Vines v Djordjevitch [1955] HCA 19

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. Vines v Djordjevitch [1955] HCA 19

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dixon C.J., McTiernan, Webb, Fullagar and Kitto JJ.

This is an appeal as of right from an order of the Supreme Court of Victoria by which an appeal from a judgment of the County Court at Ballarat was dismissed. The appellant is the nominal defendant, appointed under s. 47 of the Motor Car Act 1951 (No. 5616) Vic, in an action of negligence for personal injuries in which the plaintiff, who is the respondent in the appeal, recovered by the verdict of the jury £1,200 damages.

The plaintiff was knocked down by a motor vehicle about 7 p.m. on the evening of 12th June 1953 as she was attempting to cross a street in Ballarat. She was rendered unconscious. All that she can say is that she heard the noise of an engine of what she took from the sound to be a motor cycle and then remembered no more until she regained consciousness in hospital. The motor vehicle which struck her has not been identified.

Section 47 (1) provides that where the death of or bodily injury to any person is caused by or arises out of the use of a motor car, an expression which includes motor cycle, but the identity of the motor car cannot be established any person who could have obtained a judgment against the driver of the motor car in respect of such death or bodily injury may obtain against a nominal defendant, to be named by the Minister, the judgment which in the circumstances he could have obtained against the driver of the motor car. There follows a proviso, and it is upon the proviso that the appeal turns: "Provided that no such judgment may be obtained unless such person as soon as possible after he knew that the identity of the motor car could not be established gave to the Minister notice of intention to make the claim and a short statement of the grounds thereof".