Hall v Nominal Defendant [1966] HCA 36

High Court of Australia Barwick C.J. Taylor, Windeyer and Owen JJ. Hall v Nominal Defendant [1966] HCA 36

ORDER Special leave to appeal granted. Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 23 Barwick C.J.

The appellant, whilst a passenger in a car driven by Mr. Warren in New Town, Hobart, on 2nd August 1962 was severely injured when the car ran into a pole carrying electric power lines. As a result he was confined to hospital until May 1963. Apparently his wife conveyed his instructions to a solicitor to take action to recover damages for his injuries. The appellant in those instructions claimed to have seen a light of an oncoming but unidentified vehicle which had forced Mr. Warren's vehicle off the road. Consequently, the solicitor on 23rd August 1962 sent a notice to the Attorney-General of Tasmania complying with the provisions of s. 65A (2) of the Traffic Act 1925 (the Act) and advising that the appellant intended to make a claim against the nominal defendant.

Thereafter the solicitor saw the statements made to the police by witnesses to the occurrence, including a statement by Mr. Warren which suggested the presence of another vehicle. The others of those witnesses did not see any other vehicle. He also conversed with some of these witnesses and with other people, none of whom saw any second vehicle at the time of the impact. The solicitor then decided that upon all this information it was too risky for his client to sue the nominal defendant and that he should not do so. He issued a writ on 23rd January 1963 against Mr. Warren alone, though at that time the period limited for the commencement of an action against the nominal defendant had not expired. It did expire on 2nd February 1963.

However, in August 1963, Mr. Warren caused a third party notice to be served on the nominal defendant. The plaintiff's action and the third party claim were heard together between the twelfth and twentieth days of May 1964. The nominal defendant, who had knowledge of all available witnesses, called some of them to dispute the presence of any second vehicle.