Ford v Nominal Defendant

In this noteworthy case, the Court of Appeal considered whether the primary judge had erred in finding that by failing to attempt to obtain the number-plate details of the driver at fault following a motor accident, the appellant failed to engage in a proper inquiry and search. Overturning the decision below, the court concluded, inter alia, that “proper inquiry and search” does not require a person to undertake steps that are unreasonable, or unlikely to be productive.

Morrison J and Gotterson AJA and Applegarth J

28 April 2023

At trial, neither the negligence of the unidentified driver nor quantum were in dispute. The only contentious aspect was whether the appellant had complied with the requirements of s 31(2) Motor Accident Insurance Act 1994. [21]. The primary judge held that the appellant:

(a)could have, without great difficulty, during a period of approximately 20 seconds after the incident, observed and remembered the number-plate of the other vehicle, (i.e. by pursuing the vehicle);

(b)was aware, immediately after the incident, that he had suffered pain; and,

(c)could reasonably have been expected to obtain the relevant details at the scene. [22].

The respondent contended that the appellant ought to have undertaken additional forms of inquiry, including returning to the scene on a subsequent occasion at approximately the same time, in the hope of seeing the vehicle. [25]–[29].

The salient issues on appeal were:

1.During the 20 seconds following the incident, and in circumstances in which he did not believe that he was injured, should the appellant have pursued the vehicle by crossing lanes with a view to recording its registration number?

2.Should the appellant have returned to the scene of the incident in the hope of observing the same vehicle? [33].

Did the plaintiff undertake proper inquiry and search?

The judgment enunciates the principles relevant to the requirement that a party engage in “proper inquiry and search”. The court held as follows:

1.The question of whether a claimant has undertaken “proper inquiry and search” needs to be considered in context, having regard to circumstances comprising the person’s physical and mental state, his or her physical surroundings at a particular time, and their apprehension of whether they have been injured. (See Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66, [54]). [35].

2.“Proper inquiry and search” raises the question whether the claimant and their representatives “have taken such measures to ascertain [the identity of the vehicle] as were reasonable in the circumstances of the case having regard to the situation of the claimant”. (See Cavanagh v Nominal Defendant (1958) 100 CLR 375, 381). [36]. Time can be a relevant factor. [37].

3.It is not for the defendant to prove that the suggested inquiry or search would have identified the vehicle in question. The plaintiff must demonstrate that such an exercise would not have identified the relevant vehicle. The threshold issue, then, is whether there has been “proper inquiry and search” in the circumstances that prevailed at a certain time. [38]–[40].

4.There will be cases where no need for inquiry or search arises. Courts have not insisted on inquiries that are “purely ritualistic” and unlikely to be productive: see Nominal Defendant v Meakes (2012) 60 MVR 380, [54]. [41].

5.A claimant may be required to undertake inquiries that it was not in a position to during or subsequent to the incident. Proper inquiry is not restricted to the period immediately following the incident. [42].

6.Factors which might affect the content of “due inquiry and search” in a particular case include the physical ability of an accident victim and their mental state at the time. The cases illustrate that a person who is in shock or who does not appreciate the gravity of any injury suffered may not be required by “due inquiry and search” to record the registration of the vehicle or ascertain the identity of its driver during the time both are at the scene. Conversely, the person’s awareness that they have sustained an injury that may be compensable makes it reasonable to record a registration number that the person is able to observe and record. [43].

7.An opportunity to record the details of the other vehicle is not conclusive: see Nominal Defendant v Ayache (2014) 67 MVR 473. [44].

8.The nature of the opportunity to record the details of the vehicle at fault is a relevant circumstance. [45].

9.In assessing what is reasonable in terms of the circumstances in which a person is placed at a certain time, hindsight bias must be avoided. [46].

10.The experience of pain does not necessarily correspond with the existence of an injury, let alone with knowledge of injury. [55].

11.Searches and inquiries that are not realistically likely to produce results are not a requirement of “proper inquiry and search”. [112].

In the current matter, the Court held that the mere fact that the appellant experienced pain which possibly resulted from a compensable injury did not make it reasonable for him to pursue the unidentified vehicle. The Court noted:

“At that time, the appellant was in a state of shock. He could not believe that he had not been hurt and said that he was on ‘auto-pilot’. In that state of mind, and not appreciating that he had been hurt, it was reasonable for him to continue on his way in the left lane at a safe speed in the direction of his depot”. [61].

It was not the case that within the 20 seconds after the incident, when he did not appreciate that he had been injured, the appellant ought to have pursued the vehicle. Nor was that required by “proper inquiry and search”. Rather, it was reasonable to respond to the incident as he did. [67]. The Court also clarified that the additional steps which the respondent suggested the appellant was obliged to take (such as returning to the site of the incident, in order to observe traffic and look for the vehicle [91] and to search the local road network on a subsequent occasion) [113] were not required.

Disposition

The appeal was allowed.

A Jarro