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 2021DIVISION:
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, citedCOUNSEL:
C C Heyworth-Smith KC, with M A Eade, for the appellant
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- AGLC
- Ford v Nominal Defendant [2023] QCA 83
- Case
- [2023] QCA 83
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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