Coyne v The Nominal Defendant - [2022] NSWPIC 54

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 17^th 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…

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.

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Details

Case: [2022] NSWPIC 54
Decision Date: 8 February 2022

CaseChat Overview and Summary

In the case of Coyne v The Nominal Defendant, the plaintiff sought to bring a common law claim against the Nominal Defendant under section 2.30 of the Motor Accident Injuries Act 2017. The dispute arose following a motor accident in which the claimant, a 16-year-old at the time, suffered injuries. The central issue was whether the claimant had undertaken a due inquiry and search to ascertain the identity of the vehicle involved in the accident, given that he had been provided with a photograph at the scene which may have depicted the vehicle, but subsequently did not save the photo and his phone was later destroyed.

The court was required to determine whether the claimant had made sufficient efforts to identify the vehicle despite the challenges posed by his age and the injuries he sustained. The court examined the claimant's actions in the immediate aftermath of the accident and 12 months later when more serious symptoms emerged. It considered the advice he received at the accident scene, which indicated that he had only minor injuries, and how this might have influenced his actions.

In reaching its decision, the court distinguished the case from The Workers Compensation Nominal Insurer v The Nominal Defendant, finding that the claimant's age and the nature of his injuries significantly limited his ability to conduct a thorough search. The court also considered the cases of Nominal Defendant v Meakes, Nominal Defendant v Ross, and Nominal Defendant v Ayache, which provided guidance on the adequacy of searches and inquiries. Ultimately, the court concluded that the claimant's efforts to identify the vehicle were reasonable given the circumstances, and therefore allowed the claim to proceed against the Nominal Defendant.

Orders