. Nonetheless, as was acknowledged when leave to appeal was refused, it remains open to the Nominal Defendant to appeal against the final judgment in Wardle's favour on the basis that leave to proceed should not have been granted. 17 In Holt v Winter (2000) 49 NSWLR 128, three other members of the Court agreed with the judgment of Sheller JA. After a review of the authorities to that time, his Honour said (at para 119): " In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant."

18 Wardle did not challenge the correctness of Sheller JA's view or its application to this case or dispute that, as the Court subsequently stated in BHP Steel (AIS) Pty Limited v Lakovski [2000] NSWCA 334, there is significant prejudice in the material sense if the trial of the proposed action would not be (or was not) fair to the defendant. 19 However, Wardle argued that, although both Master Malpass and Simpson J referred to the prejudice to the Nominal Defendant, which Simpson J described as "significant", the difficulties caused by Wardle's delay did not constitute "significant prejudice" in the sense used in Holt v Winter 49 NSWLR 128 and that the trial which was held was fair to the Nominal Defendant. 20 In her reasons for judgment, Simpson J said: - " Prejudice to the Respondent The [Nominal Defendant] made out a strong case of actual as well as presumed prejudice. It relied on evidence of its searches to locate the person identified by [Wardle] as the rider of the motorcycle with which he had collided… Despite substantial efforts… there has been no success locating this individual. [Wardle] has no recollection of the accident and has retrograde amnesia to about a week before. There is only one known witness to the collision, and that is a cousin and associate of [Wardle] who was riding with him at the time. There is virtually no opportunity for the [Nominal Defendant] to investigate the circumstances in which the accident occurred. Although there is evidence that the police have been involved and have made some investigations, enquiries made of police have produced nothing in the way of note books, occurrence pad entries or other records of contemporaneous investigation… Had the [Nominal Defendant] been given early notice of [Wardle's] claim it may well have been in the position to make its own investigations and to locate Sammari or other witnesses. It may have obtained copies of any police records before they were lost or destroyed…. I accept that the absence of early notice to the [Nominal Defendant] constitutes a matter of real prejudice." 21 Later, her Honour referred to "..the very significant prejudice caused to the [Nominal Defendant] by the loss of the opportunity to locate witnesses to the accident" and stated that "even if they were now to be located, their recollections could not be expected to be as fresh as they would have been six months, or even three and a half years, after the event." Subsequently, her Honour referred again to "the strong case made by the [Nominal Defendant] of actual prejudice", which she described as "considerable". 22 Wardle's case that the rider of the other trail bike deliberately swerved towards him was supported only by the evidence of his cousin, Filce. There were inconsistencies in that evidence, and critical parts of it were confused and confusing. That might well have been, as suggested by Wardle, caused by Filce's illiteracy and his difficulty in distinguishing between left and right. Nonetheless, Wardle could not succeed unless Filce's evidence was accepted, as it was. Other evidence, if available, might have led to the rejection of Filce's evidence upon which Wardle's case depended. Each of Wardle and Filce gave evidence that he was informed by a police officer that accounts of what occurred which had been given by other persons who were present differed from Filce's version. 23 By the time Wardle first notified the Nominal Defendant of his claim, it had lost the opportunity to obtain that evidence. As a result, it effectively lost the ability to challenge Wardle's case at trial. That constituted "significant prejudice" in the sense used by Sheller JA in Holt v Wynter (2000) 49 NSWLR 128. Accordingly, leave to proceed should not have been granted. 24 The Nominal Defendant's appeal against the judgment in favour of Wardle must therefore be allowed with costs. In the circumstances, its appeal against the dismissal of its cross-claim against the Council should be dismissed with costs. The parties should file short minutes to give effect to the Court's judgment.

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