Nominal Defendant v Boulter[2008] QDC 289

DISTRICT COURT OF QUEENSLAND

1. [1]
   When the Nominal Defendant satisfies a claim brought against the driver of an uninsured motor vehicle by an injured person the Nominal Defendant, generally, may recover from the driver of the uninsured vehicle any costs reasonably incurred by the Nominal Defendant on the claim. The Nominal Defendant seeks summary judgment against the rider of an uninsured motorcycle. The rider raises two defences arising out of s 60 of the Motor Accident Insurance Act 1994 (“the Act”).  Firstly, the defendant relies on s 60(1) of the Act and argues that the Nominal Defendant’s costs were not reasonably incurred because it wrongly regarded the defendant as 50% responsible for a motor vehicle collision instead of 10% and overpaid the claimant as a result.  Secondly, the defendant relies on s 60(2) of the Act and argues that he believed on reasonable grounds that he had the owner’s permission to ride the motorcycle and that the motorcycle was insured.

2. [2]
   The rule governing applications for summary judgment is r 292 of the Uniform Civil Procedure Rules 1999 which provides

“(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

3. (2)
   If the court is satisfied that –

1. (a)
   the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

2. (b)
   there is no need for a trial of the claim or a part of the claim;

the court may give judgment for the plaintiff against the defendant for all or a part of the plaintiff’s claim and may make any other order the court considers appropriate.”

3. [3]
   So far as seems relevant, the Act provided at material times:

“3 Objects

The objects of this Act are –

…

3. (c)
   to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents;

33 Nominal Defendant as the insurer

3. (1)
   The Nominal Defendant’s liability for personal injury caused by, through, or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle …

41 Insurer must attempt to resolve claim

3. (1)
   Within 6 months after an insurer receives notice of a motor vehicle accident claim under this division, the insurer must –

1. (a)
   take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises; and

2. (b)
   give the claimant written notice stating –

1. (i)
   whether liability is admitted or denied; and

2. (ii)
   if contributory negligence is claimed - the degree of the contributory negligence expressed as a percentage …

44 Power of insurer to act for insured

3. (1)
   If a motor vehicle accident claim is made against an insured person, the insurer –

1. (a)
   must undertake the conduct and control of negotiations and legal proceedings related to the claim; and

2. (b)
   may compromise or settle the claim or legal proceedings related to the claim and act for the insured person in any other way in relation to the claim.

3. (2)
   As soon as practicable after an insurer receives notice of a claim under the division, the insurer must –

1. (a)
   make a fair and reasonable estimate of the damages to which the claimant would be entitled in an action against the insurer; and

2. (b)
   make a written offer (or counteroffer) of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.

…

60 Nominal Defendant’s rights of recourse for uninsured vehicles

3. (1)
   If personal injury arises out of a motor vehicle accident involving an uninsured vehicle, the Nominal Defendant may recover, as a debt, from the owner or driver of the vehicle (or both) any costs reasonably incurred by the Nominal Defendant on a claim for the personal injury.

3. (2)
   It is a defence to the action by the Nominal Defendant under this section –

…

2. (b)
   as far as recovery is sought against the driver – for the driver to prove that the driver believed on reasonable grounds that the driver had the owner’s consent to drive the motor vehicle and that the motor vehicle was insured.”

4. [4]
   For the purposes of this application I find:

• On 29 September 2000 the defendant and his friend were riding motorcycles together. The defendant was riding a Yamaha TT600, while his friend (“Fitzgerald”) was riding a Honda XR400.
• The following matters should have been apparent to the Nominal Defendant from its investigations and before it compromised with Fitzgerald: Fitzgerald and the defendant rode the motorcycles in the same direction across a bridge. The defendant was riding to the right of and ahead of Fitzgerald on the bridge.  At least the rear part of the motorcycle ridden by the defendant moved off course to the left. The following motorcycle collided with the rear part of the leading motorcycle ridden by the defendant and Fitzgerald fell off the bridge and suffered personal injuries.  The defendant was 16 years of age and this was known to Fitzgerald when the accident occurred.
• The personal injuries sustained by Fitzgerald were injuries to which the Act applies.
• By operation of s 31 of the Act, the Nominal Defendant was taken to be the insurer for the purposes of the Act of the motorcycle ridden by the defendant.
• By operation of s 44 of the Act, the Nominal Defendant was obliged to undertake the conduct and control of negotiations and legal proceedings related to a notice of claim delivered to the Nominal Defendant by solicitors for the injured friend on or about 7 or 13 November 2000.
• On or about 29 January 2001 pursuant to the entitlement under s 44 of the Act, the Nominal Defendant compromised the claim for itself.
• In compromising the claim the Nominal Defendant incurred expenses in the amount of $88,525.57 comprising settlement of the claim for damages in an amount of $65,000 paid to or for Fitzgerald plus $12,500 in relation to Fitzgerald’s costs and $11,025.57 being the Nominal Defendant’s costs of defending Fitzgerald’s claim.

These last 5 matters were common ground between the parties.

The subsection 60(1) defence

5. [5]
   The defendant submitted that the Nominal Defendant had settled Fitzgerald’s claim too expensively as a result of conceding that the defendant was 50% responsible to Fitzgerald for Fitzgerald’s injuries.

6. [6]
   The defendant did not submit that the assessment of damages for Fitzgerald was unreasonable nor that the costs of Fitzgerald or of the Nominal Defendant were unreasonable. The defendant submitted that the costs incurred by the Nominal Defendant of $88,525.57 were not “reasonably incurred” within the meaning of those words in sub-section 60(1) of the Act. The defendant relied only upon the Nominal Defendant’s concession of 50% responsibility of the defendant for the collision instead of 10% responsibility as the basis for complaint. The defendant submitted that attributing any greater share of responsibility to the defendant than 10% was unreasonable. The defendant submitted there was a special relation between a following vehicle and a leading vehicle which requires more responsibility to be apportioned to the following rider, Fitzgerald.

7. [7]
   In Rains v Frost Enterprises Pty Ltd (1975) Qd R 287 the following appears in the judgment of Dunn J^[1]:

“I have queried whether His Honour correctly appreciated the nature of the “special relation” between “leading car” and “following car” on a quite long straight stretch of road, in conditions of good visibility.  The essence of that relation is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions).

It is because of this aspect of the relationship that one finds such judicial observations as the following:

‘The duty of an overtaking car is to watch carefully the leading car.  If the onus lies on one more than the other, the overtaking car has to show that the leading car is responsible for the collision.’

Twiehaus v Morrison (1947) N.Z.L.R. 197 at p. 202.

‘The following vehicle has the leading vehicle under observation, and it must be expected to watch the leading vehicle for any indication of its intention, but – without negligence on his part – the driver of the leading vehicle may not know of the presence of the following vehicle, and the driver of the latter cannot assume as the other may, that he is under observation.’

Kleeman v Walker (1934) S.A.S.R. 199.

‘- if it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course – when one coach follows close upon the track of another, and there are two ways, one of which is perilous and the other safe, the driver is bound to adopt that which is safe.”

Mayhew v Boyce 1 Stark. 423 (171 E.R. 517).

‘- the duty which the plaintiff owed to the defendant was to keep to his right side of the road and not to change his course without due and adequate warning under the circumstances, to the defendant.  If that were not so, of course, no one could pass safely.  On the other hand the duty which the defendant owed to the plaintiff lies in this: that he was overtaking the plaintiff and his duty was not to run down with his car the plaintiff’s car.’

(direction to the jury in Warren v Grinnell Co., cited with approval by Macdonald J.A., on appeal – (1936) 4 D.L.R. 544, at p 544).

Whilst the relationship will vary with the circumstances of each case, such as the nature of the road, the usual speed of traffic, and traffic laws or conventions in force, it must always be appreciated and given due consideration.”

8. [8]
   The defendant submitted that the reasonableness of the Nominal Defendant’s costs involved in compromising Fitzgerald’s claim against the Nominal Defendant must be assessed at trial because a trial will allow a court to determine whether Fitzgerald’s responsibility was more than 50%. The defendant did not identify which factual issue would be better assessed at trial.

9. [9]
   In the circumstances of this proceeding I do not accept the submission that the reasonableness of the Nominal Defendant’s payment is an issue that must be determined at a trial. The question of whether the Nominal Defendant’s costs are “reasonably incurred” by the Nominal Defendant is not always to be judged by exploring at trial the full circumstances of the accident so as to have a fuller basis for determining the proper apportionment of responsibility between a defendant and a claimant such as Fitzgerald. Having regard to s 41 of the Act the Nominal Defendant was required within six months after receipt of the claim by Fitzgerald to take reasonable steps to inform itself of the circumstances of the accident and to give Fitzgerald a notice stating whether liability was admitted or denied and if contributory negligence was claimed the degree of contributory negligence claimed against Fitzgerald expressed as a percentage. The Nominal Defendant did not, within those six months, have the opportunity to fully explore at trial the apportionment of responsibility. The defendant did not plead nor submit that the Nominal Defendant was unreasonable for failing to consider specific information nor that it failed to take reasonable steps to inform itself of the circumstances of the accident. Had the defendant raised this as an issue there may have been benefit in a trial to determine what further information should have been gathered or considered by the Nominal Defendant and to determine the proper apportionment of liability with the benefit of the further information.

10. [10]
    By its amended defence filed by leave upon the hearing of the application the defendant denied that the expenses incurred by the Nominal Defendant in relation to Fitzgerald’s claim were reasonably incurred on only the bases that:

1. (a)
   the defendant did not lose control of the Yamaha and did not veer into the path of the Honda as the truth is that the defendant attempted to slide the Yamaha and unbeknown to the defendant at the same time as Fitzgerald was executing a rear wheel stand of the Honda with the Honda’s front wheel coming down on the Yamaha’s rear wheel which caused Fitzgerald to fall from the Honda;

2. (b)
   Fitzgerald’s negligence was a substantial cause of the collision;

3. (c)
   Fitzgerald was at the material time following too closely behind the motorcycle ridden by the defendant;

4. (d)
   the Nominal Defendant conceded 50% liability to Fitzgerald in circumstances where Fitzgerald was the negligent rider of the following motorcycle;

5. (e)
   the plaintiff should not have conceded more than 10% liability to Fitzgerald.

11. [11]
    The reasonableness of the Nominal Defendant’s concession that the defendant was 50% responsible for the collision, having regard to the issues raised by the defendant, can be determined by examining the material which the Nominal Defendant considered. The most persuasive direct evidence relating to the motor vehicle accident appears in the motor accident personal injury notice of claim form signed by Fitzgerald,^[2] a traffic incident report of a police officer printed on 13 November 2000 and containing alleged versions from Fitzgerald and the defendant^[3] and a signed statement of the defendant dated 7 December 2000.^[4]  It is not clear on the evidence whether the Nominal Defendant also had available to it a transcript of a police interview with Fitzgerald taken on 7 November 2000.^[5]  For the purposes of this application I will assume that material to have been available to the Nominal Defendant as it tends to assist the defendant in establishing some arguable negligence on the part of Fitzgerald.^[6]

12. [12]
    That material, available to the Nominal Defendant, tended to show:

• That according to a sketch adopted by Fitzgerald, he and the defendant rode their respective motorcycles on to Emuford Bridge with the two motorcycles almost side by side but with the defendant’s motorcycle slightly ahead by about 5% of the motorcycle’s length;
• Fitzgerald was riding on the left hand wooden car track of the bridge and the defendant on the right hand wooden car track of the bridge;
• Fitzgerald claimed that the defendant lost control and suddenly veered left from Fitzgerald’s right hand side and knocked Fitzgerald off Fitzgerald’s motorcycle;
• Fitzgerald claimed that the defendant caused the collision by, among other things, failing to remain in control of his motorcycle.
• Fitzgerald told police officers that they had been riding side by side because the defendant’s head light was not strong enough and that the defendant lost control and that the vehicles were too close to avoid collision.
• The defendant appears to have told the police that Fitzgerald was slightly behind when the defendant lost control when the rear wheel of the defendant’s motorcycle dropped off the edge of the car track and the defendant’s motorcycle slid out and hit the wheel of Fitzgerald’s motorcycle.
• The defendant told investigators for the Nominal Defendant in a signed statement taken in company with his father that:

“… it was fine, clear and dry night although very dark.  Because it was so dark Dennis and I rode side by side so that our headlights would help each other see the road more clearly.  We have done this on numerous occasions when on other rides together … For most of the time that we rode side by side I was always on the right hand side of Dennis.  I remember that we came over a large rise in the gravel road and ahead about 100 m was a single lane wooden bridge … We approached the bridge doing a speed that I believe to be about 80 km per hour and picking up speed as we went down the hill towards the bridge.  The Emu Creek Bridge is only a one lane bridge constructed of timber, with two raised timber tracks along its length, which is usually for vehicle wheels on each side to travel on.  As we were travelling side by side I chose the right hand raised timber track and Dennis chose the left one.  This was because I was still riding on the right hand side of Dennis. … We were about half way across the bridge and I had accelerated a short distance ahead of Dennis, when my back tyre slipped off the raised timber track.  I do not know what caused the tyre to slip of (sic) the timber track other than possibly from the large bolts that hold the timber down onto the bridge.  As the motorcycle’s back tyre slid to my left I pushed my weight further forward and over the front of the motorcycle so that the back wheel would come back into line with the front wheel, which was still up on the timber track heading in a straight line.  I could see Dennis’s headlights in the corner of my left eye and as I moved my weight to straighten the motorcycle I heard the front tyre of Dennis’s motorcycle rub or hit the back tyre on my motorcycle causing me to lose balance … I do not believe that anyone is at fault for this accident.”

• Fitzgerald on 2 November 2000 in an interview with police had the following relevant exchanges which are capable of supporting an argument that Fitzgerald was riding too close behind the defendant:

“Sergeant Maloney: Now so you’re riding along side by side?

Mr Fitzgerald: More or less yeah.

Sergeant Maloney: What do you mean by more or less?

Mr Fitzgerald: Well you know you might go off in front or something you know.

Sergeant Maloney: Well just prior to the accident happening who was in front and who was behind?

Mr Fitzgerald: Well I think I was behind him actually because he slid out and I ran up his arse you know. …

Sergeant Maloney: Is there any reason why you were following so close to him?

Mr Fitzgerald: Just because of the lights so you know when he had not very good lights and I do and you know I just tried to help him out a bit but I had no idea he’d be stacking it on the bridge you know its one of them things just wrong place wrong time you know.

 …

Sergeant Maloney: So how far were you behind him when he lost it?

Mr Fitzgerald: Oh well its hard to say I was probably only a couple of metres you know when you’re supposed to have the two second gap I wouldn’t have been real far cause I’ve hit him you know and if I did have enough gap I probably wouldn’t of hit him.

Sergeant Maloney: Mate um how fast do you reckon you were going again?

Mr Fitzgerald: I’d say about 60 km an hour …”

13. [13]
    The special relation discussed in Rains v Frost Enterprises Pty Ltd and in each of the cases referred to in the judgment of Dunn J extracted above is distinguishable from the facts of the defendant’s case as it would have appeared to the Nominal Defendant in January 2000.  From within the material gathered by the Nominal Defendant on the version most favourable to the defendant, Fitzgerald was not overtaking the defendant.  Fitzgerald may have been as far back as two metres behind the defendant’s motorcycle.  Another available version was that Fitzgerald’s headlight may have been adjacent to the defendant’s head placing the front of Fitzgerald’s motorcycle about a metre behind the front of the defendant’s motorcycle.  On any version, Fitzgerald was not seeking to pass the defendant but was seeking to ride beside the defendant to maintain the practice which he and the defendant had established that dark night of riding side by side so that the combined power of their headlights could light the road ahead of them.  It seemed probable on the material that this was for the advantage of the defendant whose headlight was dimmer than Fitzgerald’s.  Unlike the following driver in Rains v Frost Enterprises Pty Ltd Fitzgerald was neither overtaking nor seeking to change his course to bring himself into a more hazardous position.  Instead, the defendant appears by his own version to have accelerated which brought the defendant’s motorcycle ahead of its usual position which was beside Fitzgerald’s motorcycle.

14. [14]
    While Fitzgerald may have taken inadequate precautions for his own safety, it is not accurate to say that it was by “following too close”. If he had moved into a position where he could properly be described as “following” that was, on the evidence available to the Nominal Defendant, likely to have been caused by the defendant’s accelerating and is unlikely to have been caused by a conscious decision on the part of Fitzgerald to follow the defendant. A consideration of the principles which apply in the case of drivers who follow other drivers is unhelpful in determining the apportionment of liability in this case.

15. [15]
    On this night, both riders appear to be equally responsible for their practice of riding side by side. If it was unreasonable for both to be upon the two north bound planks of the bridge either side by side or with their vehicles so close to each other that the following vehicle was at risk of colliding with the leading vehicle if the leading vehicle moved off course then each rider would seem to be equally responsible for allowing the pair to cross the bridge so close together. If it was dangerous to be so close together on the bridge it seems reasonable to regard the defendant’s accelerating and riding in such a way as to permit his rear wheel to slide off the plank as important features tending to suggest to any reasonable investigator in the position of the Nominal Defendant that the defendant was at least as responsible for the accident as Fitzgerald and for the dangerous situation which led to collision causing Fitzgerald’s injuries.

16. [16]
    I am satisfied that the defendant has no real prospect of establishing that the Nominal Defendant was unreasonable to concede that the defendant was 50% responsible for the collision.

The subsection 60(2)(b) defence

17. [17]
    The defendant has the onus of proof of two matters to establish the defence to the Nominal Defendant’s right of recourse on the basis of subsection 60(2)(b) of the Act. Firstly, the defendant must prove that he believed on reasonable grounds that he had the owner’s consent to ride the motorcycle. Secondly, he must prove that he believed on reasonable grounds that the motorcycle he was riding was insured.

18. [18]
    As to whether the defendant believed on reasonable grounds that he had the consent of the owner to ride the motorcycle, the defendant by way of particulars pleaded that the owner was Andrew Owens and that the defendant had the owner’s consent to ride the Yamaha. The defendant did not swear to these allegations nor did he rely upon evidence in support of the allegation. The Nominal Defendant correctly submitted that the defendant “does not swear to any belief (let alone one on reasonable grounds) that he had the consent of the owner to use the motorcycle.” The Nominal Defendant submitted that alone was a sufficient basis for the granting of judgment. The defendant made no submission in reply to that submission. My researches into the material relied upon by the Nominal Defendant in the application before me reveal that the defendant has provided a signed statement dated 7 December 2000 to the investigator engaged by the Nominal Defendant in which he stated that he “had the use of a friend’s motorcycle.”^[7]

19. [19]
    The defendant should have done more to satisfy the court that he has a real prospect of establishing this element of the defence upon which the defendant would, at trial, bear the onus of proof.

20. [20]
    The defendant pleaded as particulars of the sub-section 60(2)(b) defence:

1. (a)
   On 29 September 2000 the defendant was not the owner of the Yamaha at the time of the accident.

2. (b)
   The owner was Andrew Owens.

3. (c)
   The defendant had the owner’s consent to ride the Yamaha.

4. (d)
   The defendant was aged fifteen years.

5. (e)
   The defendant had no experience or knowledge of the facts or law relating to compulsory third party insurance.

6. (f)
   The defendant’s only knowledge of motor vehicle registration was that registration plates attached to a vehicle was prima facie evidence of its being registered, which permitted it to be driven on a road.

7. (g)
   The defendant knew that the Yamaha did not have registration plates attached.

8. (h)
   The defendant did not make any connection between registration and compulsory third party insurance.

1. (i)
   The defendant had no legal knowledge or experience as to the concept of negligence, as it related to damages claims for injuries resulting from motor vehicle accidents.

10. (j)
    The defendant knew that persons injured in motor vehicle accidents received insurance monies.

11. (k)
    The defendant believed that all motor vehicles were insured, in relation to claims by injured parties for damages, caused by motor vehicle accidents.

21. [21]
    So far as is relevant the defendant deposed for the purposes of resisting summary judgment, eight years after the events:

“20. I was aware that the Yamaha…that I was riding was unregistered.  I presumed that registration meant simply that the vehicle was authorised to be driven on the road and was not then aware that the vehicle, without number plates, would not have compulsory third party insurance.

21. I had not had any real reason to turn my mind to the point of insurance but had presumed that there was some sort of insurance which covered all persons who may be injured through any motor vehicle accident.  I realise now of course, that this was a completely erroneous view although I was not aware of that position on 29 September 2000 when I was sixteen years of age…

22. I say also that I was not the owner of the motorcycle that I was riding on 29 September 2000, but that I was the rider.  I have pleaded in my defence that at the relevant time when I had just turned sixteen years of age I believed that all motor vehicles were insured, in relation to claims by injured parties for damages caused by motor vehicle accidents.  Whilst I acknowledge now that I am aware that is not the case, I say that at the relevant time, taking into consideration my age, that the belief I then had, even though it were an incorrect belief, was a reasonable belief that the Yamaha motorcycle was insured. 

23. I readily admit that I was well aware that the motorcycle was not registered, but say again that I did not make any connection between the need to have registration plates on the vehicle and the issue of compulsory third party insurance.”

Relevance of age to belief on reasonable grounds

22. [22]
    The defendant was 16 years and 2 months of age when the motor vehicle accident occurred. It was submitted for him that his age was a reasonable ground for him to believe that the motorcycle he rode was insured. There was no elaboration of the submission. The submission impliedly distinguished the concepts of the reasonable sixteen year-old and the reasonable person while ignoring the distinction between a reasonable sixteen year-old and reasonable grounds. It was further submitted for the defendant that in considering the reasonableness of his belief, the standard to be applied is that of a reasonable person of his age which was sixteen years and two months at the relevant time.

23. [23]
    In subsection 60(2)(b) “reasonable” is an adjective which describes the grounds on which a driver held a belief. Its use in that subsection can be distinguished from its use when describing a person. A person who is reasonable in the sense of possessing sound judgment may hold a belief without any grounds or upon grounds which are reasonable or upon grounds which are not reasonable. The subsection concerns the reasonableness of the grounds for belief rather than the reasonableness of the person who holds a belief.

24. [24]
    The defendant has a real prospect of establishing at a trial that he believed that the motorcycle he was riding had “some sort of insurance which covered all persons who may be injured through any motor vehicle accident” and that while he was aware that the motorcycle was not registered he “did not make any connection between the need to have registration plates on the vehicle and the issue of compulsory third party insurance.” Accordingly, I find that the defendant has a real prospect of successfully establishing at trial that he believed that the motor vehicle was insured. There remains the issue of whether the defendant’s belief was “on reasonable grounds”.

25. [25]
    One may have reasonable grounds for belief though the belief is incorrect^[8] and where the objective circumstances do not establish facts on the balance of probabilities.^[9]  I respectfully accept as correct that:

“Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”^[10]

26. [26]
    In Kenny v Nominal Defendant at first instance^[11] a 14 year old motorcycle rider believed the motorcycle was registered because it had a number plate.  The trial judge observed that to be reasonable grounds to believe that it was registered and therefore subject to statutory compulsory third party insurance.^[12]  On appeal Jerrard JA^[13] observed:

“The Nominal Defendant made the point that [the 14 year old rider] had sworn only to a belief that, because the motorcycle had a number plate on it, it was registered, and not to a positive belief – as required by the 1936 Act – that it was insured.  I respectfully agree with the learned judge that [the 14 year old rider’s] evidence described reasonable grounds on which to believe that the motorcycle was registered and therefore insured, and that he believed it was.”  [Words in square brackets inserted for clarity].

The President in the same appeal observed^[14]:

“It is not contentious in the appeals that [the 14 year old rider’s] evidence at trial supported the primary judge’s conclusion that the then 14 year old … believed on reasonable grounds that the motorcycle he was riding was registered (and therefore insured). …”  [Words in square brackets inserted for clarity].

27. [27]
    The facts in Kenny can be distinguished from the facts before me.  In Kenny, the motorcycle’s numberplates were the basis of the rider’s belief that the motorcycle was registered and therefore subject to statutory compulsory third party insurance.  It can be seen to be distinguishable on two bases.  The first is that in Kenny the rider relied upon some fact, namely the presence of numberplates, as a ground for his belief that the vehicle was registered and apparently relied upon registration for his belief that the vehicle was insured.  Thus, the first ground of distinction is that there was a matter of fact, numberplate and registration, which was the ground for his belief that the vehicle was insured.  The rider in Kenny had a factual ground for his belief.  The defendant had no factual ground for his belief but presumed insurance covered all persons who may be injured through a motor vehicle accident.  The second distinguishing feature is that the defendant’s motorcycle carried no numberplates.

28. [28]
    In the matter before me, the defendant does not point to any ground for his belief that the vehicle was insured. It was impliedly submitted for the defendant that his age in 2000 was, in itself, a reasonable ground for his belief that the vehicle was insured. Invoking his age of 16 years is not an independent ground for belief. It was held in Kenny^[15] on a different factual issue relating to sub-section 60(2)(b) of the Act namely whether a 14 year old believed on reasonable grounds that he had the owner’s consent to drive, that a 14 year old could quite reasonably upon the standard for a reasonable 14 year old interpret the father’s conduct as amounting to consent to drive.^[16]  That should not be seen as authority for a proposition that age alone is an independent ground for holding a false belief.  The 14 year old in Kenny had a ground for belief in the owner’s consent.  That ground was his father’s weak remonstrances which the child interpreted as begrudging permission to ride. The defendant before me points to nothing more than his age as his ground for holding a false belief that the vehicle he rode was insured.

29. [29]
    The defendant’s age is relevant to a consideration of what he believed in 2000. So far as I am aware, sixteen year-olds in Queensland in 2000 were unlikely to have received sufficient instruction at school or elsewhere to comprehend Queensland’s system of compulsory insurance for persons injured in motor vehicle accidents. If I assume for the purposes of this application that the defendant at sixteen knew the law of Queensland including the provisions of the Act, he would have known in 2000 that any driver of a motor vehicle in Queensland was either insured pursuant to a policy of insurance or, if not insured pursuant to a policy of insurance was indemnified by law against claims by persons injured in a motor vehicle accident, subject to the Nominal Defendant’s right of recourse against the driver. He would not, by knowledge of the law alone, have had reason to believe that every vehicle was insured pursuant to a policy of insurance. I do not find that a reasonable sixteen year-old in 2000 would have believed that all vehicles were the subject of contracts of insurance.

30. [30]
    The submission invoking the defendant’s age and impliedly invoking the concept of the reasonable sixteen year-old does not distinguish the concepts of reasonable sixteen year-old and reasonable grounds for belief. Subsection 60(2)(b) of the Act does not refer expressly to the concept of a reasonable person nor a reasonable sixteen year-old. It refers to reasonable grounds for belief. They are different concepts

31. [31]
    The defendant has no real prospect of establishing that his belief, that the motorcycle he was riding was insured, was a belief on reasonable grounds. If the defendant had not failed on this aspect, I would, before determining the application, have invited submissions as to whether it was appropriate to give to the defendant liberty to put evidence before me within seven days of the owner’s consent to the defendants riding the motorcycle.

32. [32]
    I am satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim and that there is no need for a trial of the claim or a part of it.

33. [33]
    I give judgment for the plaintiff against the defendant in the sum of $88,525.57. I will hear the parties as to interest on the claim and costs.