Ford v Nominal Defendant

The plaintiff in this recent matter had sustained injuries as a result of a motor accident and subsequently he had not been able to identify the responsible motor vehicle or driver. The issue was whether he had established that “proper inquiry and search” had been made as required by s 31(2) Motor Accident Insurance Act 1994; and whether a different and higher standard was to be applied than under the predecessor to the legislation, the Motor Vehicles Insurance Act 1936. In the circumstances, it was held that the plaintiff had not engaged in any proper inquiry and search, and further that in the event s 31(2) imposes a higher burden than the previous test, it is so negligible that the maxim de minimis non curat lex would apply.

Martin SJA

31 August 2022

It was not in dispute that the incident described by the plaintiff had not only occurred, but had been the result of an unknown person’s negligence. [3]. The aspect in dispute was whether the plaintiff had complied with the requirements of s 31(2) Motor Accident Insurance Act 1994 which specifies that “it is to be presumed that a motor vehicle cannot be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.” If that had occurred, the plaintiff would be in a position to sue the Nominal Defendant.

The previous legislation, relative to the current test

Under the former legislation, the Motor Vehicles Insurance Act 1936, “due inquiry and search” was required. The issue arose whether s 31(2) Motor Accident Insurance Act 1994 imposes a higher burden than the previous test. That had previously been considered by Judge Farr SC in Murray v Nominal Defendant [2014] QDC 144. In that case, his Honour’s view was that:

1. s 31(2) does require that investigation of a higher standard be undertaken, albeit the distinction “appears slight”.
2. It would be likely that in many cases, there would be no discernible difference between the application of the test under the current Act and its predecessor.

Justice Martin agreed that in many instances there will be no material difference between the two phrases. In that regard he noted that in some dictionary definitions one of the meanings of “due” is “proper”. [11]. He further noted that nothing in the explanatory notes and second reading speeches lend support to the proposition that “proper” imposes a higher test than “due”. [12].

He surmised that the change from “due” to “proper” possibly reflected a change in drafting practice, so it would follow that s 14C Acts Interpretation Act 1954 would dictate a conclusion that “the ideas must not be taken to be different merely because different words are used.” He had not however been referred to anything by counsel which would confirm that the drafting practice had been altered. [13].

His Honour observed that the courts have held on prior occasions that “due inquiry and search” entails such inquiry and search as is reasonable in the circumstances in view of the situation of the claimant: see for example Cavanagh v Nominal Defendant (1958) 100 CLR 375.

After careful consideration he concluded:

“The words ‘proper’ and ‘due’ can, in different circumstances, encompass different levels of effort. But, in the context of this particular section, the change of words has not imposed a higher burden on a plaintiff. If I am wrong, and there is a difference, then it is so slight that the maxim de minimis non curat lex would apply. It follows, then, that decisions of appellate courts on ‘due inquiry and search’ have the same weight as if they had been considering ‘proper inquiry and search’”. [16].

Had the plaintiff satisfied the test?

Here, the circumstances which caused the plaintiff’s injury were of particular importance. Whilst riding his motorbike a small piece of timber had fallen off a truck travelling in front of him. Despite swerving to avoid it, the rear wheel of his motorbike ran over the timber causing him jarring. It would have been immediately apparent to him that he was injured, at least to a degree. [34]. He continued to ride his bike and later had an opportunity to move to a position to observe and take down the number plate of the vehicle but he did not. [18], [19]. It was estimated that he had approximately 20 seconds within which he could have, “without great difficulty”, observed the truck’s numberplate. [33], [36].

The fact that he had not done so indicated that he had failed to undertake any proper inquiry and search. [37]. The reality was that he had missed the opportunity to make productive investigations “before the scent was cold”: see Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542; [2013] NSWCA 301 at [109].

Disposition 

The claim was dismissed. [41].

A Jarro