The plaintiff was riding his motorcycle when a piece of timber slid off the tray of an unidentified truck and onto the roadway in front of him. The plaintiff’s motorcycle collided with the timber and, as a result, he suffered an injury. The Court was asked to consider whether the plaintiff had conducted proper inquiry and search to identify the unidentified vehicle.
In issue
Whether the plaintiff conducted proper inquiry and search to establish the identity of the unidentified motor vehicle.
The background
The plaintiff was riding his motorcycle when a piece of timber slid off the tray of an unidentified truck and onto the roadway in front of him. The plaintiff’s motorcycle collided with the timber and, as a result, he allegedly jarred his back.
Under cross examination, the plaintiff admitted that he was in immediate pain after the collision and that he observed the unidentified vehicle for at least 20 seconds after the collision. Despite this, the plaintiff failed to record the registration number of the vehicle.
Approximately 6 months after the collision, the plaintiff went to three businesses situated near the collision to see if they had any CCTV footage, which they did not. He also engaged an investigator who was unable to provide any useful information. Under cross examination, the plaintiff said he traversed the accident site for many months after the collision, which was not accepted.
The defendant conceded that the accident was occasioned by the negligence of an unidentified person but alleged that the plaintiff failed to conduct proper inquiry and search. The parties had agreed on quantum.
The court was asked to determine whether the plaintiff had conducted proper inquiry and search pursuant to section 31(2) Motor Accident Insurance Act 1994 QLD (MAIA).
The decision at trial
The predecessor to the MAIA was the Motor Vehicles Insurance Act 1936 (MVIA) which, in a similar provision, referred to 'due inquiry and search'. The court determined that the change in wording from 'due' to 'proper' did not impose a higher burden of proof on the plaintiff. On that basis, the court held that the previous case law relevant to due inquiry and search held the same weight as for consideration of 'proper inquiry and search'.
The court found that the plaintiff immediately knew that he suffered an injury and had at least 20 seconds in which to position himself so that he could record the registration number of the unidentified vehicle. The court considered that the plaintiff, by his failure to obtain the registration number, failed to engage in any 'proper inquiry and search'. The court also considered that to go back some months later would have been the triumph of enthusiasm over reason and that reiterating the words of McColl JA in Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542, the period of inquiry should be made 'before the scent was cold'.
The Nominal Defendant had argued that proper inquiry and search would have required the plaintiff to return to the collision site for a few days at about the same time, to look out for the vehicle. The court considered that such action was unrealistic and that a plaintiff is not required to take steps which are no more than a ritual and unlikely to be productive. However, the court considered that had the plaintiff returned to the collision site within a short period of time and placed notices in letter boxes, then this would have been a reasonable step to take.
Implications for you
Whether a plaintiff conducts proper inquiry and search will be decided on the facts of the case. However, if the plaintiff fails to avail themselves of the opportunity to record the registration number of an unidentified vehicle at the time of a collision, then it is likely that they will not have made proper inquiry and search.
However, such failure could be mitigated if the plaintiff undertakes actions immediately after the accident to identify the vehicle, such as canvassing the accident scene and conducting letter box drops.
