‘Proper inquiry and search’ The Court of Appeal clarifies a claimant’s duty to identify the relevant ‘at fault’ vehicle prior to bringing a motor vehicle accident claim against the Nominal Defendant.
In issue
- Whether the appellant had taken reasonable steps to attempt to identify the vehicle which had caused the incident, such that he satisfied the requirements under section 31(2) of the Motor Accident Insurance Act 1994 (Qld) (‘MAI Act’) to bring a claim against the Nominal Defendant.
The background
The appellant was a postal delivery worker who was riding his motorcycle to the Australia Post depot at the end of his shift when an unidentified utility truck passed him and entered left into his lane on a dual carriageway. As the utility truck entered the left lane, a large piece of timber fell from the back of its tray and into the path of the appellant. The appellant was able to partially avoid the timber but contacted the back wheel of the motorcycle causing it to do a 'bunny hop'. The appellant recalled feeling a 'jolt' and a degree of pain to his back and ankle when the back wheel of his motorcycle went over the piece of timber. Despite this, the appellant believed that he was uninjured at the time of the incident.
After the piece of timber fell, the utility truck moved into the right lane and then into a turning lane that would allow its driver to either turn right into a side street or do a U-turn. This all occurred within 20 seconds of the incident.
The incident jarred the appellant, and he was left in a state of shock. He stayed in his lane on the road (the left lane), felt unhurt, and could not believe his luck at avoiding injury. He said that he was on 'auto-pilot' for the remainder of the trip to the depot.
By the time the appellant returned home that night, his back and ankle felt sore. It later came to light that he had suffered a relatively significant back injury as a result of the incident.
After a period of several months, the appellant brought a claim for damages against the Nominal Defendant for the injuries suffered in the incident.
The decision at trial
At trial, the sole issue was whether the appellant had made a ‘proper inquiry and search’ so as to engage the presumption under section 31(2) of the MAI Act that the relevant motor vehicle ‘cannot be identified’ and that the Nominal Defendant stands in its place.
The primary judge found that the appellant failed to engage in a proper inquiry and search, because he:
- Could have, without great difficulty, observed and remembered the number-plate of the other vehicle;
- Was aware, immediately after his motorcycle passed over the piece of timber, that he had suffered pain; and
- Could reasonably have been expected to obtain the relevant details at the scene.
The issues on appeal
The primary issue on appeal was whether the appellant, in the circumstances that he was placed, should have taken specific steps at the time of the incident to identify the utility truck in order to make a ‘proper inquiry and search’. This required a factual examination of the options that were available to the plaintiff at the time of the incident. These options included whether the appellant:
- In the 20 seconds following the incident, and in circumstances where he believed that he was uninjured, should have pursued the utility truck by crossing lanes on his motorcycle in the hope of observing and remembering its registration number;
- Should have returned to the scene of the incident on a subsequent evening at about the same time in hopes of observing the same vehicle; and
- Should have looked for the utility vehicle in the local road network.
The decision on appeal
The Court of Appeal found that the primary judge erred in finding that the appellant had failed to engage in a ‘proper inquiry and search’.
In allowing the appeal, the Court of Appeal found that whether a party has made a ‘proper inquiry and search’ requires consideration of the reasonable measures that could be taken by the appellant, in the circumstances in which the person found themselves in. As such, the Court of Appeal found that:
- It was reasonable for the appellant to not pursue the utility truck, particularly given the fact that he believed he was uninjured in the 20 seconds following the incident;
- It was unreasonable for the appellant to return to the incident location on a subsequent evening to try and identify the utility vehicle because it was unlikely to be productive; and
- It was unreasonable for the appellant to look for the utility vehicle in the local road network because it would have likely been unproductive.
Implications for you
This case provides useful guidance on the requirements for satisfying a ‘proper inquiry and search’ when bringing a claim against the Nominal Defendant.
Ford v Nominal Defendant [2023] QCA 83
