NSW workers’ compensation claims: If we could say one thing – keep good records! Everyone has the right to go...Read More
A claimant has recently succeeded in appealing the decision of the Supreme Court of Queensland that he had failed to undertake proper search and inquiry into the identity of an unidentified motor vehicle, which would have precluded him from succeeding in a claim for damages against the Nominal Defendant.
On 11 March 2019, the Plaintiff, Trent Ford, was riding a motorcycle inbound along Redland Bay Road in Capalaba. At about 5:15pm, the Plaintiff was travelling up an incline on Redland Bay Road when a light truck passed him, and began to enter the Plaintiff’s lane. As this occurred, a small piece of timber slid off the tray of the truck, falling on to the roadway in front of the Plaintiff. The Plaintiff subsequently took evasive action, with the timber missing the motorbike’s front wheel, but hitting the back wheel. The subsequent jolt allegedly caused the Plaintiff personal injuries. The Plaintiff provided evidence at trial that he had around twenty (20) seconds following the incident to record the number plate of the light truck.
Thereafter, the Plaintiff undertook a number of actions in an attempt to ascertain the identity of the light truck, namely: –
The Plaintiff subsequently lodged a Notice of Accident Claim Form with the Nominal Defendant. Thereafter, he engaged an investigator who made some enquiries but was unable to provide any useful information. The Nominal Defendant also engaged an investigator who made enquiries of people who lived in the nearby vicinity of the incident, but these enquiries were equally unsuccessful.
The court found that the Plaintiff had not established that he had conducted a proper inquiry and search, and as such, the claim was dismissed.
In the view of the court, as the Plaintiff immediately knew that he had sustained an injury after riding over the piece of timber, his failure to obtain the registration number in the available twenty (20) seconds following the incident amounted to a failure to engage in any proper inquiry and search. The court was not swayed by the Plaintiff’s later attempts to identify the vehicle, citing Workers Compensation Nominal Insurer v Nominal Defendant (2013) in asserting that search and inquiry should be undertaken “before the scent was cold”.
The court considered the Defendant’s contention that the Plaintiff ought to have returned to the accident site for a number of days following the incident to be unrealistic. It was, however, more receptive to the premise that the Plaintiff should have undertaken reconnaissance in the streets around the incident site by placing notices seeking information in letter boxes on the street.
An appeal of the Supreme Court of Queensland’s decision was subsequently made. Per Applegarth J, the essential factual issues raised by the appeal were: –
With respect to the first factual issue, the court opined that the fact that the appellant had experience pain from the initial jolt, and the possibility that this pain may be of the nature of a compensable injury, did not make it reasonable for him to engage in a pursuit of the unidentified vehicle. Of note to the court in coming to such a conclusion was that the appellant was not aware that he had been injured, as well as the likelihood that he may sustain further injuries in a pursuit of the unidentified vehicle. In conclusion, the court was not satisfied that “proper inquiry and search” obliged the appellant to pursue the vehicle in order to ascertain and remember its registration number.
With respect to the second factual issue, the court considered it ‘most unlikely’ that the appellant would have been able to identify the at-fault vehicle, should they have returned to the scene of the incident on a subsequent evening at about the same time. Accordingly, the court was of the opinion that such a course of action was not necessary in order to make “proper inquiry and search”. Similarly, the court’s response to submissions that the appellant should have undertaken a physical search of the local road network was that such a search was unlikely to be productive.
In light of the above, the court concluded that the appellant had established that the operation of the words “proper inquiry and search” within s 31(2) of the Motor Accident Insurance Act 1994 (Qld) did not require the appellant to undertake the steps suggested by the respondent. As such, the appellant’s claim was allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim. The respondent was ordered to pay the appellant’s costs of both the first proceeding and the costs of the appeal.