Joseph v Platcher and Burns v The Nominal Defendant

The Supreme Court of New South Wales Court of Appeal considered two separate appeals, *Joseph v Platcher* and *Burns v The Nominal Defendant*, which were heard together. Both appeals concerned the interpretation and application of section 79 of the *Motor Accidents Act 1988* (NSW) (the Act), which deals with the liability of owners of unregistered or uninsured motor vehicles. In *Joseph v Platcher*, the appellant was injured in a motor vehicle accident while a passenger in a vehicle owned by the first respondent and driven by the second respondent. The vehicle was unregistered at the time of the accident. In *Burns v The Nominal Defendant*, the appellant was injured in a motor vehicle accident involving an unidentified vehicle, and the Nominal Defendant was substituted as the respondent under the Act.

The central legal issue before the Court of Appeal was whether section 79 of the *Motor Accidents Act 1988* (NSW) imposed a form of strict liability on the owner of an unregistered motor vehicle for injuries sustained by a passenger, or whether it required proof of negligence on the part of the owner. The Court also had to consider the scope of the Nominal Defendant's liability under the Act in circumstances where the identity of the vehicle's owner was unknown.

The Court of Appeal, in a joint judgment, held that section 79 of the *Motor Accidents Act 1988* (NSW) did not impose strict liability on the owner of an unregistered vehicle. Instead, it required proof of negligence on the part of the owner, similar to the common law duty of care owed by an owner to a passenger. The Court reasoned that the purpose of the section was to ensure that owners of unregistered vehicles could not escape liability by failing to register their vehicles, but it did not create a new cause of action independent of negligence. In *Burns v The Nominal Defendant*, the Court affirmed that the Nominal Defendant's liability was contingent upon the establishment of a cause of action against the owner or driver of the unidentified vehicle, which would typically involve proving negligence.

Consequently, the appeal in *Joseph v Platcher* was dismissed, as the appellant had failed to establish negligence on the part of the owner of the unregistered vehicle. The appeal in *Burns v The Nominal Defendant* was allowed, and the matter was remitted for a new trial on the issue of liability, with the Court clarifying the principles to be applied in determining the negligence of the unidentified driver.