National Redress Scheme v. Common Law Claim – Understanding what the best compensation option is for survivors of institutional abuse...
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The Nominal Defendant is a statutory body established under the MAIA Act. The purpose of the Nominal Defendant is to compensate individuals that sustain injuries resultant of the negligent driving of an unidentified or uninsured vehicle, ensuring that such individuals are not deprived of appropriate treatment or compensation. Put simply, the Nominal Defendant stands-in and operates as a CTP insurer in circumstances in which the relevant CTP insurer cannot be identified.
Pursuant to s 31(2) of the Motor Accident Insurance Act 1994 (Qld), it is to be presumed that a motor vehicle can not 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. This provision creates a positive duty upon claimants who pursue a claim for damages against the Nominal Defendant to undertake ‘proper inquiry and search’ to attempt to identify an unidentified vehicle. The scope of this duty was recently considered by the Supreme Court of Queensland in Ford v Nominal Defendant [2022].
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 issue to be determined by the court was whether the Plaintiff had established that proper inquiry and search had been made, and that this inquiry and search had failed to establish the identity of the motor vehicle.
Put simply, the Plaintiff’s position was that his duty to undertake proper inquiry and search had been discharged by virtue of the steps taken by him following the subject incident.
The Defendant’s position was that this duty had not been discharged. The Defendant submitted that in order to discharge the duty to undertake proper inquiry and search, the Plaintiff ought to have returned to the accident site for a number of days following the incident, at the same time the incident occurred, to look for the unidentified vehicle. It further submitted that the Plaintiff ought to have undertaken some form of reconnaissance in the street in which the Plaintiff saw the vehicle turn down following the subject incident.
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.
The decision in Ford v Nominal Defendant serves as a reminder that time is of the essence when undertaking inquiry and search following an incident involving an unidentified vehicle. Further, whilst the question of whether proper inquiry and search has been conducted is fact dependent, the decision highlights the difficulties that will likely face claimants who have failed to record the registration number of an unidentified vehicle when given the opportunity to do so.
National Redress Scheme v. Common Law Claim – Understanding what the best compensation option is for survivors of institutional abuse...
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