Opinion
Case Summary: Hyland v TAC [2024] VSC 641 - Plaintiff obligations and conflicting evidence on transport accident claims
7th Nov 2024
Introduction
The decision of the Supreme Court in Hyland v Transport Accident Commission [2024] VSC 641 contains helpful guidance and direction regarding a plaintiff’s obligation under s96 of the Transport Accident Act 1986 (Vic) as well as providing a fascinating example of the way a court deals with conflicting evidence.
Background to the case
In January 2017, the plaintiff was cycling on a rural road with her three children and then-husband. The plaintiff alleged that a passing vehicle caused her to fall off her bicycle, and she broke her leg, requiring nine surgeries and ongoing rehabilitation. The plaintiff also alleged that the vehicle failed to stop. The plaintiff’s daughter called an ambulance but stated that the plaintiff had not been hit by a car, although it appears that there was a mention of a vehicle elsewhere in the call. The plaintiff’s then-husband recalls that a second vehicle stopped to provide assistance. This contradicted the details contained in a police report he later made, which stated that the responsible vehicle had returned to provide assistance.
Court’s findings
In 2021, in accordance with s96 of the Transport Accident Act, the plaintiff’s solicitor put the TAC on notice that the plaintiff intended to make a claim for damages in respect of a transport accident caused by the driver of an unidentified vehicle. The notice drew some details from the police report and referred to the plaintiff’s TAC claim form for other details of the incident. The TAC submitted that if the first vehicle was the one that later stopped to provide assistance as reported, then it could have been identified, that the notice letter did not cover the required details and that the conflicting accounts of whether the vehicle had struck the plaintiff impacted the question of negligence.
The Court was satisfied that if it had not struck her, the vehicle had driven close enough to the plaintiff as to have negligently caused her to fall off her bicycle. The Court further accepted that the police report and subsequent notice letter had contained an error, and that the vehicle that provided assistance was different to the one that caused the accident. In considering whether the plaintiff had a duty to make further inquiries as to the identity of the vehicle responsible for the accident, the Court was satisfied that as there were no other adult witnesses, and the responsible vehicle did not stop or return, there had been no opportunity for the plaintiff to investigate its identity.
In obiter, the Court made comments that arguably a plaintiff’s obligations under s96 are perhaps not merely confined to requiring a description of the accident but also ‘require a description going to efforts to identify the vehicle or requires only a description of how the accident occurred’ (at [90]). These comments are something that should be front of mind for plaintiff lawyers when drafting s96 notices. Further, Her Honour Justice Forbes also made comments (at [93]) about the use of a claim form as being an s96 notice in of itself (as per the decision of Lakic v Transport Accident Commission [2014] VSC 291), noting that the claim form, and the information contained within it, may go to whether the defendant (TAC) has suffered any prejudice by any perceived lack of compliance with s96.
Conclusion
There was some conflicting and unclear evidence of the accident and the accident circumstances. This decision is an interesting example of how a court balances competing and contrasting accounts of evidence. It also contains a curious account (at [21]) from one of the witnesses about the taking of a statement from an investigator, that perhaps should be borne in mind by the TAC and plaintiff practitioner alike
The ALA thanks Jeremy King and Isabella Thomas for this contribution.
This is an edited version of an article first published by Robinson Gill Lawyers
Jeremy King is a Principal Lawyer at Robinson Gill Lawyers. He joined Robinson Gill in 2006 after graduating from Monash University with degrees in Law and Arts. He has a Masters of Law at Utrecht University in the Netherlands specialising in human rights and criminal justice. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.
Isabella Thomas completed her legal studies while clerking in personal injury practices and was admitted to the legal profession in October 2024. She now works in the injury law team at Robinson Gill Lawyers, specialising in worker's compensation, transport accident and CFA volunteer firefighters' compensation claims. Isabella believes in a compassionate approach to supporting people who are facing hardship as a result of an injury.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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