Damages-Action against nominal defendant-" Due inquiry and search"- Evidence-Motor vehicle-Identification-Motor Vehicles (Third Party Insur- ance) Act 1942-1951 (N.S.W.), 8. 30 (2) (a).*

Upon its true interpretation S. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act 1942-1951 requires a plaintiff to show not that no knowledge of the identity of the alleged offending motor vehicle exists elsewhere, even in public authority, but that no sufficient knowledge of (or perhaps means of establishing) the identity of such vehicle has come home to him or to his servants or agents or to those for whom he is vicariously responsible notwith- standing that all such measures as were reasonable in the circumstances having regard to his situation were taken by him or them to ascertain it.

The words " cannot be established" in 8. 30 (2) (a) must be confined in their operation to the plaintiff or those acting for or on behalf of the plaintiff or in his interest. They cannot apply or operate universally.

The word " due" in the sub-section brings with it the circumstances of the case as the test of what inquiry and search will suffice.

A plaintiff in an action against the nominal defendant under S. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act 1942-1951 led evidence fit to Section 30 of the Motor Vehicles

in respect of the death or bodily injury (Third Party Insurance) Act 1942-1951

may enforce against the nominal provides :-

(2) (a) Where the

defendant the claim which he could death of or bodily injury to any person

have enforced against the owner or is caused by or arises out of the use of a

driver of the motor vehicle. motor vehicle upon a public street but

The inquiry and search for the pur- the identity of the motor vehicle cannot

pose of establishing the identity of the after due inquiry and search be estab-

motor vehicle may be proved orally lished, any person who could have

or by the affidavit of the person who enforced a claim for damages against

made the inquiry and search." the owner or driver of the motor wehicle

100 CLR 376

be left to a jury to establish that she had made due inquiry and search to ascertain the identity of the motor vehicle alleged to have caused her injuries and that she was unable from her inquiries to identify such vehicle. She further sought to give oral evidence of what the police had told her as to the result of their inquiries to identify the vehicle and also to tender a letter from the police department answering her query as to whether the department had succeeded in identifying the vehicle. Both pieces of evidence were rejected, The trial judge directed the jury to return a verdict for the defendant upon the ground that the plaintiff had failed to prove…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cavanagh v Nominal Defendant

Details

AGLC: Cavanagh v Nominal Defendant [1958] HCA 57
Case: [1958] HCA 57
Decision Date: 19 December 1958

CaseChat Overview and Summary

The case of *Cavanagh v Nominal Defendant* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, June Clare Cavanagh, sought to recover damages for personal injuries sustained in a motor vehicle accident, alleging negligence by an unidentified driver. She brought her action against the nominal defendant pursuant to s 30(2)(a) of the *Motor Vehicles (Third Party Insurance) Act 1942-1951* (N.S.W.), which allows claims against the nominal defendant when the identity of the offending vehicle cannot be established after due inquiry and search.

The central legal issue before the High Court was the proper interpretation of s 30(2)(a) of the Act, specifically concerning the requirements for a plaintiff to demonstrate that the identity of an offending motor vehicle could not be established after due inquiry and search. The court was required to determine what constituted "due inquiry and search" and to whom the inability to establish the vehicle's identity must apply. A further issue was the admissibility of evidence relating to the plaintiff's inquiries and the results obtained, particularly from police investigations.

The High Court held that the trial judge had erred in directing a verdict for the defendant. The court reasoned that s 30(2)(a) requires the plaintiff to show that they, or those acting on their behalf, were unable to establish the vehicle's identity despite taking reasonable measures in the circumstances. It does not require proof that no one else, including public authorities, possessed knowledge of the vehicle's identity. The court found that evidence rejected at trial, including communications from the police regarding their inability to identify the vehicle, was admissible to prove the result of the plaintiff's inquiries. This evidence, when considered alongside the plaintiff's own efforts, could have been sufficient to allow the jury to determine whether the condition of inability to establish identity after due inquiry and search had been met.

Consequently, the High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales. The court ordered that the appeal to the Supreme Court be allowed with costs, and a new trial be held. The costs of the first trial were to abide the event of the second trial.

Orders