Ford v Nominal Defendant

Case [2023] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

Ford v Nominal Defendant [2023] QCA 83

PARTIES:

TRENT ANTHONY FORD
(appellant)
v
NOMINAL DEFENDANT
(respondent)

FILE NO/S:

Appeal No 11582 of 2022
SC No 317 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 179 (Martin SJA)

DELIVERED ON:

28 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2023

JUDGES:

Morrison JA and Gotterson AJA and Applegarth J

ORDERS:

1.   Appeal allowed.

2.   The orders dated 31 August 2022 be set aside.

3.   The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.

4.   The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.

5.   The respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – DUE INQUIRY AND SEARCH – where the appellant suffered injuries as a result of a motor accident – where the appellant was unable to establish the identity of the vehicle or driver – where the primary judge found that by failing to attempt to obtain the number-plate details immediately after the accident, the appellant failed to engage in a “proper inquiry and search” – where the appellant contends that “proper inquiry and search” did not require the appellant to pursue the vehicle immediately after the incident in circumstances where he did not know he was injured – where the respondent contends that “proper inquiry and search” required the appellant to return to the incident site on a subsequent evening to look for the vehicle – where the respondent contends that “proper inquiry and search” required the appellant to look for the unidentified vehicle in the local road network – whether the appellant, in the circumstances in which he was placed, had made a “proper inquiry and search” so as to engage the presumption in s 31(2) of the Motor Accident Insurance Act1994

Limitation of Actions Act 1974 (Qld)
Motor Accident Insurance Act1994 (Qld), s 31(2)

Cavanagh v Nominal Defendant (1958) 100 CLR 375; [1958] HCA 57, cited
Harrison v Nominal Defendant (1975) 50 ALJR 330; (1975) 7 ALR 680, cited
Mason v Toowoomba City Council [2005] 1 Qd R 600; [2005] QCA 46, followed
Nominal Defendant v Ayache (2014) 67 MVR 473; [2014] NSWCA 253, cited
Nominal Defendant v Browne (2013) 64 MVR 214; [2013] NSWCA 197, cited
Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66, distinguished
Nominal Defendant v Ross (2014) 87 NSWLR 230; [2014] NSWCA 212, cited
Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259; [1996] NSWSC 36, cited
Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542; [2013] NSWCA 301, cited

COUNSEL:

C C Heyworth-Smith KC, with M A Eade, for the appellant

Continue reading Ford v Nominal Defendant

Sign in free to access the full text

Details
AGLC
Ford v Nominal Defendant [2023] QCA 83
Case
[2023] QCA 83
Decision Date

CaseChat Overview and Summary

In the matter of Ford v Nominal Defendant, the appellant, who suffered injuries from a motor accident involving an unidentified vehicle, appealed against a decision that he had failed to conduct a proper inquiry and search to establish the identity of the vehicle or driver. The primary judge held that the appellant’s failure to attempt to obtain the number-plate details immediately after the accident constituted a failure to engage in a “proper inquiry and search.” The appellant argued that a “proper inquiry and search” did not require him to pursue the vehicle immediately after the incident as he was unaware of his injuries. The respondent contended that “proper inquiry and search” required the appellant to return to the incident site on a subsequent evening or to look for the unidentified vehicle in the local road network. The court had to determine whether the appellant had made a “proper inquiry and search” in the circumstances in which he was placed.

The court considered whether the appellant was required to pursue the vehicle immediately after the incident or to return to the scene at a later time to attempt to identify the vehicle. The court noted that the appellant had not thought about giving chase during the 20 seconds after the incident and was in a state of shock. The court held that the suggested search of the local road network on a subsequent occasion or observing at the scene of the incident on a subsequent evening would be unlikely to be productive. Therefore, “proper inquiry and search” did not require those steps to be carried out.

The court found that the appellant had established that “proper inquiry and search” did not require him to undertake the steps suggested by the respondent. The appeal was allowed, and the orders dated 31 August 2022 were set aside. The appellant’s claim was allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed. The respondent was ordered to pay the appellant’s costs of and incidental to proceeding BS317/21 and the costs of the appeal. Submissions may need to be made at an appropriate time as to whether the costs at first instance and on appeal should be on the indemnity basis, as sought in the Notice of Appeal.

ORDERS:
1. Appeal allowed.
2. The orders dated 31 August 2022 be set aside.
3. The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.
4. The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.
5. The respondent pay the appellant’s costs of the appeal. Submissions may need to be made at an appropriate time as to whether the costs at first instance and on appeal should be on the indemnity basis, as sought in the Notice of Appeal.

Orders

Orders of the court

1. Appeal allowed.

2. The orders dated 31 August 2022 be set aside.

3. The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.

4. The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.

5. The respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

A crucial issue is whether, in the circumstances in which the appellant found himself for the 20 seconds or so after the incident, he should have pursued the vehicle in an attempt to read and remember its number-plate.The facts On 11 March 2019 at around 5.15 pm the appellant was riding a 100 cc motorcycle to his depot at the end of his shift. He was in the left lane of the dual carriageway of Redland Bay Road, heading in a north-westerly direction. The speed limit on that arterial road was 80 kph. The appellant estimated that his low-powered motorcycle had been travelling at about 60 or 70 kph at the time of the incident. The utility passed him and then entered the left lane of the dual carriageway. Just as it entered the left lane, a large piece of wood fell from the back of its tray. By quick action, the appellant managed to avoid the wood with his front wheel, but the back wheel ran over it. The back of the motorcycle did a “bunny hop”. The incident jarred the appellant and he was in a state of shock. As he said in his evidence:[1]“I was pretty thankful to not be on the bitumen. I was – that was honestly – all I was thinking about was I’m not hurt, I’m not on the ground, get back to the office.” [1]RB172/lines 22-25. The tray of the large utility or small truck from which the wood fell contained the type of equipment that concreters use and the dirty piece of timber resembled the type of timber that is used to box concrete. After the timber fell from it, the vehicle continued along Redland Bay Road, moved to the right lane, then went into a turning lane that would allow its driver either to turn right into Sevenoaks Street or do a U-turn. This all occurred within about 20 seconds after the incident. The appellant did not think about giving chase during those 20 seconds and before the vehicle turned in one of those directions. He stayed in the left lane of Redland Bay Road, felt unhurt, and could not believe his luck at avoiding injury. He said that he was just on “auto-pilot”[2] on his way back to the nearby Australia Post Delivery Centre.[2]RB172/line 30. Back at the centre he parked his bike, walked into the office and told the administrator:“I can’t believe I’m not hurt. I’m not on the road.”[3][3]RB173/lines 22-23. It was only at this point that he had “time to digest what just happened.” He was “sort of still gobsmacked that [he] wasn’t hurt”.[4][4]RB173/lines 22, 33. At the time of the incident the appellant had used his left foot to lean the motorcycle to his left to avoid the wood. The appellant felt a jolt and “a degree of pain” to his back and ankle at the time the back wheel went over the wood.[5] He believed at that time that he was uninjured.[5]RB183/line 4. By the time he returned home that night his left ankle and back felt sore.[6] The next morning he felt worse and struggled to get out of bed, but he went to work and saw his manager, who referred him to an employer-approved doctor. That doctor told the appellant to take anti-inflammatory medication and some Panadol.[6]RB174/line 24.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The suggested search of the local road network on a subsequent occasion or occasions was unlikely to be productive. As a result, and as with the respondent’s alternative of observing at the scene of the incident on a subsequent evening, “proper inquiry and search” did not require those steps to be carried out.Conclusion The appellant has established that “proper inquiry and search” did not require him to undertake the steps suggested by the respondent. I would order:1. Appeal allowed.2. The orders dated 31 August 2022 be set aside.3. The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.4. The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.5. The respondent pay the appellant’s costs of the appeal. Submissions may need to be made at an appropriate time as to whether the costs at first instance and on appeal should be on the indemnity basis, as sought in the Notice of Appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.