Coyne v The Nominal Defendant
[2022] NSWPIC 54
•8 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Coyne v The Nominal Defendant [2022] NSWPIC 54 |
| CLAIMANT: | Dylan Coyne |
| INSURER: | The Nominal Defendant |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 8 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); whether common law claim can be made against Nominal Defendant under section 2.30 of the MAI Act; in issue whether due inquiry and search had been undertaken to ascertain the identity of the vehicle in circumstances where 16 year old claimant had been given photograph at the scene after the accident which may have shown the vehicle, claimant did not save photo and phone later destroyed; Held- Claimant had not ever identified the vehicle because he had not looked at the photographs; The Workers Compensation Nominal Insurer vs Nominal Defendant distinguished; Claimant had a limited opportunity to obtain the details of the vehicle after the accident but was disabled from doing so due to his age and injury; Nominal Defendant v Meakes, Nominal Defendant v Ross and Nominal Defendant v Ayache considered; efforts of search and inquiry 12 months after the accident were due bearing in mind age of claimant and delay in onset of serious symptoms and advice at time of accident that he only had ‘minor injuries’; Claimant permitted to bring claim against the Nominal Defendant. |
| DETERMINATIONS MADE: | 1. In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: a. For the purposes of section 2.30, there has been due inquiry and search. b. The claimant’s costs in the matter are assessed at $6,701.28 inclusive of GST. 2. A statement setting out the Commission’s reasons for the assessment are included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 18 February 2019, Dylan Coyne was riding his pushbike along the footpath adjacent to the Princes Highway at Kirrawee. As he passed a 7-11 petrol station, a vehicle came out of the driveway and knocked Mr Coyne off his bike. Mr Coyne says he sustained knee injuries in the accident.
Mr Coyne’s accident occurred about seven weeks before his 17th birthday.
On or about 19 January 2021, Mr Coyne served notice of a claim for damages on the State Insurance Regulatory Authority (SIRA) under the Nominal Defendant scheme. Mr Coyne did not know the registration number of the vehicle that hit him and therefore could not ascertain the third-party insurer of the vehicle. SIRA in due course forwarded the claim to Allianz Australia Insurance Limited (Allianz) to manage the claim for the Nominal Defendant[1].
[1] At the time of the first teleconference in this matter, Mr Coyne had not lodged a claim for statutory benefits under Part 3 of the MAI Act. It is understood such a claim has now been lodged, but that claim is not before me.
Mr Coyne’s claim for damages is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act).
On 19 April 2021, Allianz denied the claim on the basis that the claimant had not made due inquiry and search to establish the identity of the vehicle as required by s 2.30 of the MAI Act. The claimant sought internal review and on 3 May 2021 Allianz affirmed its decision.
Mr Coyne has referred to the Personal Injury Commission (the Commission) his dispute with the insurer about:
7.“Whether for the purposes of section 2.30 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identify of a motor vehicle[2].”
[2] Schedule 2 clause 3(1) of the MAI Act. Schedule 2 declares certain matters to be merit review matters (clause 1), medical assessment matters (clause 2) or miscellaneous claims assessment matters (clause 3).
The dispute has been allocated to me and I have held three teleconferences in the matter and an assessment conference.
The issues in dispute between the parties are:
(a) whether the vehicle was identified at the time of the accident and therefore whether there is a claim maintainable against the Nominal Defendant, and
(b) if the vehicle is unidentified, whether the claimant has undertaken due inquiry and search.
STATUTORY FRAMEWORK
The MAI Act provides a scheme of compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme for the payment of statutory benefits and compensation to persons injured in a motor accident in New South Wales.
The scheme of compulsory insurance is privately underwritten and ordinarily a claim for damages would be made against the third-party insurer of the vehicle the injured person alleges caused the accident and their injuries. In most compulsory insurance schemes there is a ‘safety valve’ in circumstances where there is no third-party insurer to make a claim against.
Under the MAI Act, claims for damages are permitted where the vehicle that caused the accident is unregistered and therefore uninsured (s 2.31) or where the vehicle is unidentified (s 2.30). In both cases, the claim is made against the Nominal Defendant.
Section 2.27 of the MAI Act provides that:
(1) The Authority [SIRA] is, for the purposes of this Act, the Nominal Defendant.
(2) Any action or proceeding by or against the Nominal Defendant is to be taken in the name of the “Nominal Defendant”.
Section 2.30 of the MAI Act provides for damages claims to be made by injured persons against the Nominal Defendant as follows:
(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
(3) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4(1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(4) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(5) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.
Section 2.31(1) provides for the rejection of claims made against the Nominal Defendant, time limits for the insurer to reject the claim and for dispute resolution of claims made under s 2.30 as follows:
(1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 2.30 cannot be referred for assessment under Division 7.6 unless—
(a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or
(b) the Commission has determined that due inquiry and search has been made, or
(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
Mr Coyne has referred his claim for damages to the Commission for assessment but that matter has not yet been allocated because of the proceedings that are before me for determination. The parties agree that the Nominal Defendant has not lost the right to reject the claim and Mr Coyne does not seek the exemption of his claim from assessment.
Both of ss 2.30 and 2.31 clearly relate to claims for damages made under Part 4 of the MAI Act. There does not appear to be any equivalent in a claim for statutory benefits claim made under Part 3 of the MAI Act[3].
REVIEW OF THE EVIDENCE
The claimant’s statements
[3] Section 3.2(2)(c) provides that the Nominal Defendant can be the relevant insurer and therefore liable to pay statutory benefits, but s 3.2 does not require due inquiry and search before that claim can be made. Section 3.2 also provides for the recovery of statutory benefits paid by the Nominal Defendant presumably if an unidentified vehicle subsequently is identified.
The claimant provided a statement with his application dated 2 March 2021[4]. At [4] he provides this history:
19.“On 18 February 2019 I had just taken the train and got off at Sutherland Station to ride my bike to work. At approximately 7.45am I was riding my bike along the footpath on the Princes Highway. As I passed the 7-Eleven petrol station located at 542 Princes Highway Kirrawee… a vehicle came out from the petrol station without warning and collided with my bike. The accident resulted in me being thrown from the bike and landing heavily to the ground on my knees.”
[4] This document is identified as document A4 in the claimant’s original bundle of documents identified as document A1 in the portal.
The claimant says [5] he is not aware of the identity of the driver involved in the accident.
The claimant says at [8]-[9] he left school at the end of 2017 after finishing year 10 and was undertaking an apprenticeship as a welder.
He says [10] he took two weeks sick leave and annual leave after the accident because his knee was painful and unable to move. He says [11] that he had surgery to his knee on 29 July 2020[5] and used another two weeks sick and annual leave.
[5] A document identified as A7 in the claimant’s bundle is the hospital notes from that admission. The surgery is noted as being ‘right knee, removal of loose body and arthroscopy.
Mr Coyne expresses concern at his ability to work and says he has been advised his knee will continue to deteriorate [13]. He further details his treatment and the advice of Dr Tan at [15]-[20]. He said he went to hospital and was x-rayed but told there was nothing broken.
He was not intending to go to the hospital after the accident, but his boss told him over the phone to check that he was not hurt. He had grazes and bruises [21]. Mr Coyne said he did not report the accident to the police at the time as he did not know he had to. He said he eventually went to Wollongong Police Station after seeing his solicitors and he reported the accident. The police were not interested and did not give an event number due to the time that had elapsed since the date of the accident [22].
The claimant says from [23] that after the accident:
(a) the driver got out of his car and asked if Mr Coyne was OK;
(b) Mr Coyne said he was OK;
(c) the driver left immediately afterwards and did not offer assistance;
(d) Mr Coyne was in shock and did not look at or remember the number plate, and
(e) he described the driver as Caucasian in his twenties and wearing a suit, and that the car was blue.
The claimant then says there were tradespeople “working at the 7-Eleven”. One of them took a photo of the number plate of the car and the other drove him to Sutherland Hospital. Mr Coyne says [27] he did not get the names or details of these workers or the photo of the number plate.
In terms of search and enquiry the claimant says:
(a) on the day of the accident, he returned to the 7-Eleven with his boss to collect his bike and looked for the workers as he knew one of them had taken a photo. They were not there [29];
(b) in September 2020 after first meeting with Gerard Malouf & Partners (GMP) he went back to the 7-Eleven to ask for CCTV film (there was none), the name of the workers (they had no record) or any other record of the accident (there was none) [31];
(c) on 29 January 2021 he asked his solicitors to write to 7-Eleven asking for details [32] but there has been no response[6] , and
(d) on 1 February 2021 he instructed his solicitors to put an advertisement in the local newspaper which was published on 17 February 2021 with no response.[7]
[6] This letter is document A6 in the claimant’s bundle.
[7] The advertisement is identified as document A5 in the claimant’s bundle.
A second statement from the claimant was obtained by the insurer. Apparently, the insurer did not contact the claimant’s lawyer about this beforehand in what the claimant’s legal representative says is a breach of the Motor Accident Guidelines. As the statement contains information relevant to the dispute, I determined it should be allowed into evidence regardless of the circumstances in which it was taken.[8]
[8] The statement and a covering letter are identified as documents AD1 in the portal.
The statement was taken on 27 April 2021 by Penny Berman of Quantumcorp investigators and the claimant’s mother was present. The main features of the statement are:
(a) the claimant had never had a previous personal injury claim or injury to his right knee [9]-[10];
(b) Mr Coyne was riding his brother’s BMX bike at the time, with his permission, and it was in perfect condition [11]-[16];
(c) the claimant was wearing his work boots, work pants and a shirt. He was not wearing ‘high vis’ or a helmet [19]-[21];
(d) there is no bike lane on the highway, so he chose to ride on the footpath [32]. He would ride past the 7-Eleven on a daily basis and before the accident he was riding at 5-10km per hour [36] with his hand over the brake [37];
(e) there was an abandoned building adjacent to the driveway which blocked his view of vehicles coming out of the driveway and he assumed would block the view drivers had of the footpath [39];
(f) when he was in the middle of the driveway a blue sedan vehicle drove to the edge of the driveway without stopping [42], Mr Coyne had no time to stop and there was a truck in the first lane of the highway so he could not swerve left to get around the car [43];
(g) the car impacted the bike and the claimant fell onto the grass verge and his bike landed in front of the car [44]-[46];
(h) the driver got out ‘for a second’ asked if he was OK and then got back into his car and left ‘within 1 minute’ [47];
(i) there were no passengers, but he saw green P plates on the vehicle [48];
(j) he had blood running down his leg from a knee wound [51] and he walked over to some workers at the rear of the service station asking for a tissue [53];
(k) while he was cleaning up, he called his boss who told him to go to the hospital [54]. While he was on the ground one of the workers took a photo of the vehicle [55];
(l) “The worker who took the photo sent me a copy of the photo. I did not write down the details of the registration from the photo. The photo was sent to me on an old phone which I no longer have. I have been unable to retrieve the photo” [56];
(m) he had the details of this worker, but it was on his old phone which he does not have [57];
(n) he thought he had just sustained a scratch so did not think he would need the details of the worker or the photo [58];
(o) he left the bike at the scene and one of the workers took him to Sutherland Hospital [59]-[60];
(p) he did not have the name or details of the workers, but he describes them [61];
(q) his boss picked him up from the hospital and they went back to 7-Eleven to retrieve the bike [64] and then he was dropped off at the train station to go home [65];
(r) when he went back to the 7-Eleven he did not ask for CCTV footage because the hospital had said there was nothing wrong with his knee and the bruising and abrasion healed [67]-69];
(s) about a year after the accident, he started having pain in his right knee, he went to see a doctor and he was told he needed surgery [70]-[72];
(t) he details the return trip to 7-Eleven in 2020 and the enquiries made at that time. He recalls the workers were working on the roof of the 7-Eleven on a cherry picker at the northern end [77];
(u) at that stage he had not made enquiries with Optus [81], and
(v) he has done nothing else to try to identify the vehicle [82].
The claimant has provided a third statement[9] dated 26 October 2021 in which he says:
(a) at the time of the accident, he had his learner’s driver license, had left school a few months before the accident, had never owned a car, had never purchased compulsory third party (CTP) insurance and did not know anything about the CTP scheme or the nominal defendant scheme [3]-[9];
(b) he could not see the registration plate from where he fell, but a worker took the photo “which I believe did include the registration details of the car” [11];
(c) the photo was sent to him as an attachment to a message;
(d) a few months after the accident, while at school, he dropped his phone and “it completely smashed and could not be turned on” and he got a new phone but not all of the data was transferred [18];
(e) his symptoms got worse at about eight months after the accident;
(f) at the first consultation with GMP he was advised about due inquiry and search, and
(g) he then made enquiries with Optus [27] and Apple [28] but has been told there is no way to retrieve the data from the old phone.
[9] Document 2 in the claimant’s updated bundle (AD4 in the portal).
There is a fourth statement from the claimant (dated 24 January 2022) in which he explains the inconsistencies between his first statement (no details of the worker and no photo provided) and his second statement (details obtained and the photo was provided):
(a) when he said in his first statement that he had not been given the photo of the car by the workers he thought that was true [2]-[3] however after he gave that statement he spoke to his boss and asked him about the photo and whether it had been given to him [4];
(b) his boss told him he had been sent the photo [5];
(c) he said he was in shock and in a daze after the accident and did not remember receiving the photo and that he did not recall saving the photo into his phone [6];
(d) it was after he had spoken to his boss that he spoke to the insurer’s investigator which is why he told the investigator he had the photo because at that stage he had remembered [7], and
(e) he said his recall of details improved as he was asked about specific details and more probing questions [10].
The claimant’s oral evidence
The claimant gave evidence that he was still employed by Alsob Engineering. Mr Coyne said that the foreman, Paul Hennan was the person he rang after the accident.
He said:
(a) at the time of the accident, he was living with his mother and his three younger siblings near Wollongong;
(b) he had a fair recall of the accident;
(c) the driver jumped out of his car after the impact and asked him if he was OK. The claimant said he thought he was OK and said that at which point the driver jumped back in his car and drove off;
(d) he saw the green P plates on the back of the car as it drove away;
(e) he then rang the foreman, Paul Hennan and said he was going to be a few minutes late because he had just been knocked off his bike. The foreman told him to go to hospital to get checked out before coming back to work. He said to ring him when he was done, and he would come and collect him;
(f) he then rang his mum to tell her, but she could not get him to the hospital and then a worker came over and offered to take him to the hospital. This person gave him some paper towel to wipe his knee and took him to hospital in his white work van and dropped him out the front of the hospital;
(g) he was shocked by the accident, and it took him a while to “process it” and what had happened which is why he said he was “ok” when the driver asked him;
(h) he left his bike with the workers who said they would be there all week. When he came back from the hospital the workers were there and he had a conversation with them. They asked how he was, and he said, “just a scratch”;
(i) one of the workers, the one who he thought was the boss, told him he had taken a photo and asked him if he wanted it. The claimant said he refused it, but Mr Hennan said he should take the photo “just in case” he needed it;
(j) he gave his phone number to the worker who sent him the photo. I asked him if the photo was airdropped or whether it was sent as a message. He said it was sent as an attachment to a message;
(k) he clicked on the message to switch the status of the message from unread to read but he did not look at the photograph;
(l) he did not send the photos to anyone or share it with anyone. He did not give it to his boss or his mum. He did not save the photo into his photos;
(m) he called Apple but they could not help as the photo was not saved to his phone;
(n) he clarified [18] of his statement to say his phone was accidentally smashed while he was at TAFE and not school, and
(o) he also clarified that it was about a year after the accident (not eight months) that his knee pain got worse and that it was a few months later that he took himself off to his doctor and then Dr Tan.
Mr Adhikary asked the claimant how his knee was when his phone was smashed, and Mr Coyne said his knee was fine at that stage.
Ms MacDonnell asked the claimant about his statement and the presence of the wall blocking his view and the wall blocking the view of those exiting the service station and he agreed. He said he had ridden on the footpath many times and that drivers always stopped before crossing the footpath and pulling out into the traffic. Later, in answer to a question from Mr Adhikary, the claimant said he had never driven out of the 7-Eleven in order to assess what he could or could not see.
Ms MacDonnell asked the claimant whether the driver had offered Mr Coyne his license details and the claimant said he did not. In answer to other questions from the insurer’s representative, Mr Coyne said:
(a) when he first talked to his foreman, he was not asked about how the accident happened although they had a conversation about this in the car on the way back from the hospital to the 7-Eleven;
(b) he did not get the name of the man who drove him to the hospital, they had a bit of a chat on the way in the car and the man said the accident was not his fault;
(c) the fellow who drove him to the hospital and the one who took the photos were ‘tradies’ working on the 7-Eleven site and not 7-Eleven workers;
(d) he knew nothing about the photo before he went to the hospital, and
(e) when his boss told him to keep the photo “just in case” he does not remember being told about making a claim or that he should keep the photo just in case he needed to make a claim.
Ms MacDonnell asked the claimant about his May 2020 thumb injury which happened at work and whether he made a workers compensation claim. The claimant said that his boss made a workers compensation claim for him.
Ms MacDonnell formally put to the claimant that the reason he did not obtain the details of the driver was because he knew he was at fault. The claimant denied this.
I asked the claimant whether he was the sort of person who cleaned up his phone regularly, removing old messages, photos and so on. He said he was not and that he had apps on his phone (games) that he did not use but that were still there. I asked him if his phone had not been smashed, would he still have the message and the photo that had been sent to him and he said that he would.
[Image unable to be replicated]
During the course of his evidence, I shared my screen and showed Mr Coyne the marked-up aerial shot of the Kirawee 7-Eleven above. The car and the bike have been sketched on to the photograph and the claimant said the workers were working in the area at the back of the service station which I indicated with the pointer on my mouse and which I have circled in red. Under the roof between that area and the driveway were the petrol bowsers. The claimant said that the worker who took the photograph was nowhere near him and was at the back, behind him.
Other statements
The claimant’s mother Ann-Maree Smith has provided a statement dated 26 October 2021. She says:
(a) she has had two car accidents but never made a motor accident personal injury claim [3];
(b) she was in Wollongong when Dylan rang her to tell her he had been in an accident, but she could not drive to assist him [4];
(c) he complained of pain for a while, but she told him “to get over it and stop complaining” [6];
(d) eight months later he complained again, and she told him he was fine [7] so Dylan took himself off to see a doctor and obtained a referral to Dr Tan [8];
(e) Dr Tan told them that the accident was likely to be responsible and that he had a potential claim for compensation [9]-[10];
(f) Ms Smith then made contact with a law firm who said they would not help her following which she then tried to get CCTV footage from the 7-Eleven and in September 2020 she went to GMP [12]-[14], and
(g) she says, at 15:
“By the time we were made aware of the injury and its connection to the accident, Dylan’s phone had broken, and we could no longer obtain the photo of the vehicle.”
Finally, there is a statement from the claimant’s solicitor Ms Eades concerning the claimant’s first two statements and the apparent inconsistency about the photograph being sent to her client. Ms Eades says that until she received the insurer’s April 2021 statement, on 6 September 2021, she was unaware that the claimant had been sent the photo.
Ms Eades says that in January 2022 she contacted Optus to see if they could recall a message, but she has been advised that was impossible.
Other evidence
Within the hospital notes is the discharge referral from Sutherland Hospital dated 19 February 2019 in the form of a letter to the claimant’s general practitioner (GP), Dr Syed Zafar of which the pertinent details are:
(a) the history given is of “BMX bike vs Car” and patient on bike was “hit by car travelling at 20 km/hr which was driving out of a service station. Was not physically hit by car himself, the bike was hit by the car, but fell off bike landing on right hip and knee”;
(b) on examination there was “mild tenderness at right anterior thigh and knee, nil point tenderness on LLL [left lower leg]. Skin graze on R anterior knee”, and
(c) an X-ray was taken, and the report says, “no significant knee joint effusion … and no obvious fracture or dislocation evident”.
There are records from Dr Tan including a letter dated 20 July 2020 to Dr Rajan of the Miranda Medical Centre[10]. Dr Tan has a history of the accident and records a “very large loose body” which has come from the medial femoral condyle which has dislodged and locked his knee. He considered it to be an older injury because of cystic changes. He says most probably it is an injury from his accident. He advised surgery and indicated the claimant would develop arthritis and may require multiple surgeries to his knee later including total knee replacement. A further report to the claimant’s solicitors dated 17 September 2021[11] repeats these findings and the prognosis.
[10] Document 7 in the claimant’s bundle AD4.
[11] Document 8 in the claimant’s bundle AD4.
Records from the Miranda Medical Centre[12] indicate the claimant was a new patient there in May 2020. There are a number of consultations regarding an unrelated hand injury and the first attendance for the knee was 25 June 2020. The referral to Dr Tan is dated 6 July 2020 and says “no recent injury, right knee pain for 3 weeks”.
[12] Document 9 in the claimant’s bundle AD4.
The insurer has provided a copy of their investigator’s report dated 15 May 2021[13]. This report states that a canvass of the scene was undertaken for witnesses and that a person called Nadeen was contacted from 7-Eleven who said he would attempt to trace the workers. The investigator was then told to make enquiries through head office.
[13] There is no document number identifying this in the portal.
In answer to a direction to produce, 7-Eleven’s head office advised:
“To the best of my client’s knowledge, an employee of the store recalls that the workmen referred to … were customers of the store and were not contracted to engage in any work at 7 Eleven Kirrawee on the date of the incident, they merely happened to be on the premises at the time.”
Also provided by 7-Eleven were details of fuel technicians who may have been on site at the time.
Penny Berman the Quantumcorp investigator gave a statement that the claimant’s second statement was typed by her at the time of the meeting “apart from some terminology and explanation of directions, scene description and weather / visibility points”. She says other than that, the statement was typed “based on what Dylan specifically said during the interview, using his words”[4].
SUBMISSIONS
Claimant’s submissions
The submissions lodged with the application are not of great assistance as they were made after the claimant’s first statement but before his second.
The claimant’s second submissions lodged with the final bundle of documents addresses the irregularities in how the second statement was obtained and requests that it be omitted from the evidence ‘due to the prejudicial nature of it’. No further submissions were made in respect of the statement at the hearing and in the light of the third and fourth statements and the claimant’s oral evidence explaining the inconsistencies between the first and second statements in my view there is no prejudice to either party and no reason to not consider the statement in this assessment.
The remainder of these submissions deal with the following:
(a) Mr Coyne’s claim should be distinguished from the Nominal Insurer v Nominal Defendant case[14] as the claimant had not contemplated making a claim when he was given and lost the details of the car whereas the claimant in the Nominal Insurer case was aware he had been injured, had a claim and knew he had to record the details of the driver and car;
(b) the process of ‘inquiry’ only begins when the claimant contemplates making a claim;
(c) in answer to the insurer’s submissions that the claimant did not act reasonably, the claimant relies on Blandford v Fox[15] and says the inquiry and search is judged as reasonable ‘in the circumstances’ and that includes the circumstances of the accident and the claimant;
(d) the ability to undertake search and inquiry is influenced by the claimant’s physical ability and disabilities and that, because of his age he was under a form of disability and could not be considered a ‘reasonably informed member of the community’ like the claimant in Meakes v Nominal Defendant[16];
(e) the claimant was disabled at the time of the accident both due to his age and the shock he was experiencing and relies on the case of Ayache v Nominal Defendant[17], and
(f) the claimant says his case is like the plaintiff’s in Ross v Nominal Defendant[18]. While that claimant was a lawyer, he had an opportunity of about one and a half minutes to obtain the details of the other driver but did not and he did not become aware of the seriousness of his injuries for five or so weeks after the accident by which time the CCTV footage that may have existed was not in existence. The Ross case is authority for the fact that assessing whether due inquiry and search has been undertaken requires a prospective not retrospective analysis. Mr Ross did not know that CCTV footage would only be kept for 28 days, and Mr Coyne did not know he would be unable to retrieve the photo given to him by the witness later. The claimant also submits that there was no guarantee that Mr Ross’s CCTV footage would have shown the registration details or that the photo would be taken and retained by the witness.
[14] Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 (Nominal Insurer case).
[15] (1944) 45 SR (NSW) 241.
[16] [2012] NSWCA 66 at [70] (Meakes).
[17] [2014] NSWCA 253 (Ayache).
[18] [2012] NSWCA 212 (Ross).
At the assessment conference, Mr Adhikary repeated his submissions that the claimant had undertaken due search and inquiry in particular, given the circumstances of his age and lack of knowledge of the claims and Nominal Defendant process. He referred to the claimant’s evidence of being shocked and having not processed what had happened when the driver left the scene. He said it is important that the driver did not render any assistance.
In terms of the issue of whether the vehicle was identified, Mr Adhikary argued that the case of Nominal Insurer vs the Nominal Defendant can be distinguished because in that case the details of the car and the driver had been written down by the injured person, handed over and then lost. The injured person in that case knew at some stage the details of the driver and car that had collided with him. Mr Adhikary said that Mr Coyne’s evidence was that he never looked at the photo he had been sent, so he had never known the identity of the vehicle that hit him. He said we do not know about the quality of the photograph or where the worker was when he took it and we do not know for certain whether it actually would have identified the vehicle.
Mr Adhikary said it was important that at the time the claimant’s phone was smashed and the photo destroyed, his knee was fine.
Insurer’s submissions
The insurer’s solicitor’s submissions lodged with the reply are dated 19 November 2021. They identify three issues:
(a) Whether the vehicle that caused Mr Coyne’s accident is in fact an unidentified vehicle giving rise to the due inquiry and search requirement.
(b) If it is, whether due inquiry and search has been established?
(c) Whether there are further enquiries that need to be made?
The insurer notes that the claimant’s submissions appear to assert that the obligation to undertake due inquiry and search only arises when a person is contemplating making a claim. The insurer says this undermines the provisions of the MAI Act.
The insurer says that the claimant had the identity of the vehicle in his possession for a period of time and chose not to preserve it and this does not entitle him to now rely on the due inquiry and search provisions to bring a claim against the Nominal Defendant. While the insurer appears to concede the claimant may have had good reason – the delay in the onset of significant symptoms – it says this does not cure the fact the vehicle had been identified.
The insurer says I should consider whether the claimant’s conduct was that of a reasonable person and says the claimant did not act reasonably because such a person would have taken steps to preserve the identity of the vehicle.
If I consider the vehicle is an unidentified vehicle the insurer points out (at 5.2) that if the vehicle is unidentified, the driver is unidentified and therefore the Nominal Defendant is prejudiced and unable to ascertain his version of events. The insurer argues (at 5.3) that prejudice is a relevant consideration and part of the reason for the due inquiry and search provisions to protect against fraud or other ‘abuse’ relying on Blandford v Fox.
The insurer says that I can infer the primary reason for the claimant not preserving the registration details was because he believed he was at fault (5.5) and that this is of ‘utmost relevance’ (5.6). In terms of liability, the insurer says:
(a) the circumstances of the claimant riding his bike include ‘importantly’ that he was not wearing ‘high-viz’ gear or a helmet and the bike did not have lights (6.4);
(b) that the claimant always rode along the footpath leaving it up to drivers to give way to him (6.6), and
(c) it is illegal to ride on a footpath (7.1), that the claimant’s view was as obstructed as the driver’s and that there would be no liability on the unidentified vehicle or substantial contributory negligence (7.2-7.5).
On the topic of due inquiry and search the insurer says:
(a) the claimant’s versions of events differ as to the steps he took to identify the vehicle;
(b) in his first version he said he was in shock and did not understand he needed to get the driver’s details and that he could not see the number plate. One worker drove him to hospital and the other took a photo – he did not get their details and they did not send me the photo;
(c) he had a smart phone with him. He said he could see the P plates. If could see the P plates he should have been able to see the number plates and could have taken a photograph of them;
(d) I would not accept that the claimant did not know the registration details were important because a reasonable person would realise that if there was an incident at work or on the roads you should take details;
(e) the claimant must have known the details were important because of the fact they were sent to him, and
(f) the claimant attended the service station later in the day and made enquiries about CCTV footage and the workmen and he must have done that because someone had told him it was important.
The insurer argues that the relevant test is whether the claimant’s actions were those of a reasonable person having regard to the circumstances of the case.
(a) the insurer submits the claimant was nearly an adult and getting himself to work every day;
(b) he must have known that if he was hurt by someone’s negligence, he had the ability to make a claim;
(c) in terms of the Ayache case – the claimant was shocked not disabled;
(d) the Ross case and the lack of criticism of Mr Ross for not requesting CCTV footage in the days after the collision is not relevant here because the claimant had the registration number and therefore no need for CCTV footage, and
(e) the insurer relies on the Meakes case saying Mr Coyne’s circumstances are on all fours with Meakes and due inquiry and search has not been established. The driver in both did not decamp and the claimant in both had the means to record the identity of the vehicle.
While the original submissions suggested further attempts should have been made with
7-Eleven, the insurer did not raise at the assessment conference any further attempts that should be made.
The insurer distinguishes the previous cases from this case in that the vehicle was identified and does not become de-identified because the claimant elected not to keep the details.
At the assessment conference the insurer’s representative repeated her submissions that this was like ‘an election case’, that the claimant was told by his boss to keep the photo ‘just in case’, that I should draw an inference that the claimant was told he would need it if he wanted to make a claim, that he had the photo in his possession and that he elected not to keep it.
The insurer also submitted that I should draw an adverse inference that the claimant’s boss or supervisor was not called to give evidence as to the conversation with the workers on returning to the 7-Eleven from hospital and what the claimant’s boss or supervisor told the claimant about the reasons for keeping the photograph.
Ms MacDonnell said the claimant should have preserved the photograph and should have kept the details and that a reasonable person would have done so.
Ms MacDonnell also argued that it was highly unlikely that the worker who took the photograph would have sent it if it did not show the registration number of the vehicle.
She said I would not accept that the claimant was in a state of shock noting that he had the presence of mind to get up, approach the workers for a tissue or paper towel, ring his foreman, ring his mother, and sort out the storage of his bike. He could have easily recorded the details of the vehicle that hit him.
FINDINGS
Evaluation of the evidence
The claimant gave evidence in a straightforward manner although he rushed through his story at times.
His evidence was logical and plausible. His oral evidence explained a number of gaps in the written statements particularly in relation to the order of events of the day, the accident, the phone calls, the trip to hospital, the return to 7-Eleven and the provision of the photograph.
I accept the claimant was doing his best to remember details and if his statements were deficient, it was not because he was attempting to mislead but because he was not aware of what was important to the matter that had to be determined. I therefore accept his evidence as reliable evidence as to the events of the accident.
The evidence from 7-Eleven is somewhat contradictory. The claimant’s evidence that the workers told them they would be there “all week” is strongly suggestive of them being contractors at 7-Eleven undertaking maintenance or other work there, however the information from ‘head office’ in answer to the Commission’s direction for the production of documentation and information suggests otherwise. I note the claimant’s mother, his solicitor, the insurer’s investigator and the Commission have all made enquiries of 7-Eleven in order to find the workers and ascertain if the one that took the photo still had it to no avail.
Findings of fact
I am satisfied Mr Coyne was involved in the motor accident as described by him on 16 February 2019.
I am satisfied that Mr Coyne took no steps immediately after the accident to identify the vehicle that knocked him off his bike or its driver. I accept the claimant’s evidence that the driver remained at the scene for about a minute and did not offer his details or any assistance to the claimant.
I am satisfied that Mr Coyne sustained injury in the accident (a graze and a bruise) and that he was told by the hospital there was nothing serious. I am also satisfied that Mr Coyne recovered from this after two weeks off work.
I am also satisfied, on the basis of the medical evidence, that Mr Coyne did not experience any significant symptoms in his knee for up to a year after the accident, that in June 2020 he started experiencing symptoms and that in July 2020 he was advised by Dr Tan of the potential causal relationship between the accident and his knee problem.
I accept that Mr Coyne was, at the time of the accident, a young man, not yet legally an adult who was in a shocked and confused state in the immediate aftermath of the accident. While I accept that he had the presence of mind to ring his boss and then his mother to alert them to what had happened, I do not accept the insurer’s submission that this is evidence of him having the wherewithal to make the inquiries suggested by the insurer of obtaining the details of the driver and making a note of the registration number of the car. He was young and did not know what to do and rang those closest to him, his boss and his mother to inform them of his predicament and seek their guidance. By the time he rang them, the driver had left the scene depriving the claimant of the opportunity of noting the registration number or taking a photo.
Mr Coyne was not challenged about his lack of familiarity with the greenslip insurance scheme, the benefits and compensation and claims available to him and the existence of the Nominal Defendant. I accept his evidence that he had no knowledge of his potential right to make a claim against a vehicle or the requirement to obtain the details. I also accept his mother’s evidence that she has no familiarity with the insurance and compensation scheme.
While his statements were somewhat unclear about the photograph, I accept his evidence at the assessment conference that he was not told about the photo until he returned to the
7-Eleven after he returned from the hospital. He was challenged about this but was adamant as to the chronology of events.
I also accept that he was sent a text message on his phone with a photo but that he did not upload or save the photo to his phone and that he simply switched the message to show it had been read. This is consistent with the evidence he gave that had his phone not been destroyed he would have still had the message and the photo. This is also consistent with the enquiries he made with Optus and Apple. Had he deleted the message and the photo they would not be on his phone or in cloud storage.
I accept the claimant’s unchallenged evidence that his phone was damaged a few months after this accident and that it was damaged beyond repair due to an accident and not due to any deliberate action on his part.
In one of his statements, the claimant said he ‘believed’ the photo showed the registration number of the vehicle. Neither his counsel not the solicitor for the insurer tested this belief at the assessment conference. I asked the claimant whether he had looked at the photograph he said he had not. I accept his evidence that he did not look at the photo or look closely enough at it to see what it showed. I do not accept the insurer’s submission that I should infer the photograph would have clearly shown the registration number of the vehicle because the worker would not have sent it otherwise. The unchallenged evidence from the claimant was that the worker who took the photo was not standing near him. That worker was at the back of the service station and in the distance between the worker and the claimant in my view it is likely there would have been obstructions such as the petrol bowsers. The worker could have been on a ‘cherry picker’ that the claimant said he saw. It is possible the photo may simply have shown the make and model of the vehicle or it may have been out of focus and the number plate unclear. I do not think I can assume that the photograph did contain a clear view of the number plate sufficient to enable the vehicle to be identified.
CONSIDERATION OF THE ISSUES
The requirement for ‘due inquiry and search’ has existed in the NSW motor accident schemes since 1942. The wording in the legislation has varied little since then. Past cases therefore give guidance in the approach that should be taken.
However, what has varied over time is that since 1988 there has been a mandated claims process and so s 2.30 distinguishes between the bringing of an action for damages (s 2.30(1)) and the making of a claim for damages (s 2.30(2)).
The focus of my enquiry then is whether Mr Coyne can make a claim against the Nominal Defendant in order for him to pursue his cause of action against the Nominal Defendant.
That requires me to be satisfied that the vehicle is an unidentified vehicle and that if the vehicle is unidentified, due inquiry and search has been made to establish the identity of the motor vehicle concerned.
Was the vehicle identified?
The case of Workers Compensation Nominal Insurer v Nominal Defendant concerned Mr Tallouzih, who was involved in a car accident in a car park at Birkenhead Head Point during the course of his employment. After the accident, Mr Tallouzih stopped, the other car stopped, and the two drivers exchanged details. Mr Tallouzih then went on his way. He made a workers compensation claim and was paid workers compensation benefits. In due course the workers compensation insurer (the Nominal Insurer) sought to recover those payments from the insurer of the motor vehicle pursuant to s 151Z(1)(d) of the Workers Compensation Act1987.
The recovery action was taken against the Nominal Defendant because the details of the car that hit Mr Tallouzih allegedly causing him injury were not known at the time.
At first instance Olsson DCJ found the Nominal Insurer was not entitled to the s 151Z(1)(d) indemnity and the Nominal Insurer appealed that decision. The focus of the Court of Appeal’s decision was whether the identity of the vehicle could not be established after due inquiry and search so as to satisfy s 34 of the Motor Accident Compensation Act 1999. If due inquiry and search had been established the indemnity under s 151Z(1)(d) would be enlivened.
What makes the Nominal Insurer case of interest to the matter before me is that Mr Tallouzih said he had obtained the details of the other driver and his car and had written them down onto a piece of paper and then passed the piece of paper on to his boss who had then lost it. Mr Tallouzih had found out the piece of paper had gone missing within a few days.
Justice McColl identified at [102] an argument that as Mr Tallouzih had obtained the other driver’s details at the time of the accident, the vehicle was never an unidentified vehicle, but as that argument was not raised and dealt with by the parties, she found it was unnecessary to consider it.
It is precisely that argument that the Nominal Defendant before me raises by arguing that a photograph was taken of the registration number of the vehicle that hit Mr Coyne, that photograph was given to Mr Coyne, but the photograph has been lost.
What distinguishes the claimant in the Nominal Insurer case is that Mr Tallouzih himself had written the details down and he knew within a week he was badly injured. He also knew within a few days that the details of the vehicle had been lost. He then did nothing, and the Nominal Insurer also did nothing after the workers compensation claim had been made. Neither made any further enquiries either to ascertain whether there was CCTV film of the car park or obtain that CCTV film. They did not put posters up in the car park where the accident happened or make any other enquiries to locate the car or the driver which Mr Tallouzih was able to describe at the hearing.
Justice McColl dismissed the appeal on the basis that the Nominal Insurer stood in the shoes of Mr Tallouzih and that it was obliged to undertake due inquiry and search and had failed to do so.
In terms of the timing of the inquiry, Justice McColl said:
[79] “The consequence for the present case is that the question whether the due inquiry obligation was satisfied had to be determined in a notional trial of Mr Tallouzih's proceedings against the tortfeasor. The case was conducted on the basis that that "tortfeasor" was the Nominal Defendant. Accordingly, the primary judge had to consider, as her Honour did, whether Mr Tallouzih had a cause of action against the Nominal Defendant because due inquiry had been undertaken and been unsuccessful. Contrary to Mr Kelly's submissions, the case was not to be approached as if the appellant's indemnity action under s 151Z(1)(d) was itself an action under s 34 of the MAC Act. Rather, as I have said, the Nominal Defendant's liability to Mr Tallouzih was an ingredient of the appellant's statutory right of indemnity.
[80] Accordingly, the primary judge was correct in considering the due inquiry question from the time Mr Tallouzih's cause of action accrued and not, as Mr Kelly submitted, as if the clock started running when the indemnity proceedings were commenced.”
Justice Basten did address the argument not confronted by Justice McColl in [102]. It is worthwhile setting out the relevant part of his judgment below:
[133] “The liability of the Nominal Defendant depends on three elements, namely, (a) an injury to the victim caused by the fault of the driver of a motor vehicle on a road in New South Wales, where (b) the identity of the vehicle "cannot ... be established", and (c) the inability to establish the identity of the vehicle depends on "due inquiry and search" being made. Nothing turns on the matters included in (a).
[134] The language noted in (b) and (c) raises a number of issues: three are relevant in this case. First, to say that the identity of the vehicle "cannot... be established" is to say that it is not known and cannot be discovered - the question of timing aside.
[135] Secondly, it is necessary to identify to whom the identity of the vehicle cannot be "established". Because the purpose of the section is to allow a claim for damages to proceed, the person who must be ignorant of the identity of the vehicle must be the putative plaintiff in an action for damages. That person is not the plaintiff in the statutory indemnity proceedings, nor is it the victim's employer … The identity of the vehicle is relevantly "established" if it is known to the person who was injured in the accident and has a claim for damages.
[136] Thirdly, the phrase "due inquiry and search" requires that all reasonable steps be taken in a timely manner to establish the identity of the vehicle. If those steps are taken and the identity of the vehicle is established, on one view a critical element in an entitlement to sue the Nominal Defendant is missing.
[137] There was a factual issue in the present case as to whether the worker had, as he asserted, written down the name (or details) of the other driver on a piece of paper immediately after the accident. … the worker's evidence appears to have been accepted, as recorded by a solicitor in 2008, that he "gave details of other driver to employer after the accident".
[138] The precise facts as to what the worker did are not, however, critical. It is not in dispute that the other vehicle stopped after the collision; the worker was not incapacitated by the collision; he had the ability to obtain details of the driver and identity of the other vehicle and, his vehicle having been the subject of significant damage, appreciated the need to obtain relevant details from the other driver. Whether or not it was taken, there was an immediate opportunity to make "due inquiry" without the need for any "search". If the worker did not avail himself of that opportunity, he would not have been able to proceed against the Nominal Defendant: Nominal Defendant v Meakes [2012] NSWCA 66 at [72]-[74] (Sackville AJA, McColl JA at [1] and I at [3]-[4] agreeing). The result cannot be different if he did avail himself of the opportunity, but the record of the details of the other driver were later misplaced and lost or destroyed. It may be that in other circumstances a later inquiry will be sufficient, but the statutory precondition is not expressed as operating from time to time as the justice of the case requires. Where "due inquiry" is made and is successful, the temporal question falls away.
[139] In these circumstances, the debate as to what steps the worker (or anyone else) might or should have taken after he learned that his note of the details of the other driver had been misplaced or lost are irrelevant. A key precondition for liability on the part of the Nominal Defendant was not established. Accordingly, the appeal should be dismissed with costs.
[140] If this analysis be not correct, I am content to adopt the alternative approach of McColl JA and her reasons and conclusions with respect to quantum, including for the rejection of the affidavit.”
Leeming JA agreed that the appeal should be dismissed for the reasons given by Basten JA and alternatively for the reasons given by McColl JA.
Was the identity of the vehicle known to the claimant?
Basten JA said at [135], “The identity of the vehicle is relevantly ‘established’ if it is known to the person who was injured in the accident and has a claim for damages”. The case can therefore be distinguished because while Mr Coyne possibly had the means to identify the vehicle (the photograph) Mr Coyne at no stage had established the identity of the vehicle:
(a) Mr Tallouzih had taken the details and written them down. Mr Coyne took no action of his own to record the details.
(b) Mr Coyne was given the photo and did not take the photo himself.
(c) Mr Tallouzih knew what was on the paper because he had written it. Mr Coyne did not know the registration number of the car or any other distinguishing features because he had not taken the photo and had not looked at it.
(d) Mr Coyne had done nothing to actually identify the vehicle by looking at the photo, saving it to his phone, sharing it with his mother or his boss.
Did Mr Coyne avail himself of the opportunity to make due inquiry?
In [138] Basten JA said:
“It is not in dispute that the other vehicle stopped after the collision; the worker was not incapacitated by the collision; he had the ability to obtain details of the driver and identity of the other vehicle and, his vehicle having been the subject of significant damage, appreciated the need to obtain relevant details from the other driver.”
My Coyne had the ability to obtain details of the vehicle because he had a smart phone and could have taken a photo of the vehicle’s license plate as the car drove away. However, he was incapacitated by the collision in that he was shocked by the accident and because of his age and lack of life experience did not appreciate the need to obtain the details. He was also not aware of any significant damage either to himself or the bike.
In [138] Basten JA also said: “The result cannot be different if he did avail himself of the opportunity [to make due inquiry], but the record of the details of the other driver were later misplaced and lost or destroyed.”
Mr Coyne never availed himself of the opportunity to inquire about the identity of the vehicle at the time he was hit and when the vehicle was in his presence. He did not avail himself of the opportunity to inquire about the identity of the driver after that person got out of the car and asked him if he was “OK”. He also never asked anyone for the details later in the day. He was offered the photo, initially rejected it but was then told by his boss to take the photo and the details.
Was the vehicle identified?
Basten JA also said at [138] “It may be that in other circumstances a later inquiry will be sufficient”. Justice Basten did not indicate what those other circumstances might be. The claimant is an unworldly 16 year-old, suffering from shock and the driver has not offered up his details leaving within a minute. Also of significance is that the claimant made no inquiry at the time and after receiving the photograph never looked at it.
In my view the vehicle that hit him was not ever identified by Mr Coyne. It was unidentified by Mr Coyne at the time of or shortly after the accident and is still unidentified.
Has due inquiry and search been undertaken?
General principles
The many cases from NSW and other jurisdictions state that every case is determined on its own facts and the following principles emerge:
(a) Due inquiry and search requires there to be an inquiry and search that is “reasonable in the circumstances”. What is reasonable is “as prompt and thorough as the circumstances permit” and the inquiries should, if possible, be undertaken “before the scent is cold”[19].
(b) What is “due” depends on the circumstances of the case and the circumstances of the injured person. As Dixon CJ said about the 1942 legislation:
“A man picked up by the roadside with a fractured skull who remains unconscious for weeks cannot be denied the application of the provisions because no one has been active on his behalf in looking for the motor vehicle while he lay in that condition. But a very different view might be taken of the case of a man suffering a minor injury in comparatively full possession of his physical faculties”[20].
(c) While it is the claimant who must establish that the vehicle cannot after due inquiry and search be identified, the claimant’s agents (in this case Mr Coyne’s mother or his solicitor) may undertake the enquiries or the police can make enquiries[21]. It is also possible, in cases under the MAI Act, that upon the receipt of a timely statutory benefits claim the Nominal Defendant or its agent may have a hand in the revelation of the identity of the vehicle.
(d) Inquiries that are futile or purely ritualistic do not have to be done and sometimes, no inquiry and search will satisfy the test[22].
[19] Blandford v Fox (1944) 45 SR (NSW) at 241 in respect of the 1942 legislation see Jordan CJ at 285.
[20] Cavanagh v Nominal Defendant 100 CLR 375 at 281.
[21] See Slinn v Nominal Defendant [1964] HCA 72
[22] See Harrison v Nominal Defendant (1975) 7 ALR 680 Chief Justice Barwick at [682].
Meakes, Ross and Ayache
Paragraph 60 of Meakes is relevant in terms of Mr Coyne’s state immediately after the accident:
“There are some striking circumstances in the present case suggesting that ‘due’ inquiry and search required the respondent to have taken steps at the time of the accident to obtain the registration details of the vehicle that struck him – the driver stopped, [the claimant] was injured, but not so injured to not record the number”.
However, [70] is also highly relevant:
“Fourthly, setting aside the respondent's legal training and experience, he did not suffer from any disabilities or want of information that might have had an impact on the inquiries as to the identity of the vehicle he might reasonably be expected to have made in the circumstances. Just as the content of "due inquiry and search" in a particular case might be influenced by the physical ability of an accident victim to seek information, so it might be influenced by an accident victim's disabilities. Relevant circumstances could include, for example, the inability of a person to speak English or a recent arrival's unfamiliarity with local laws and practices. It was not suggested that the respondent suffered from any relevant disability... “
In Meakes, the court found it was appropriate to treat the claimant, a lawyer, as a “reasonably informed member of the community”. Mr Coyne was, at the time of his accident under a form of disability that is he lacked legal capacity because of his age. He was not in my view a “reasonably informed member of the community”.
In Meakes, the claimant knew at the time of the accident he was seriously injured. He hurt his shoulder and limped off to a meeting. Mr Coyne did not have the same belief and was intending to go to work until advised by his foreman to get ‘checked out’. He says it was not until a year later that the true extent of his injuries became known.
In Meakes the leading judgment was given by Sackville AJA who in the penultimate paragraph of his decision on due inquiry and search said at [74]:
“In the present case, the respondent could have established the identity of the vehicle that struck him by simply recording the registration number at the scene of the accident. While there may be cases where a failure by an injured (but not incapacitated) person to record the relevant details prevents a finding that there has been "due inquiry and search" for the purposes of s 34 of the MAC Act, I do not think that this is such a case. On the evidence, the respondent was not disabled from making the obvious inquiry and his main motivation appears to have been to get to his business appointment as quickly as possible.”
Justice Sackville found that Mr Meakes had not made due inquiry and search and the other judges agreed.
The insurer argues that the case before me ‘is on all fours’ with Meakes and that the claimant’s failure to keep the photograph means he has not made ‘due inquiry’ and therefore his claim against the Nominal Defendant must fail. The difficulty with that submission is that it ignores the sentence I have emphasised in bold. As Sackville AJA said there may be cases where an injured and not incapacitated person may satisfy the due inquiry and search requirement if they have not recorded an available registration number. As will be seen, the cases of Ross and Ayache are two examples of cases that did satisfy the due inquiry and search requirement in circumstances where the claimants had the opportunity but did not record an available registration number.
Mr Adhikary submitted that Mr Coyne’s case was on all fours with Ross. That case involved an accident between a minibus and Mr Ross, a pedestrian outside Terminal 2 at Sydney Airport. Mr Ross, like Mr Meakes, was a lawyer.
The court found there were two potential opportunities for the claimant to discover the identity of the minibus that hit him. The first opportunity was when the accident happened (a window of about 60-90 seconds) and the second by making a timely request for CCTV film.
Mr Ross had been to see a doctor after the accident and had been told he had only minor injuries. Five to six days after the accident Mr Ross left Australia for six weeks and during that period his injured foot got worse. By the time he got home and instructed his lawyers, the CCTV footage from the day of the accident was no longer available.
It must be remembered that Mr Meakes had let the driver go because he was hurrying to an appointment. He was found to have the capacity to record the details of car and driver but chose (or elected) not to do so. After Mr Ross’s accident (as in Mr Coyne’s claim) the driver departed quite quickly after first enquiring about Mr Ross’s condition. Mr Ross, like Mr Coyne had not appreciated the extent of his injuries at the time and, in Mr Coyne’s case, for some considerable time.
Meagher JA said in Ross at [4]:
“In my view the primary judge did not err in concluding that the obligation to make due inquiry and search did not require the respondent to make any inquiry to establish the identity of the vehicle and its driver in that [first] period. The time for making that inquiry and search had not and did not arise before the driver departed quickly and without any warning.”
At [67]-[68] of Ross, Hoeben JA who delivered the lead judgment considered that “due” did not require the claimant to have taken steps at the time of the accident to note down the registration number of the vehicle and identify the driver because he only had a minute and a half, he was groggy and in shock and he could not see the number plate from where he was sitting.
Also of relevance to the matter before me is the following paragraph [69] in Justice Hoeben’s judgment:
“Although he was bleeding, the respondent did not immediately realise that he had suffered anything other than a superficial cut. This is why when asked by the driver whether he was okay, he answered in the affirmative. It is clear that the respondent at that time considered that any injury which he might have suffered was trivial. Given the respondent's mental state of being groggy and in shock during the one and a half minutes available to him, I am satisfied that "due inquiry or search" did not require him to record the registration number of the vehicle or the identity of the driver during that time.”
Mr Coyne said he was in shock, and I accept that he was in a form of shock in terms of surprise and upset. He was lying on the ground and could not see the number plate of the car, he thought he had only minor injuries and he had something in the order of a minute from when the driver got out of the car to enquire how he was and the driver getting back in and driving off. The driver was clearly older than he was and he could have and possibly should have offered his details.
In terms of the CCTV footage, Hoeben J said Mr Ross’s failure to enquire after the CCTV footage was not fatal in the first five days after the accident because at that stage the claimant thought he had only sustained minor injuries and in any event a reasonably informed member of the community would not be expected to know that CCTV footage would not be kept for more than 28 days.
Mr Ross succeeded in his claim against the Nominal Defendant.
In Ayache, the judge at first instance had found that the injured person was disabled by shock and pain from “making the obvious connection between the circumstances of his accident and the need to identify the vehicle that he said caused the accident”[23]. His Honour found that, because of the severity of his injuries, Mr Ayache was disabled from making the obvious enquiries.
[23] Emmet JA at [3].
The Court distinguished at [53] Meakes from Ross on the basis that Mr Meakes had the opportunity to ascertain the details but chose not to, waving the driver away. In Mr Ross’s case it was the actions of the driver by leaving within 90 seconds that took the opportunity of identifying the vehicle away.
Mr Ayache had been injured on 25 April 2012 when he fell from his motorbike after swerving to avoid another vehicle which had allegedly failed to give way to him. His injuries included a fractured clavicle and wrist. The other driver had stopped and was at the scene for about 10 minutes. During that time Mr Ayache made three phone calls (including one to 000) and received one while waiting for emergency services. He was in significant pain and the phone calls were about obtaining help and possibly securing his motor bike as he knew he was injured. The court recognised he could have recorded the details of the driver or the car on his phone but did not. The driver had attempted to speak with the claimant, but Mr Ayache said he could not understand him. He was able to describe the make, model and colour of the car and accepted the number plate was visible, but he made no attempt to take a record due to the level of his pain. A relative of the claimant arrived and saw the driver of the car, but by the time police arrived the car and its driver had left the scene. On 5 May 2012 the claimant commenced making inquiries at the scene, of the police and by placing advertisements in the newspaper.
The Court accepted that while Mr Ayache had the opportunity to record the details of the car and its driver, he was unable to do so due to the severity of his injuries and his pain.
Justice Beech-Jones at [56] said:
“… the passage from Meakes (at [74]) … confirms that the existence of an opportunity to record the details of the at fault vehicle is not determinative in the case of an injured but not incapacitated claimant. Otherwise, the facts and outcome in Meakes do not of themselves establish a rule that in all similar cases a claimant must fail.”
The Meakes decision therefore suggests that if an injured person has the opportunity to get the details of the driver and the car but fails to do so, they may not satisfy the due inquiry and search required to establish a successful claim against the Nominal Defendant. However, Sackville JA’s judgment does not lay down an absolute rule. In Ross, the plaintiff had the opportunity but could not obtain the details because the driver hastily departed the scene. In Ayache, the plaintiff’s serious injuries prevented him from availing himself of the opportunity.
I am of the view that this is another one of those cases that his Honour Justice Sackville would have had in mind. The claimant was nearly 17 years of age and was not a “reasonably informed member of the community” like Mr Meakes. His evidence is that he knew nothing about his right to claim, nothing about the CTP scheme and nothing about the Nominal Defendant. He had sustained what he thought were minor injuries. The driver had stayed for a minute and then departed. While he did have the opportunity to record the details of the car, that opportunity was fleeting, and Mr Coyne was ‘disabled’ because of his age from taking up the opportunity.
While the insurer says I should draw an inference that Mr Coyne did not keep a separate record of the details of the vehicle because he knew he was at fault, a similar inference could be drawn from the behaviour of the unidentified driver. He may not have remained at the 7-Eleven to offer assistance or provide his details because he knew he was at fault.
The insurer submitted that Mr Coyne had elected not to keep the photograph of the vehicle which might have established the identity of the vehicle. Mr Coyne at no stage chose or elected to destroy the photograph. As he said at the assessment conference, if his phone had not been destroyed, he would have had the message and the photo still on it. There is no evidence his phone was destroyed due to anything deliberately done by Mr Coyne. His phone was destroyed due to accident or misadventure and the message and photograph on it lost. Mr Coyne did not elect or choose to destroy his phone. And Mr Coyne had no knowledge of the relevance of the photograph at the time it was lost because at that time there was nothing wrong with his knee. He had no knowledge of the seriousness of his injury or the claims process at that time. In my view, in order to choose or elect, Mr Coyne would need to have some knowledge or understanding of the options or the choices and the consequences. Mr Coyne was ignorant of all of that.
What search and enquiry was undertaken?
The documentary evidence suggests Mr Coyne first consulted a doctor about the increasing pain in his knee in June 2020. The evidence from Mr Coyne at the hearing was that his knee started getting worse a year after the accident and the unchallenged evidence from Mr Coyne and his mother was that she did not encourage him to seek out treatment.
Mr Coyne first appreciated the connection between his knee symptoms and the accident in July 2020 when Dr Tan provided his opinion. Mr Coyne’s mother sought legal assistance from two firms of solicitors quite promptly, was rejected by one and first saw GMP in September 2020. She had, in the meantime, started making inquiries with 7-Eleven as did Mr Coyne. That was realistically the best hope of finding a witness or the workers including the worker that took the photograph in the hope that the photograph might identify the vehicle.
Mr Kolokossian inserted an advertisement into the newspaper and made the claim. Further enquiries were made by writing to 7-Eleven in early 2021.
When Mr Coyne discovered from his foreman that he had the photograph, he made enquiries of Optus and Apple to see if the message and the unsaved photograph could be retrieved.
When GMP learned of the existence of the photograph they too made relatively prompt enquiries of Optus.
The insurer’s inquiries have come to nought in terms of 7-Eleven.
While further inquiries to ascertain the identity of the workers could be undertaken due to the information provided in answer to the Commission’s direction, the prospects of the worker who took the photograph still having it three years after the accident are slim in my view and those enquiries would be bordering on “ritualistic” and therefore unnecessary to be undertaken.
In my view the inquiries that were made were reasonable inquiries to have made at that point it time. What is due inquiry and search depends on the circumstances of the accident, the claim, the claimant and the nature and extent of his injuries.
I have found above that while the claimant had the opportunity (albeit a limited opportunity) to obtain the details of the driver and the vehicle at the time of the accident his claim does not fail because he did not avail himself of the opportunity. He was prevented from doing so because of the short time frame the driver remained at the scene and his ignorance of his rights and obligations due to his age.
I have found that the claimant was provided with the means by which he may have been able to identify the vehicle (the photograph) in the afternoon of the day of his accident but in my view, he did not need to identify the vehicle at that stage because, like Mr Ross, he had been told he had minor injuries. By the time he knew that his injuries were not minor, over a year later, the possible means to identify the vehicle had been destroyed along with his phone. At that point in time, I am satisfied that the claimant commenced making inquiries and undertaking searches which have failed to identify the vehicle.
I do not accept the insurer’s submission that I should draw an inference that the claimant was told about the claims process by his boss when he advised Mr Coyne to keep the photo. I also do not accept that I should draw an adverse inference from the fact the claimant’s boss was not called to give evidence or that there is no statement from him. Firstly, I note that the insurer had the details of the claimant’s boss and workplace and had instructed an investigator to make enquiries and obtain a statement from the legally represented claimant. The insurer could have asked its investigator to obtain a statement from the claimant’s employer. Secondly, the evidence about the conversation with the workers and Mr Hennan’s advice to keep the photo only emerged at the assessment conference. Thirdly, even if Mr Hennan did give the claimant advice about keeping the photo and gave him some information about making a claim, that was what Mr Coyne did. He did not actively delete the photo and it was 12 months before he needed to make a claim.
What Mr Coyne did not do in those 12 months was look at the photo, make a copy of it, give the details to someone or write the details somewhere just in case he needed them and before the photo was destroyed. In my view that is beyond the actions of what might be contemplated by a “reasonably informed member of the community” or a 16 to 17-year-old young man.
CONCLUSION
I am satisfied that the identity of the vehicle that was involved in the accident with Mr Coyne on 19 February 2019 cannot, after due inquiry and search be established. I am therefore satisfied that Mr Coyne can make his claim against the Nominal Defendant and pursue that claim in accordance with s 2.30 of the MAI Act.
At the assessment conference, Ms MacDonnell agreed that the claimant’s costs should be assessed on the following basis:
Item
Fee
GST
Total
Miscellaneous claims assessment (regulated 16 monetary units)
$1,710.00
$171.00
$1,881.00
Representation at the assessment conference hearing (regulated 30 monetary units)
$3,207.00
$320.70
$3,527.70
Dr Tan notes (unregulated)
$34.55
$3.45
$38.00
Dr Tan report (regulated up to 12 monetary units)
$804.55
$80.45
$885.00
Miranda medical centre notes (unregulated)
$38.00
$3.80
$41.80
Rural Press public notice (unregulated)
$267.98
$26.80
$294.78
Sutherland hospital notes (unregulated)
$30.00
$3.00
$33.00
TOTAL
$6,092.08
$609.20
$6,701.28
0
6
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