Ford v Nominal Defendant - [2022] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Ford v Nominal Defendant [2022] QSC 179

PARTIES:

TRENT ANTHONY FORD

(plaintiff)

v
NOMINAL DEFENDANT

(defendant)

FILE NO/S:

BS 317 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 23 August 2022

JUDGE:

Martin SJA

ORDER:

1. The claim is dismissed.

2. I will hear the parties on costs.

CATCHWORDS:

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – DUE INQUIRY AND SEARCH – where the plaintiff suffered injuries as a result of a motor accident – where the plaintiff is unable to establish the identity of the responsible motor vehicle or driver – where the plaintiff has brought a claim against the Nominal Defendant – whether ‘proper inquiry and search’ have been made by the plaintiff and failed to establish the identity of the motor vehicle

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – USE OF ADJECTIVE OR ADVERB – where the Motor Accident Insurance Act 1994 (MAIA) requires ‘proper inquiry and search’ of a plaintiff before a claim can be made against the Nominal Defendant – where the predecessor Motor Vehicles Insurance Act 1936 referred to ‘due inquiry and search’ – whether the change from ‘due’ to ‘proper’ means that a different and higher standard is to be applied under the MAIA

Acts Interpretation Act 1954, s 14C
Motor Accidents Compensation Act 1999 (NSW), s 34
Motor Accident Insurance Act 1994, s 31
Motor Vehicles Insurance Act 1936, s 4F(3)

Cavanagh v Nominal Defendant (1958) 100 CLR 375
Murray v Nominal Defendant [2014] QDC 144
Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66
Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542; [2013] NSWCA 301

COUNSEL:

CC Heyworth-Smith QC for the plaintiff
GW Diehm QC and MG Zerner for the defendant

SOLICITORS:

Travis Schultz & Partners for the plaintiff
Jensen McConaghy Lawyers for the defendant

On 11 March 2019, Trent Ford was riding a Honda motorcycle inbound along Redland Bay Road in Capalaba. He had finished his shift as a postal delivery officer and was returning to the Australia Post Delivery Centre on Dollery Road.
At about 5.15pm, he was travelling up an incline on Redland Bay Road when a light truck passed him on his right and then began to enter the lane in front of him. As that was taking place, a small piece of timber slid off the tray of the truck and onto the roadway in front of Mr Ford. He swerved to avoid the timber. The front wheel of the motorcycle missed the timber, but the back wheel did not. As a result, the plaintiff was jarred and, as he later found out, he was injured.
The defendant concedes that the incident described by the plaintiff did occur and that “the accident [was] occasioned by the negligence of the ‘unknown person’”.
The issue…

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 Ford v Nominal Defendant

Details

AGLC: Ford v Nominal Defendant [2022] QSC 179
Case: [2022] QSC 179
Decision Date: 31 August 2022

CaseChat Overview and Summary

In the case of Ford v Nominal Defendant, the plaintiff, Mr Ford, sought compensation for injuries sustained in a motor accident involving an unidentified vehicle. The defendant, referred to as the Nominal Defendant, raised the issue of whether Mr Ford had conducted a proper inquiry and search to identify the vehicle or driver responsible for the accident. The matter was heard in a relevant court, which was required to decide whether Mr Ford's actions constituted a proper inquiry and search under the Motor Accident Insurance Act 1994.

The primary legal issue before the court was whether Mr Ford had fulfilled the statutory requirement of undertaking a proper inquiry and search before making a claim against the Nominal Defendant. This involved interpreting the change from 'due' to 'proper' in the Act and determining if it meant a different and higher standard was to be applied. The court also needed to assess whether Mr Ford's failure to make inquiries in Sevenoaks Street within a reasonable time after the incident constituted a failure to conduct a proper inquiry and search.

The court found that Mr Ford had not conducted a proper inquiry and search as required by the Act. It noted that while placing notices in letter boxes in Sevenoaks Street could have been a reasonable step, Mr Ford had not taken such action. The court emphasised that inquiries should be made 'before the scent was cold', meaning before the passage of time might dull people's recollections. As a result, the plaintiff's claim was dismissed. The court concluded that the plaintiff had not established that he had conducted a proper inquiry and search. It also noted that the parties would be heard on the issue of costs.

The court's final orders were that the claim was dismissed and that the parties would be heard on the issue of costs. The decision underscored the importance of timely and reasonable inquiries in cases involving unidentified vehicles, highlighting the plaintiff's responsibility to conduct a proper inquiry and search before making a claim against a Nominal Defendant.

Orders

Orders of the court

1. The claim is dismissed.

2. I will hear the parties on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second matter suggested by the Nominal Defendant was for Mr Ford to have undertaken some form of reconnaissance in Sevenoaks Street and nearby areas. This was prompted by Mr Ford having seen the vehicle on Redland Bay Road at a point where it could have turned into Sevenoaks Street or have undertaken a U-turn. That would have been appropriate within a short time after the incident. But, given that there was no unusual activity which might have alerted the residents of Sevenoaks Street, the inquiries might not have borne fruit. That is not to say, though, that appropriate inquiries taken within a short period would not have constituted proper inquiry and search. The placing of notices seeking information in letter boxes in that street would, for example, have been a reasonable step to take in the circumstances.[9] Mr Ford failed in that respect. To go back some months later, though, would have been the triumph of enthusiasm over reason. As McColl JA observed in Workers Compensation Nominal Insurer v Nominal Defendant, the period when inquiry should have been made is “before the scent was cold”, that is, before it might reasonably be expected that the passage of time would have dulled people’s recollections.[10] [9]See, for example, Workers Compensation Nominal Insurer v Nominal Defendant at [106].[10]At [109].Conclusion The plaintiff has not established that he conducted a proper inquiry and search. The claim is dismissed. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ford v Nominal Defendant [2022] QSC 179
PARTIES:	TRENT ANTHONY FORD (plaintiff) v NOMINAL DEFENDANT (defendant)
FILE NO/S:	BS 317 of 2021
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	22 and 23 August 2022
JUDGE:	Martin SJA
ORDER:	1. The claim is dismissed. 2. I will hear the parties on costs.
CATCHWORDS:	INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – DUE INQUIRY AND SEARCH – where the plaintiff suffered injuries as a result of a motor accident – where the plaintiff is unable to establish the identity of the responsible motor vehicle or driver – where the plaintiff has brought a claim against the Nominal Defendant – whether ‘proper inquiry and search’ have been made by the plaintiff and failed to establish the identity of the motor vehicle STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – USE OF ADJECTIVE OR ADVERB – where the Motor Accident Insurance Act 1994 (MAIA) requires ‘proper inquiry and search’ of a plaintiff before a claim can be made against the Nominal Defendant – where the predecessor Motor Vehicles Insurance Act 1936 referred to ‘due inquiry and search’ – whether the change from ‘due’ to ‘proper’ means that a different and higher standard is to be applied under the MAIA Acts Interpretation Act 1954, s 14C Motor Accidents Compensation Act 1999 (NSW), s 34 Motor Accident Insurance Act 1994, s 31 Motor Vehicles Insurance Act 1936, s 4F(3) Cavanagh v Nominal Defendant (1958) 100 CLR 375 Murray v Nominal Defendant [2014] QDC 144 Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66 Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542; [2013] NSWCA 301
COUNSEL:	CC Heyworth-Smith QC for the plaintiff GW Diehm QC and MG Zerner for the defendant
SOLICITORS:	Travis Schultz & Partners for the plaintiff Jensen McConaghy Lawyers for the defendant