Wright v Australian Associated Motor Insurers Limited [2002] NSWSC 165

New South Wales Supreme Court

CITATION : Wright v Australian Associated Motor Insurers Limited [2002] NSWSC 165 FILE NUMBER(S) : SC 20228/98 HEARING DATE(S) : 11/03/02 JUDGMENT DATE : 20 March 2002

PARTIES : Mark Francis Wright - Plaintiff Australian Associated Motor Insurers Limited - Defendant JUDGMENT OF : Hidden J at 1

COUNSEL : David Higgs SC/A Kostopoulos - Plaintiff G Farmer - Defendant SOLICITORS : Dodaro Lawyers - Plaintiff McMahons - Defendant CATCHWORDS : Civil procedure: action for damages for personal injury - motor vehicle accident - statement of claim against the insurer under s 54, Motor Accidents Act - allegation of identified driver - amendment to add alternative allegation of unidentified driver. LEGISLATION CITED : Motor Accidents Act, 1988 CASES CITED : Fernance v Nominal Defendant (1989) 17 NSWLR 710 DECISION : See paragraphs 8 and 9.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Wednesday, 20 March, 2002

20228/98 – Mark Francis WRIGHT v AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744)

JUDGMENT 1 HIDDEN J: These are proceedings for damages for personal injury arising out of a motor vehicle accident at Bolton Point on 30 March, 1991. The plaintiff was an occupant of a motor vehicle which collided with an electricity pole, causing him very serious injuries. On 9 July 1998 Master Harrison granted the plaintiff leave to commence proceedings out of time, pursuant to s 52(4) of the Motor Accidents Act 1988. An appeal against that decision was dismissed by Studdert J: [1999] NSW SC 208. 2 An outline of some of the evidence gathered by the parties and of their competing cases is to be found in Master Harrison's judgment, and I need not repeat it. It is sufficient to say that, although the plaintiff owned the vehicle in which the accident occurred, a central issue in the case is whether he was driving it at the time. He has no recollection of the accident. However, there is evidence to suggest that he was a passenger when it occurred. If that be so, insofar as it is possible to ascertain who the driver was, there is also evidence to suggest that it might have been one of two brothers, Anthony and Brian Thompson. The draft statement of claim before Master Harrison made no reference to either of those gentlemen and alleged simply that the identity of the driver was unknown. However, the evidence relating to the two men was before the Master, who granted the plaintiff leave to commence proceedings in unrestricted terms. 3 The plaintiff's solicitor then filed a statement of claim, which alleged that the driver was Anthony Thompson and did not plead, in the alternative, that the driver was Brian Thompson or a person unknown. Why this was done is far from clear. In oral evidence before me, the plaintiff's solicitor said that Anthony Thompson was considered the most likely contender and part of his evidence suggests that, after seeking the plaintiff's instructions, a considered decision was made to plead the case in that limited way. However, I can conceive of no tactical reason for doing so, and he also gave evidence that the possibility that the driver was someone else had not been ruled out. While the matter remains unexplained, it appears to me that the statement of claim was drawn in error. 4 Before me is a motion by the plaintiff seeking leave to file an amended statement of claim, which maintains the allegation that the driver was Anthony Thompson but adds alternative allegations that it was Brian Thompson or a person unknown. However, at the hearing the amendment relating to Brian Thompson was not pressed and argument was confined to the allegation of an unidentified driver. That amendment is opposed. 5 Counsel for the defendant insurer submitted that, as a matter of discretion, I should refuse the amendment because the plaintiff had had his opportunity to file a statement of claim in accordance with the leave which had been granted and had made an informed decision to proceed as he did. However, as I have said, I do not believe that the form of the statement of claim was the result of an informed decision and I would not refuse the application for that reason. 6 Counsel for the defendant also argued that the plaintiff seeks effectively to add a new party, so that this amounts to a further application under s 52(4) of the Motor Accidents Act when the time limitation prescribed by that act has long since expired. He referred, by way of analogy, to Fernance v Nominal Defendant (1989) 17 NSWLR 710. Even if the present application were to be characterised in that way, it would clearly have merit. However, that is not how I view it and I am satisfied that it is an application for amendment under Pt 20 of the rules. The insurer is named as the defendant in the statement of claim because, at the time it was filed, Anthony Thompson could not be located: s 54 of the Motor Accidents Act. By the same provision, inability to identify the driver also enables the insurer to be named as defendant. No question of the addition of a party arises. 7 Apart from the prejudice inherent in delay, a matter which was thoroughly examined in the light of recent authority by both Master Harrison and Studdert J, it does not appear to me that the defendant would suffer significant prejudice if the amendment were allowed. True it is that several further years have elapsed since the plaintiff filed the statement of claim confining his case to the assertion that Anthony Thompson was the driver. Nevertheless, in the years prior to the filing of that statement of claim the plaintiff's case had not been confined in that way and the defendant had the opportunity to conduct its own investigation of the identity of the driver. The primary thrust of its case has been, and remains, that the driver was the plaintiff himself, and eye-witness and expert evidence on that issue has been gathered by both parties. On the other hand, I consider that the plaintiff could be gravely prejudiced if the amendments were not made. For him to be committed to a case that the driver was Anthony Thompson, and no-one else, could bring about a serious injustice. 8 I would allow the amendment. I am unpersuaded by an alternative submission of counsel for the defendant that the matter should be determined by the judge having the conduct of the trial. I have been handed a proposed amended statement of claim. I would allow the amendments foreshadowed in pars 7A and 7B of that document. I note that those contained in pars 7C and 10 are not pressed. 9 I shall consult the parties about the formal order to be made. On the question of costs, I am mindful of the fact that the plaintiff has succeeded in a contested application. On the other hand, this is the second time it has been necessary for him to seek this court's indulgence. Moreover, the affidavit of the plaintiff's solicitor in support of the motion offered no explanation for the fact that the statement of claim was filed in the form it was, and that matter was explored for the first time in cross-examination at the hearing. In my view, the appropriate order is that the costs of this motion be the defendant's costs in the cause. **********