Howell v Nominal Defendant [1962] HCA 4

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Howell v Nominal Defendant [1962] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1962, Feb. 9 McTiernan J.

This action is brought with the aid of s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W.. It is an action to recover damages for personal injury suffered by the appellant in consequence of something like a head-on collision between a motor car he was driving and another car which a man named Black was driving. The action is not, of course, against Black: he is not charged in the action with negligence. The allegation of negligence is made against the owner or driver of a motor car which, as the appellant alleges, struck his motor car from behind and thereby forced it off its course against Black's car. The appellant sues the respondent on the footing that the identity of the overtaking car could not, after due inquiry and search, be established and that the respondent is liable by the Act to pay the appellant damages for the injury he sustained out of moneys provided by the authorized insurers in accordance with Div. 4. The particular feature of the case is that the evidence involves two motor cars in the allegation of negligence, and as to one of them, that driven by Burns, its identity was established before action: and as to the other, described as the grey car, it was clearly open to the jury to find that its identity was not established, after due inquiry and search.

In directing the jury, Walsh J. said, in effect, that if they found that the collision was caused by the negligent driving of Burns' car they could not give a verdict against the respondent, because s. 30 (2) (a) provides a remedy only if the aggrieved party does not know before action the identity of the car which injured him. But he left it to the jury to find whether, after due inquiry and search, the identity of the grey car could be established and whether the negligent driving of that car caused the collision between the appellant's car and Black's car. The jury found a verdict for the defendant. The appellant applied to the Full Court of the Supreme Court for a new trial of the action on the ground that the directions of Walsh J. are not warranted by s. 30 (2) (a). The majority, Herron and Collins JJ., upheld the directions. Macfarlan J. was of the opinion that the direction as to Burns' car is not correct.