New South Wales District Court CITATION: Aitcheson v Nominal Defendant, GIO NSW and Ambulance Service NSW [2008] NSWDC 237 HEARING DATE(S): 8-9 October 2008 JUDGMENT DATE: 7 November 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ 1 Each of the motions is dismissed. 2 The proceedings are dismissed. DECISION: 3 The applicant is to pay the defendants' costs of the motions and of the proceedings. 4 The exhibits will be retained for 28 days. 5 Reasons published. CATCHWORDS: LIMITATIONS - extension of time in respect of deceased's cause of action - 25 years from date of injury - inadequacy of evidence to support applications. Compensation to Relatives Act 1897 Law Reform (Miscellaneous Provisions) Act 1944 LEGISLATION CITED: Limitation Act 1969 Motor Vehicles (Third Party Insurance) Act 1942 and Regulations Motor Vehicles Insurance Act 1936 QLD CASES CITED: Dedousis v The Water Board (1994) 181 CLR 171 Drayton Coal Pty Ltd v Drain U/R NSWCA 40418/95, 9.8.95, BC9505244 Jennifer Lois Aitcheson - Plaintiff PARTIES: The Nominal Defendant - First defendant The Government Insurance Office of NSW - Second Defendant The Ambulance Service of NSW - Third defendant FILE NUMBER(S): Newcastle 365/06 A Katzmann SC - D S Stanton - Plaintiff COUNSEL: P R Cummings - First & Second Defendant S J Harben SC - Third Defendant Ross Pfennigwerth - Plaintiff SOLICITORS: Sparke Helmore - First & Second Defendants Rankin Nathan Lawyers - Third Defendant JUDGMENT 1 A number of applications were made in this matter and they involved issues of considerable complexity. 2 The applications related to the contraction by the late Mr Aitcheson of an infection through the Hepatitis B virus. It was claimed that he contracted the infection in the course of his work as an ambulance officer for the Ambulance Service of New South Wales. It was claimed specifically that he was infected with the virus when he attended to Ms Jacqueline Reynolds (then known as Jacqueline Kinnard (or Kinnaird)) after a motor vehicle accident in which she was involved as a passenger in the front seat of a vehicle. The motor vehicle accident occurred on 11 May 1983. 3 Mr Aitcheson died on 5 August 2003. At the time of his death he had not commenced any proceedings. 4 Mrs Patricia Aitcheson, his widow, commenced proceedings on behalf of herself, Mr Aitcheson's parents and her four children on 3 August 2006, claiming under the provisions of the Compensation to Relatives Act 1897. 5 The applicant faced the problem that Mr Aitcheson's claim was statute barred at the time of his death. The proceedings could be pursued only if an extension of time were granted in respect of the cause of action that might have been available to Mr Aitcheson before 10 May 1989. 6 It was later proposed to commence proceedings on behalf of Mr Aitcheson's Estate in respect of a claim for lost income. 7 There were therefore before the court the following applications: Motion filed on 12 June 2007 seeking leave to amend the statement of claim to deal with the identities of the defendants and to expand pleadings and particulars. The amended statement of claim alleged that only one motor vehicle was involved in the accident, that it was driven by Darren Gardiner, owned by Dawn Vigor and registered in Queensland. Motion filed on 31 August 2007 seeking an extension of time within which to commence the proceedings brought under the Compensation to Relatives Act. The application relied on s 60H of the Limitation Act 1969. Motion filed on 22 October 2007 seeking extensions of time within which to bring proceedings under the Compensation to Relatives Act and on behalf of the Estate based on ss 60D and 60H of the Limitation Act and leave to amend the statement of claim in various respects, including the addition of a claim made under s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 by the applicant on behalf of the Estate, as executrix of Mr Aitcheson's will, for wages lost by him in 2001, 2002 and 2003. Motion filed on 8 May 2008 for leave to amend further the statement of claim and for extensions of time within which to bring proceedings: (a) on behalf of the Estate – relying on s 60G of the Limitation Act; (b) in respect of the cause of action that would have been available to Mr Aitcheson – relying on s 60H(2); (c) under the Compensation to Relatives Act – relying on s 60H(2)(b). 8 It was apparent that, if the limitation period was extended in respect of the cause of action that would have been available to Mr Aitcheson to the date of his death, the claim brought under the Compensation to Relatives Act was commenced within time. 9 In preparing the proceedings there has been considerable confusion as to the appropriate identities of the defendants. It was agreed that if the extensions of time sought were granted, the appropriately named defendants would be the Nominal Defendant and the State of New South Wales. 10 The applications were supported by three affidavits of the applicant and seven affidavits of her solicitor, Mr Pfennigwerth, who was cross examined. 11 So far as could be ascertained from the confused state of the evidence before the court, the facts relating to Mr Aitcheson's ill health were: 1 Mr Aitcheson commenced employment with the Ambulance Service of New South Wales as an ambulance officer in November 1979. 2 A screening test undertaken by the Ambulance Service in 1984 returned a positive result to the Hepatitis B virus. Mr Aitcheson was told that in those circumstances he did not require vaccination and that he was immune to the virus. 3 A further test undertaken in June 1989 indicated that the virus had progressed to its active form. 4 In 1991 Mr Aitcheson was diagnosed as suffering from cancer in the form of Non Hodgkinsons lymphoma. 5 The combined effects of the cancer and the progress of the Hepatitis B viral infection were such that Mr Aitcheson was unable to continue to work after December 2001. 6 Mr Aitcheson died on 5 August 2003. The Coroner's certificate listed: As causes of death: (1) gastrointestinal haemorrhage; (2) Beta cell Non Hodgkinsons lymphoma; Other significant conditions contributing to death but not related to the conditions causing death: (1) Chronic Hepatitis B. (7) The death certificate issued on 18 August 2003 listed these three conditions as Cause of Death. 12 Prior to his death Mr Aitcheson made claims under the workers compensation legislation for various expenses and loss of income. The first such claim was made in 1989. Liability was accepted by the Ambulance Service on the basis that he contracted the Hepatitis B virus in the course of employment that involved contact with the blood and other bodily fluids of persons he attended upon as an ambulance officer. 13 Mr Aitcheson first sought legal advice in 1989 when the Ambulance Service restricted his duties resulting in the reduction of his income. His solicitor, Mr Bruce Jay, embarked on an investigation of the possible source of the infection. 14 Mr Aitcheson supplied Mr Jay with one hundred case sheets relating to persons he attended upon as an ambulance officer who could have been the source of infection. Mr Jay wrote to a large number of persons inquiring about their Hepatitis B status at the time of treatment by Mr Aitcheson. 15 The case sheets provided to Mr Jay covered the period from 1982 to 1985. Those completed in the period 1979 to 1981 were unavailable. 16 A response dated 3 November 1989 was received from Ms Reynolds. Mr Aitcheson attended to Ms Reynolds after the motor vehicle accident on 11 May 2003. She stated that she was involved in another accident on 16 November 1984, admitted to Royal North Shore Hospital, tested and diagnosed as Hepatitis B positive in the course of that admission. 17 A second firm of solicitors, McClellands, was consulted in 2000. 18 Mr Pfennigwerth took instructions from Mr Aitcheson in October 2002. Limitation Act Requirements 19 In order to qualify for the extensions of time sought under either s 60G or s 60H of the Limitation Act it was necessary that the applicant satisfy the requirements of S 60I(1) which provides: (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff first became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii). 20 There was no dispute that Clause 4 of Schedule 5 to the Act permitted the Court to apply s 60G to Mr Aitcheson's claim although his cause of action arose before 1 September 1990. 21 The limitation period expired alternatively: If the injury was suffered at the time of the motor vehicle accident in May 1983 – May 1989. If the injury was suffered when the Hepatitis B virus was diagnosed as active in April 1989 – April 1995 If the injury was suffered when the Hepatitis B infection was diagnosed as chronic and active in May 1990 – May 1996. 22 The requirements of the Limitation Act raised the following issues: 1 (a) whether and when Mr Aitcheson was aware of the matters listed in s 60I; and (b) whether and when he should have been aware of them. If it was determined that he was aware of those matters in a period three years prior to his death, then no extension of time within which to bring any claim could be granted. 2 (a) whether and when the applicant was aware of the matters listed in s 60I; and (b) whether and when she should have been aware of them. If it was determined that she was aware of those matters more than three years prior to the application made on 8 May 2008, then no extension of time within which to bring any claim could be granted. 3 Whether it would be just and reasonable to extend the limitation period to allow the claims to proceed. 4 In respect of the Nominal Defendant, whether the court was satisfied that it was the appropriate defendant. The claim against the State of New South Wales 23 The dates of events concerning Mr Aitcheson's health were: 1984 - informed that he tested positive to Hepatitis B and that he was immune to its effects. 1989 - informed that he was a carrier of the Hepatitis B virus. 1990 – diagnosed with chronic, active Hepatitis B with evidence of liver damage. 24 It was clear therefore that Mr Aitcheson was aware that personal injury in the form of chronic, active Hepatitis B had been suffered at the latest by 1990. 25 The applicant relied on evidence indicating that Mr Aitcheson was unaware at the time of his death that there was a causal connection between Hepatitis B and his subsequent contraction of Non Hodgkinsons lymphoma to establish that he was unaware of the nature and extent of the injury. It was said that the first indication that there was a connection was contained in a report prepared in November 2002 by Professor Duggan for the GIO, the workers compensation insurer of the Ambulance Service. This report was not made available to Mr Aitcheson. A copy was provided to the applicant in October 2003. 26 The difficulty with this argument was that the statement of claim in its currently amended form did not plead or rely upon any connection between the Non Hodgkinsons lymphoma and Hepatitis B. It claimed that Hepatitis B caused or materially contributed to Mr Aitcheson's death. 27 There was evidence that Mr Aitcheson's health was seriously affected by Hepatitis B once it became active and that chemotherapy provided to deal with the cancer had advanced the already significant damage to his liver. On the basis of this material, it was apparent that he was aware prior to his death not only of the nature of the injury but its extent. 28 The applicant relied upon a number of factors to establish that Mr Aitcheson was unaware of the connection between the injury and the act or omission of the Ambulance Service. 29 There was, however, material in the files of the various solicitors that indicated that Mr Aitcheson was aware of the connection between the conduct of the Ambulance Service and his injury. 30 Among the information that Mr Aitcheson provided to McClellands was a letter dated 23 July 2002 in which he stated that the Ambulance Service had not at the relevant time provided protection in the nature of gloves, glasses or clothing. 31 In a letter to Mr Pfennigwerth dated 27 October 2002 Mr Aitcheson stated, referring to the 1983-1984 period: May I state that at that period in the Ambulance Service of N.S.W. there was no protection such as – Gloves, Protective Eye Wear, etc available which left the officer's vulnerable. 32 In an undated statement that Mr Aitcheson provided to Mr Pfennigwerth he said that he initially received no training in infectious diseases or concerning the dangers of contact with blood in the four week period of training he undertook before commencing duties as a rescue officer. He stated: Had I known that I should have taken precautions I would have done and certainly, since then, at any accident scenes, rigorous precautions are taken to prevent infection. 33 As to when those protective measures were introduced, there was evidence that they were in place at least by 1989. Dr Philip Jones, Department of Infectious Diseases, The Prince Henry Hospital, wrote to Mr Jay on 15 September 1989, stating: … the precautions that Mr Aitcheson takes to protect himself from further infection with other blood-borne pathogens such as HIV would also protect his patients from infection. Accordingly, if it is considered that such measures are adequate to protect staff then they should be regarded as being adequate to protect patients as well. 34 I make the following findings: 1 Mr Aitcheson was aware by 1989 that he had suffered injury. 2 Mr Aitcheson was aware by 1990 of the nature and extent of his injury. 3 Mr Aitcheson was aware by 1989 that at the time of the motor vehicle accident in May 1983 measures were not taken by the Ambulance Service to protect him from infectious diseases. He was aware by at least 1989 that measures were available for that purpose. I infer from the material quoted in paragraph 32 that at least from 1989 rigorous precautions were taken to prevent infection of the type that he contracted. 35 In deciding whether the matters of which Mr Aitcheson was aware met the criteria set out in s 60I(a)(iii) of the Act, I have considered at length the authorities to which I was referred by the parties. Those authorities establish the following propositions: 1 The issue to be decided for the purposes of S60I(1)(a)(iii) was whether the applicant was ignorant of the existence of acts or omissions rather than legal conclusions. The legal consequences of those facts or circumstances, that is whether they amounted to actionable negligence, and the whether the applicant was aware of that legal consequence, was not the issue. Dedousis v The Water Board (1994) 181 CLR 171 at 181. 2 If a plaintiff alleges that his or employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s60I(1)(a) will be satisfied. Dedousis v The Water Board (1994) 181 CLR 171 at 181 -182. 3 The court is required to look to the particulars of negligence alleged in the statement of claim to determine whether the applicant was aware of relevant acts or omissions at the relevant time. Gleeson CJ in Drayton Coal Pty Ltd v Drain U/R NSWCA 40418/95 9.8.95, BC 9505244, @ [4]. 4 The particulars of negligence to be taken into account are those that are material having regard to the statement of claim and the evidence in support of the application for an extension of time. Gleeson CJ in Drayton Coal Pty Ltd v Drain U/R NSWCA 40418/95 9.8.95, BC 9505244, @ [4]. 36 In this case the pleadings and particulars of negligence against the Ambulance Services contained in the latest version of the amended statement of claim upon which the applicant wished to rely were: 31. At all material times the third defendant owed the deceased a duty of care to provide the deceased with a safe place of work and provide systems to ensure the deceased was not exposed to an unnecessary risk of injury. 32. In the course of the deceased's employment with the third defendant including but not confined to the matters set out in paragraphs 25-29 above, from time to time he came into contact with human blood. 33. Contact with human blood in the course of the work of an ambulance officer carried with it a risk of contracting certain diseases including Hepatitis B. 34. The deceased was exposed to the risk of contracting Hepatitis B as a result of contact with human blood in the course of his work as an ambulance officer. 35. In addition or in the alternative to the matters alleged in paragraphs 16-23 above, as a result of contact with human blood in the course of his work as an ambulance officer the deceased became infected with Hepatitis B. 36. The third defendant breached its duty of care to the deceased either personally or through its servants or agents. Particulars of negligence of the State and/or its servants or agents (i) Failed to devise, institute or maintain a safe system of work; (ii) Failed to advise the deceased of the risk of contracting Hepatitis B by coming into contact with patients' blood; (iii) Failed to provide any or any proper clothing or equipment to protect the deceased from the risk of coming into contact with patients' blood; (iv) Failed to properly screen the deceased for the presence of the Hepatitis B antibody. (v) Failed to vaccinate the deceased or take all reasonable steps to ensure that he was vaccinated against Hepatitis B before requiring or permitting him to work in a situation in which he was exposed to the risk of contracting the virus. (vi) Required or permitted the deceased to perform his work when it was unsafe to do so. 37. In addition or in the alternative to the matter alleged in paragraph 29 above, the negligence of the third defendant was a cause of, or materially contributed to, the death of the deceased. 37 Paragraph 29 of the statement of claim related to the claim of negligence against the drivers of the motor vehicles. 38 It was claimed by the applicant that, until she received the report of Professor Batey dated 13 October 2005, she, and necessarily Mr Aitcheson, were unaware that: 1 It was known for years (at least since the 1940s) that contact with infected blood could result in viral infection including hepatitis. 2 Since the 1960s Hepatitis B could be tested for. 3 There was evidence that the virus could be transmitted from only minute samples of blood and other bodily fluids. 4 By taking standard precautions such as wearing of gloves and protective eye wear and avoiding direct exposure to bodily fluids infection can be minimised. 5 All who are exposed to the risk should be vaccinated against Hepatitis B. 39 The material to which I have already referred indicated that Mr Aitcheson was aware by 1989 or 1990 of the facts that were the basis for the allegations contained in paragraphs (i) – (vi) of the particulars of negligence claimed against the State of NSW. 40 In my view, Professor Batey's report provided opinion evidence to support the claim that there was actionable negligence by the Ambulance Service. 41 The result is that I was not satisfied that Mr Aitcheson was unaware of the criteria listed in s 60(1)(a) of the Act by the latest of the dates, namely May 1996, at which the limitation period expired in respect of the claim pleaded against the State of New South Wales in the proposed amended statement of claim. 42 In the absence of application by Mr Aitcheson for an extension of time by May 1999, his cause of action against the State may not be extended. 43 It follows that the proceedings commenced under the Compensation to Relatives Act and in respect of the claim on behalf of the Estate may not be continued against the State. The claim against the Nominal Defendant 44 The Nominal Defendant argued that Mr Aitcheson held the belief at all times, or at least from 1989 when Ms Reynolds responded to Mr Jay, that there was a connection between his injury and the motor vehicle accident. On this basis I was asked to infer that this belief was conveyed to the applicant. 45 A connection between an incident and an injury was not the issue for consideration. The question was whether Mr Aitcheson was aware of the connection between his injury and the acts or omissions of the drivers of vehicle or vehicles involved in the accident. 46 There was no evidence to indicate that Mr Aitcheson considered the issue of whether his injury was connected to the acts or omissions of those involved in the motor vehicle accident until Mr Pfennigwerth advised him in 2002 of the potential for a claim. 47 Mr Pfennigwerth stated that he advised Mr Aitcheson on 15 November 2002 that he might have an action in negligence against the negligent driver of a motor vehicle. The advice was confirmed in writing on 28 November 2002 in the following terms: If your exposure to Hepatitis B occurred while you were attending the scene of a motor vehicle collision which collision had occurred as a result of the negligence of the driver of the vehicle, as a result of which you were injured, that is to say you cut your arm on glass and as a result became exposed to contaminated blood from the passenger, then it would be possible to claim damages as a result of the negligence of the driver of the motor vehicle. We note that no other solicitor has suggested this to you. 48 The inquiries necessary to convert the possible claim into one having sufficient basis for litigation were not made until some time after Mr Aitcheson's death. 49 I find therefore that Mr Aitcheson was at no time aware of the connection between any act or omission leading to the motor vehicle accident and his injury. 50 In the absence of legal advice to this effect, I find also that there was no evidence to suggest that Mr Aitcheson ought reasonably to have become aware of this connection. 51 Subject to the question of whether it was just and reasonable to do so, it remained open to the court to extend the time for commencement of the claim against the Nominal Defendant in relation to the driver of the vehicle in which Ms Reynolds was a passenger, in respect of Mr Aitcheson's cause of action arising out of the motor vehicle accident and consequently in respect of the claim brought on behalf of the Estate. 52 If an extension of time to the date of his death was granted in respect of Mr Aitcheson's cause of action against the Nominal Defendant, the claim under the Compensation to Relatives Act in respect of the driver of the vehicle in which Ms Reynolds was a passenger was commenced within three years from that date and no extension was required for that part of the claim. 53 An extension of time was also sought to proceed against the Nominal Defendant in order to commence proceedings against the driver of a second vehicle allegedly involved in the accident. 54 The applicant and Mr Pfennigwerth claimed that, until 24 April 2008, they were unaware that attendants at Gosford District Hospital recorded on 11 May 1983 that a second vehicle was involved in the motor vehicle accident. The evidence of Mr Pfennigwerth to this effect was contradicted by the material in paragraph 58 of his affidavit of 22 October 2007 where he stated that he inspected documents produced by Gosford District Hospital in December 2006. There was no evidence that Mr Aitcheson was ever aware of the involvement of any second motor vehicle. 55 I find therefore that Mr Aitcheson was unaware of the connection between any act or omission of a driver of a second vehicle leading to the motor vehicle accident and his injury. 56 I find that the applicant was unaware prior to 24 April 2008 of the connection between any act or omission of a driver of a second vehicle leading to the motor vehicle accident and the injury to Mr Aitcheson. 57 I find also that there was no evidence to suggest that Mr Aitcheson or the applicant ought reasonably to have become aware of this connection at any earlier date. 58 Subject to the question of whether it was just and reasonable to do so, it remained open to the court to extend the time for commencement of the claim against the Nominal Defendant in relation to the driver of a second vehicle in respect of Mr Aitcheson's cause of action arising out of the motor vehicle accident and consequently in respect of the claim brought on behalf of the Estate. Justice and Reason 59 The claim as pleaded related to a motor vehicle accident that occurred and to conditions under which Mr Aitcheson worked 25 years ago. On that basis alone, there was a strong inference of presumptive prejudice. 60 There was also much material that pointed to actual prejudice. 61 The plaintiff relied upon the absence of evidence on the part of either defendant of actual prejudice. I acknowledge that the authorities require defendants who claim actual prejudice to provide evidence in support of that claim. I do not accept that this principle denies a defendant access to materials put before the court by the plaintiff in order to establish actual prejudice. 62 An important issue was the source of infection. Mr Aitcheson claimed throughout that his infection was the result of his employment and that most likely it occurred when he treated Ms Reynolds after the accident in 1983. 63 The opinions of the medical experts, including Dr Batey, that supported the claim that Mr Aitchson's work was the source of his infection were based on the assumption that there was no other likely source of infection. Dr Batey specifically asked that Mr Aitcheson's family be tested to determine if they were possible sources of his infection and he specifically noted that there was no evidence that any other member of Mr Aitcheson's family suffered from the infection. This apparently was not correct. Mr Aitcheson in the statement provided to Mr Pfennigwerth on 5 December 2002 was recorded as saying: My brother worked at Westmead Hospital for about 15 years. He told me he had a needle stick injury and has Hepatitis B. 64 There was no evidence that Dr Batey was told of this and no evidence of the extent to which it might affect his opinion. 65 The only evidence indicating that Ms Reynolds was the source of Mr Aitcheson's infection was her statement that she was diagnosed positive to the Hepatitis B virus some eight months after the accident in which she was treated by Mr Aitcheson. There was evidence suggesting that Ms Reynolds was at the time drug dependent. This evidence raised the question of whether her infection could have come from intravenous drug use between May 1983 and March 1984. 66 As early as 1989 case sheets for patients treated by Mr Aitcheson between 1979 and 1981 were not available. Mr Aitcheson personally checked through the case sheets for the period 1982/83 to 1985 and made his own selection of the cases that were the possible source of infection. Mr Jay wrote to the patients involved in the cases selected. None of the case sheets selected by Mr Aitcheson was available. The case sheets discarded by Mr Aitcheson were not available. 67 The Ambulance Service was subpoenaed by the applicant to produce documents relating to the introduction of a program for vaccination of ambulance officers against Hepatitis B, precautions instituted to provide protection against infectious diseases, minutes of meetings of the occupational health and safety committee from January 1980 to January 1991, and risk assessments relating to the risk of contracting disease from exposure to blood or physical contact with accident victims. The Ambulance Service was able to produce only a very limited number of documents. The documents produced were of no assistance in dealing with the issues raised by the claim. 68 Mr Aitcheson was recorded on 5 December 2002 as stating: The reason for Bruce Kay (sic) making his enquiries was that I had thought of bringing an action against the Ambulance Service, particularly in view of the fact that I was losing money and had lost my right to work as an ambulance (sic) which is a job I enjoy doing. The Specialists who were treating me wrote to the Ambulance Service indicating that I could still carry out my duties. After about three months I stopped losing wages and I have kept doing my normal work since and I have put any idea of ???? out of my head. 69 There was no evidence from Mr Jay to indicate what action was considered by Mr Aitcheson at this time or the advice given in respect of that action. 70 The McClellands' file contained a file note dated 16 October 2002 of a conversation between an unidentified person and the applicant. The file relevant extract was: Time period – three years – time limit explained re negligence - + trying to show. 71 There was no evidence from any solicitor with McClellands concerning the advice given to Mr Aitcheson concerning a claim in negligence or the time limits involved. 72 These instances are but some of the factors that persuaded me that the defendants in this case would not be in a position to secure a fair trial of the issues raised concerning the question of whether the motor vehicle accident on 11 May 1983 was the cause of his infection with the Hepatitis B virus and if so, whether it was the result of neglect on the part of the State of NSW or the driver of any vehicles involved. The gaps in the evidence not only indicated that a fair trial could not be obtained, they suggested that, in the absence of evidence of the extent of any legal advice given concerning a potential common law claim, it would not be reasonable to grant the extension of time sought. Was it appropriate to join the Nominal Defendant? 73 The position of the Nominal Defendant was further affected by the following problems. 74 The claim against the driver of the vehicle in which Ms Reynolds was a passenger asserted that the vehicle was both uninsured and unidentified. The claim against the driver of the alleged second vehicle asserted that the vehicle was unidentified. 75 The applicant relied on the provisions of the Motor Vehicles (Third Party Insurance) Act 1942 to claim that the vehicle in which Ms Reynolds was a passenger, having been registered in Queensland, was not insured in NSW and therefore was uninsured. The Act contained the following definition: Uninsured motor vehicle means: (a) a motor vehicle (not being a motor vehicle in respect of which persons are exempted by or under this Act from the provisions of section 7 (1)) which is not an insured motor vehicle, or (b) a motor vehicle which, under section 10 (6), is deemed to be an uninsured motor vehicle. 76 S 7(1) of the Act made it an offence to drive an uninsured vehicle on a public street. Regulation 17 of the Motor Vehicles (Third Party Insurance) Regulation exempted drivers from the provisions of s 7(1) if the vehicle was owned by a person ordinarily resident outside New South Wales, temporarily in New South Wales, and, relevantly to this case, when there was in force a contract of insurance complying with be Motor Vehicles Insurance Act 1936, Qld, or any Act amending or replacing that Act. 77 These provisions were relied upon by the applicant as meaning that, since the vehicle was not required to be insured that for the purposes of the NSW legislation, it was not insured. 78 This argument, however, overlooked the provisions of the section itself which, disregarding the words in brackets, read that an uninsured motor vehicle meant a motor vehicle that was not insured. 79 There was no evidence that the vehicle was not insured. According to Ms Reynolds, it carried Queensland registration plates. Ms Reynolds also provided information to the effect that the car was a Toyota Celica, purple in colour, and that it had been given to Dawn Vigor by her mother. 80 Ms Vigor was located by reference to the documents produced by Queensland Transport. Those documents indicated that Ms Vigor lived in Queensland in 1983 and that she owned a Datsun motor vehicle in 1983. When telephoned by Mr Pfennigwerth in 2007, Ms Vigor denied that she owned the vehicle involved in the accident of 11 May 1983. There was no evidence that she was asked to identify the car that she drove to New South Wales, the car that was involved in the accident or whether that car was insured. 81 The same Queensland Transport record showed Elizabeth A Vigor as the registered owner of a Toyota in 1983. The only evidence of enquiry concerning this vehicle was that Mr Pfennigwerth spoke with a male, said to be Mr Vigor, who denied having owned a purple Toyota Celica. There was evidence to indicate that Dawn Vigor's mother was named Elizabeth. 82 In the absence of what I regarded as adequate inquiry, there was no reason to conclude that a motor vehicle bearing Queensland registration plates was not insured in accordance with Queensland legislation. 83 On the question of identification, I concluded that the probabilities were that one of the vehicles said to be involved in the accident was probably registered to either Dawn Vigor or to Elizabeth Vigor and that if proper enquiries were made, the vehicle was probably capable of identification. 84 As to the circumstances in which the accident occurred, Police records relating to the accident have been destroyed. The recently acquired information suggesting that a second vehicle might be involved could not be checked against this information. 85 Ms Reynolds was the only witness interviewed by Mr Pfenningwerth about the circumstances in which the accident occurred. The only information obtained from Ms Reynolds concerning the accident was set out in paragraph 79 of his affidavit of 22 October 2007 to the following effect: On 11 May 1983 I was a front seat passenger involved in a motor accident on the Scenic Highway at Terrigal. I was in a car owned by Dawn Vigor and driven by Damien Gardner. The car had Queensland registration plates. Damien lost control of the car whilst driving through a number of "S" bends and collided with a tree head on. 86 Mr Pfennigwerth provided no evidence to indicate that he asked Ms Vigor whether she was in the vehicle at the time of the accident or that he inquired of her who owned the vehicle or how the accident occurred. 87 Ms Reynolds named Damien Gardner as the driver of the vehicle in which she was a passenger at the time of the accident. Mr Gardner's address appears in the materials provided from Mr Jay's file. There was no evidence that attempts were made to contact him concerning the circumstances of the accident. 88 The statement taken from Ms Reynolds indicated that she suffered significant facial injuries in the accident. The question whether she brought a third party claim for damages was not answered by the evidence and, if she did, against whom that action was taken and its outcome. No inquiries in this respect appeared to have been made. 89 Identical problems faced the applicant in relation to the identification of a second vehicle. The only suggestion that another vehicle was involved was found in a record of Gosford District Hospital. The author of that document was not identified. The source of the information recorded in the document was not identified. The information conflicted with the record made by Mr Aitcheson in the Ambulance Report that the accident involved a single vehicle only. There was no evidence to suggest that Ms Reynolds or Ms Vigor were asked about the involvement of another vehicle. 90 Further, the legislative provisions under which the office of the Nominal Defendant and its successors was established were designed to assist plaintiffs who might be left without a remedy because a vehicle was not insured or was not identifiable because it absconded or because of other circumstances relating to the accident. In this case, one of the vehicles involved was known to the occupants of the vehicle, the whereabouts of at least two of whom were known to the applicant. There was no evidence of any attempt to locate the third. 91 In truth, the reason this vehicle cannot be identified is that the accident occurred 25 years ago, police documents recording details of the vehicle or vehicles involved have been destroyed and inadequate inquiries have been made. 92 In conclusion, I was not satisfied that the Nominal Defendant was the appropriate defendant in relation to the claim against the driver of the vehicle in which Ms Reynolds was a passenger. 93 I was not satisfied that, having regard to the period that has elapsed since the date of the accident, the loss of records of the circumstances of the accident, the very limited evidence concerning the involvement of a second vehicle and the very limited inquiries made concerning the circumstances of the accident, that it would be just or reasonable to grant the relief sought in respect of any part of the claim against the Nominal Defendant. ORDERS 1 Each of the motions is dismissed. 2 The proceedings are dismissed. 3 The applicant is to pay the defendants' costs of the motions and of the proceedings. 4 The exhibits will be retained for 28 days. 5 I publish my reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.