McGirr v Nominal Defendant

[2006] NSWLC 38

Local Court of New South Wales

CITATION:	McGirr v Nominal Defendant [2006] NSWLC 38
JURISDICTION:	Civil
PARTIES:	Stephen McGirr t/a Oak Flats Muffler Men Nominal Defendant
FILE NUMBER:	93941/04
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	09/25/2006
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Workers compensation - Indemnification of employer by third party responsible for injury to worker - Whether journey on which worker injured a periodic journey - Whether unidentified driver breached duty of care to injured worker - Whether unidentified driver caused injury - Whether contributory negligence on part of injured worker - Whether plaintiff carried out due inquiry and search for unidentified vehicle
LEGISLATION CITED:	Motor Accidents Act 1988 Workers Compensation Act 1987 Workplace Injury and Management and Workers Compensation Act 1998
CASES CITED:	Babcock Australia v Padfoot (1993) 9 NSWCCR 525 Harrison v Nominal Defendant (1975) 50 ALJR 680 Karamalis v Commissioner of SA Railways (1977) 15 ALR 629 Malcolm v Urban Transit Authority (1994) 20 MVR 87 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Nader v Urban Transit Authority of NSW [1985] 2 NSWLR 501 State of NSW v Nominal Defendant [2004] NSWCA 328 Sungravure Pty Ltd v Meani (1963-4) 110 CLR 24 Vetter v Lake Macquarie City Council (2001) 201 CLR 439 Young v Commissioner for Railways [1960] WCR 84
REPRESENTATION:	Mr M J Jenkins - Counsel Turkslegal Lawyers - Solicitors Mr A P Capelin - Counsel TL Lawyers - Solicitors
ORDERS:	Verdict for the plaintiff in the sum of $16,897.77 and judgment accordingly. I reserve the question of interest and costs with parties to have liberty to apply.

REASONS for DECISION

1. On Friday 27 March 1998, Mr Daniel Short, an employee of the plaintiff, Mr Stephen McGirr, having fallen from his bicycle in a successful attempt to avoid a collision with a white motor car driven by an unidentified person which had crossed his path, travelling from his right to his left through an intersection, was injured in Central Ave, Oak Flats.

2. He sustained serious injuries to his left shoulder, neck, left forearm and back. Following his injury, he was paid workers’compensation by Mr McGirr. Mr McGirr now brings this action pursuant to Section 151Z(1)(d) of the Workers Compensation Act 1987 claiming a sum of $16,897.77 plus interest pursuant to s.100 of the Civil Procedure Act 2005.

3. Section 151Z(1)(d) provides for statutory indemnification of employers liable to pay workers’ compensation to their injured workers when those compensable are as a result of the negligence or some other tortious misconduct of a third party provided that damages would be payable to the injured worker if he or she chose to sue the tortfeasor.

4. The four elements of the action under s.151Z(1)(d) are, first, that the plaintiff must establish that the worker suffered a work-related injury for which workers’ compensation was paid; second, the plaintiff must prove the amount of compensation paid to the worker; third, the plaintiff must prove the liability of a third party to pay damages to the worker in respect of the injury; finally, the plaintiff must prove quantum of damages.

5. This case raises a number of issues for resolution. First, was Mr Short on a periodic journey from his place of work to his home at the time of his accident? Second, did the driver of the white car breach is duty of care to Mr Short? Third, did the driver of the white car cause the accident? Fourth, was there contributory negligence on Mr Short’s part in the manner in which he rode his bicycle shortly before the accident? Fifth, did the plaintiff undertake “due inquiry and search” to identify the driver of the white car?

Was Mr Short on a periodic journey at the time of his accident?

6. A personal injury suffered by a worker is compensable only if it is suffered in the course of his or her employment. See Section 9(1) Workers Compensation Act 1987 and s.4 Workplace Injury and Management and Workers Compensation Act 1998.; Section 10(1) and (3) of the 1987 Act provide that a personal injury suffered by a worker on a journey which is a “daily or other periodic journey between the worker’s place of abode and place of employment” is compensable by workers’ compensation. “Place of abode” for the purposes of the Act is defined as “the place to which the worker is journeying with the intention of there spending the night following a journey”. In this case the relevant “place of abode”, the place at which Mr Short was intending to spend the night after leaving work, was his home. Unless, therefore, Mr Short was on his way home from work when he came off his bicycle on 27 March 1998, his injuries were not compensable by workers’ compensation and the plaintiff may not recover the sums paid in workers’ compensation from the defendant.

7. A worker is entitled to interrupt his or her periodic journey or to deviate from the most direct route provided that in doing so he or she does not materially increase the ordinary risks of the journey and the journey maintains the character of a periodic journey Workers Compensation Act s.10(2).. In Vetter v Lake Macquarie City Council, the High Court summed up the general principles on this point (2001) 201 CLR 439 at 452 [29].:

There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires.

8. A worker who materially increases the risk of his or her homeward journey by serious and wilful misconduct, on the other hand, will not be compensated for an injury suffered on a periodic journey. So, for example, a person who indulges in a “pub crawl” and has a car crash on the way home would not be compensated for his or her injury. See, for example, Babcock Australia v Proudfoot (1993) 9 NSWCCR 525.

9. The argument here is about whether Mr Short’s journey along Central avenue had the character of a periodic journey at all. The defendant argues that it did not because of a combination of factors. Mr Short was incontestably riding away from his place of work towards his brother’s house in Central Ave and in the general direction of his mother’s house in another street in Oak Flats. His journey took him in the opposite direction (more or less) to his home. He was by no means travelling a direct route and he was intent upon paying two social visits on the way. He was perhaps going to take several hours before he ultimately arrived home.

10. Mr Short’s evidence was that he ordinarily finished work on Fridays at midday then, as his routine, cycled home via his mother’s house and sometimes his brother’s house. On the occasions he visited his brother he would often work on an old Holden car owned by his brother. On such visits, he would also often see his father who shared the same address as his brother but had separate living quarters.

11. He testified that, when he was working on the car with his brother, they might take hours depending on what kind of repairs were needed at the time. His best (though vague) recollection was that on 27 March 1998 he had intended to work on the tappets and that such a job ordinarily took about 40 minutes. His visits to his brother could be extended by taking a cup of tea or perhaps a beer with his brother. When he visited his brother, the length of time taken over the journey could also be extended by a further interruption, a visit to his mother whose house was about one kilometre from his brother’s.

12. The defendant relies on the decision of the High Court in Young v Commissioner for Railways [1960] WCR 84. for the proposition that a very lengthy interruption to a journey home from work may alter the character of the journey from one undertaken in the course of employment to one for an entirely different purpose unrelated to the worker’s employment.

13. Whether a very lengthy interruption to a journey from work to the worker’s place of abode alters the character of the journey per se I very much doubt. Vetter implicitly contradicts such a proposition. In any event, however, Young should be distinguished from the present case. In Young, the widow of a worker who was killed in a car accident several hours after leaving work but before he got home was denied workers’ compensation by the High Court because she had failed to discharge her onus of proving that the journey on which the worker was killed was a periodic journey. The worker had left work early, telling workmates that he “had business to attend to”, and disappeared for nearly three hours before turning up at a hotel where he interrupted his journey home. It was on the way home from the hotel that he was killed.

14. The High Court accepted that the worker’s ultimate destination was his home but, because of the unexplained hours when he was “attending to business”, concluded that, as a result of his unexplained wanderings, his widow had not established that he was on a periodic journey at the time he was killed. The Court did not make a positive finding that he was not but merely held that his widow had not discharged her burden of proof that he was.

15. The situation was different in Vetter. There the evidence established that the worker had deviated from a direct route home from work by 19 kilometres, that she had a routine of visiting her grandmother once a fortnight on the way home from work, that she was severely injured en route from her grandmother’s house to her home. The primary judge held that she had been on a periodic journey at the time she was injured and the High Court found that judge had made no error on that point.

16. In my view, this case is very similar to that found in Vetter and differs significantly from Young in which the clandestine nature of the worker’s meanderings before going whom that caused the evidentiary difficulty for the plaintiff. There is no mystery at all about where Mr Short was going and had been on the day he was injured, nor were his purposes inscrutable. Mr Short had a routine of visiting his relatives on the way home from work on a Friday afternoon. He was availing himself of his half-day off to go home via his mother’s house and, if his brother was home, his brother’s as well. That he socialised with his brother by working on a car does not alter the essential character of the relationship or visits. Some people will socialise in cafés, others in workshops. Some people do business in restaurants and lounge rooms, others enjoy one another’s company tinkering in garages and sheds. His purposes were primarily social, not business-like, when he paid those visits. But he would also have been entitled to make a business diversion, such as visiting a bank or a supermarket. Such interruptions would not have altered the essential nature of his journey.

17. Even if the defendant is correct in contending that a lengthy interruption of a periodic journey is sufficient to deprive it of the essential characteristic that brings it within the scope of the Workers’ Compensation Act, there was no such interruption in this case; his journey to his place of abode had just commenced. The only interruption to it was wrought by the accident which occurred before he could arrive at his brother’s house. No time was lost on the journey before the accident. The best evidence of Mr Short’s intentions is that he may have stayed for less than an hour adjusting the tappets on his brother’s car and added a further period for a cup of tea or a glass of beer. Insofar as it may be relevant – and I think it is not -- he does not appear to have intended a lengthy sojourn with his brother.

18. Nor, in my view, is the number of interruptions is relevant to the question either unless they add materially to the risk of injury. In this case no question of added risk has arisen. Quite fairly, the defendant implicitly concedes that neither the deviation nor the interruption of the journey added any material risks to the journey itself.

19. I am satisfied on the balance of probabilities that Mr Short was on a periodic journey at the time of his injury.

Did the driver of the white car breach is duty of care to Mr Short?

20. The evidence shows that Mr Short was on a push-bike travelling at a considerable speed down an incline towards the intersection at which he had his accident. Evidence was given by Ms Jeanne Mulder that the white car involved went through a Give Way sign to Mr Short‘s right without stopping and travelled too fast to avoid the collision.

21. Mr Short’s first recollection is of seeing the car actually in the intersection apparently slowing or coming to a stop as he approached. He assumed the car was going to stop to let him pass but found, after he had looked away to his left to view that side of the intersection and back to his front, that the car had, in fact, proceeded into his path and was on a collision course. He took evasive action, braked heavily and, on his account, hit a pothole which resulted in him being thrown over the handlebars of his bike onto his left side.

22. In some respects Ms Mulder’s evidence is highly consistent with the account given by Mr Short. She asserts she saw the white car almost collide with Mr Short and her view was that the car was travelling too fast in the circumstances. She, however, said nothing about the speed at which Mr Short was travelling or about his manner of riding.

23. Ms Mulder’s evidence must be treated with considerable caution. She gave her statement more than eight years after the accident; the first time she was asked to give an account was in April 2006. She is gravely ill and has a past history of psychiatric illness the nature of which is unidentified. The investigator to whom she first spoke considered her recollections to be vague. The account, such as it was, that she gave to him differs in significant respects from the version of events recounted in the statement tendered in evidence. The event was all over very quickly and she told the investigator that she had been watching television at the time she heard a screech of brakes. The time available for her to assess the situation out at the intersection was therefore very short. Due to her illness, her evidence could not be tested in cross-examination. I would not, therefore, place great weight on her evidence despite it corroborating Mr Short’s account in significant respects.

24. Other evidence, however, must be taken into account. Central Ave is a long, straight road and the photographs tendered in evidence demonstrate that the driver of the white car would have had a very clear and unobstructed view to the south, the direction from which Mr Short was travelling. At the time of the accident it was daytime and the weather was fine according to Mr Short’s uncontradicted recollection. Although Mr Short may have been travelling at a speed of about 40-50 km/h – very fast for a pushbike – this is not a high speed for a motor vehicle and certainly well below the speed limit which was 60 km/h at the time.

25. From Mr Short’s account alone, the car seemed to slow, as if the driver had seen him and then accelerated into his path. This suggests either that the driver somehow missed seeing the oncoming bicycle or misjudged the speed of the bicycle and decided to drive on thinking that it was safe to do so. It is perhaps, because of their small size and the general expectation that pushbikes travel slowly on roads, more difficult to accurately gauge the speeds of oncoming bicycles than the speeds of oncoming motor vehicles. Pushbikes are also generally harder to see on the roads than motor vehicles because they are smaller and often travelling to the sides of roads where they may be camouflaged by the background to a greater extent than if they are travelling in the centre of carriageways.

26. What cannot be a matter of speculation is that the driver of the motor vehicle simply failed to give way to the oncoming bicycle. As Mr Short was approaching the intersection the car had proceeded through a Give Way sign, perhaps slowed in the vicinity of a median strip dividing Central Ave, but had then pulled out in front of Mr Short.

27. Whatever the case, I am satisfied on the balance of probabilities that the driver of the motor vehicle either failed to keep a proper lookout or failed to apply his or her brakes in time or both, and failed to give way, thus breaching his or her duty of care to Mr Short.

Did the driver of the white car cause the accident?

28. To be successful in his claim, the plaintiff must, of course, not only establish a breach of a duty of care owed to Mr Short but prove on the balance of probabilities a causal connection between the breach and the injuries suffered by Mr Short. The defendant contends that the plaintiff has not proven causation on the part of the driver of the white car.

29. It was said by McHugh JA in Nader v Urban Transit Authority of NSW that “[l]iablity arises… upon the plaintiff merely showing that the defendant’s negligence was a material contributing cause.” [1985] 2 NSWLR 501 at 530. The defendant’s breach of duty of care does not have to be the only or even the main cause of the loss or damage suffered by plaintiff. In March v E&MH Stamare Pty Ltd Mason CJ said that “at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce damage.” (1991) 171 CLR 506.

30. Commentators and courts have repeatedly pointed out the conceptual shortcomings of the “but for” test of causation but it very often provides “an adequate, if somewhat crude, mechanism for determining whether or not negligent conduct was a necessary condition of the occurrence of the harm.” Dominic Villa Annotated Civil Liability Act 2002 (NSW) Law Book Co, Sydney 2002 p.47. In this kind of case it appears to be a particular apt and useful tool of analysing causation.

31. Mr Short’s evidence is that when he first saw the car he had thought it was slowing or stopping to enable him to pass. He then checked the intersection to his left. On looking back to his front he found the car had pulled out in front of him only metres away. He braked. He cannot now remember swerving but a police report tendered in evidence suggest that he did so and that report is corroborated by Ms Mulder’s evidence. It therefore seems likely that he both swerved and braked simultaneously. His attention at that point was, naturally, concentrated entirely upon the car and finding a direction around the car to avoid a collision. As he swerved and braked, he hit a pothole. This seems to have caused his front wheel to turn and he was flung from the bicycle onto the road.

32. The bicycle he was riding at the time was a mountain bike which had suspension. Mr Short is a very experienced and bold rider. He gave evidence that, ordinarily, a mountain bike, because of its suspension and sturdy construction, usually crosses potholes without throwing the rider off.

33. It is reasonable therefore to infer that a combination of sudden and probably hard braking, speed, a rapid change of direction, the angle at which he hit the pothole and the size and depth of the pothole itself (about which there was no evidence except that it was sufficiently big or deep or both in the circumstances to bring Mr Short to grief) were the immediate and direct causes of Mr Short being thrown from the bicycle. The defendant argues that, but for the presence of the pothole, no accident would have taken place and that therefore his hitting the pothole was a novus actus interveniens breaking the causal connection between the breach of duty by the car driver and Mr Short’s injury. It was certainly conceded by Mr Short that, had he not hit the pothole, he would have escaped the incident unscathed because the car was almost past him when he fell.

34. The defendant’s argument fails to confront three difficulties. First, ordinarily hitting a pothole would not, of itself, have thrown Mr Short from the bicycle because the suspension would absorb the jolt. The cause of his accident was more complex than that. The combination of factors which were the direct causes I have outlined above.

35. Second, a bicycle rider of Mr Short’s experience on the bicycle he was riding would ordinarily have been able to avoid a pothole or to cope with the difficulties it presented without danger if he were paying attention to the road. On all the evidence it seems reasonable to infer that Mr Short was paying attention: he had seen the car approach from his right, he checked to his left as he approached the intersection and then he checked to his front again and had his attention completely absorbed in avoiding a collision with a motor vehicle which failed to give way. He had not run blindly into the path of the car. It was entirely natural and reasonable, when a collision became imminent, for Mr Short to concentrate on the car rather than the road surface.

36. Third, but for the breach of duty by the driver of the car it is highly unlikely that Mr Short would have braked as he did, swerved as he did, failed to see the pothole as he did or hit it at a dangerous angle as he obviously did.

37. Common sense suggests here that but for the driver’s failure to give way, which in turn was caused most probably by a failure to keep a proper lookout, the accident would not have occurred. See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515ff per Mason CJ emphasising the need for courts to take a “commonsense” approach to questions of causation. I am therefore satisfied on the balance of probabilities that the conduct of the driver of the white car was a material causal factor in the accident resulting in Mr Short’s injuries. This leads to the next question.

Was there contributory negligence on Mr Short’s part?

38. The defendant asserts that if it is liable at all, its liability is reduced by contributory negligence on the part of Mr Short. It, of course, bears the onus of proving that assertion on the balance of probabilities.

39. It is not necessary that the defendant prove that the plaintiff breached a duty of care owed to the defendant but merely that “the injured party did not take reasonable care of himself and contributed, by this want of care, to his own injury”. Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 per Viscount Simon (PC).

40. In Sungravure Pty Ltd v Meani (1963-1964) 110 CLR 24 at 34, 37. the High Court said that an act that was heedless or inadvertent is not necessarily negligent. It recognised that the attention of even the prudent and reasonable may sometimes, for short periods, wander and that “some taking of a risk or other departure from the highest degree of circumspection [may be] excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.” Per Windeyer J at 37. It is a question of fact whether an error of judgment or heedlessness or inadvertence shows a lack of reasonable care on the part of a plaintiff for his or her own safety. The standard of care is an objective one.

41. Prudence and due care for one’s own safety may suggest to road users that they guard against the mistakes and lack of care of others on the road and that they not presume that others will at all times comply with road rules. A reasonably careful and prudent road user – pedestrian, cyclist, motorist – might be expected, depending on circumstances, to pay attention to the way others on the road at the relevant time are behaving and to leave a margin for error and safety to guard against mistakes on his or her own part but also on the parts of others less careful or attentive. It has been said, however, that “in guarding against another’s negligence there is no need to anticipate profound folly”. RP Balkin & JLR Davis Law of Torts (3rd ed) LexisNexis Butterworths, Sydney 2004 p.369 citing Karamalis v Commisioner for SA Railways (1977) 15 ALR 629 at 633 per Stephen and Aicken JJ.

42. If a defendant establishes a want of reasonable care on the part of the plaintiff, to be successful in proving contributory negligence it must then prove a causal connection between the negligence on the part of the plaintiff and the injury he or she received. If the negligence is not proven to be an operating cause of the injury, the defendant fails in its argument.

43. The defendant argues for a number of reasons that the court should find that Mr Short did not take reasonable care for his own safety. It says, first, that Mr Short was travelling too fast in all the circumstances. The evidence shows that he had, a block or so before he reached the intersection of Parkes St and Central Ave, been travelling at a speed of about 35 km/h and was accelerating down an incline towards the point at which he hit the pothole.

44. Second, it argues that he did not keep a proper lookout for potholes in the road because he was distracted from doing so by the car. It says that, but for the distraction, caused by Mr Short approaching the car at an excessive speed, he would most probably have noticed the pothole and avoided it without incident.

45. Third, the defendant argues that by approaching the car at an excessive speed and by failing to keep a proper lookout, Mr Short was forced, when he saw the car, to brake heavily and take evasive action which caused him to hit the pothole. It is said that by riding the way he did he left himself no margin for error or safety.

46. On this topic the defendant also reiterates that the primary operating cause of the accident was Mr Short hitting the pothole, not the manoeuvre of the car. But for the fact that he hit the pothole he would not have been injured at all. Taking all these factors into account, the defendant submits that the court should find that the worker’s culpability was at least 50 per cent of the total.

47. The plaintiff argues, on the other hand, that the court should pay close attention to the causal potency of each of the actors in the circumstances that arose in front of Mr Short that afternoon in assessing their relative blameworthiness and ask itself, “Who did what to control the situation?”

48. The plaintiff contends that Mr Short’s speed (if excessive at all) was not, of itself, a problem: if the car had not pulled out in front of Mr Short, failing to give way as it ought to have done, there would have been no incident or accident. The situation was therefore, according to the plaintiff, entirely under the control of the driver of the white car. Counsel for the plaintiff argues that a comparison of the causal potencies of the actors demonstrates that if there had been no breach of duty by the driver of the white car there would have been no accident whereas, even if there was some sort of breach by Mr Short speeding, it was insufficient of itself to cause the accident.

49. The plaintiff also submits that, in the circumstances, Mr Short was entitled, with the white car facing a Give Way sign, to expect that the car would give way to him and that he had acted reasonably in the circumstances. He also argues that if Mr Short contributed to any degree at all to his own injury, it was at the very low end of scale of culpability.

50. Mr Short made a very honest admission in cross-examination that, in hindsight, he may have been travelling “a bit too fast”. Implicit in that admission is another, namely, that he may have avoided injury but for the fact that he had cut his margin for error by speeding. He admitted he enjoyed travelling fast on his bicycle and had been pedalling and accelerating downhill as he approached the intersection.

51. It appears to me that Mr Short was reasonably attentive to the road and the conduct of the white car. He certainly noticed its presence and made a judgment, mistaken as it turned out, that the car was slowing or stopping at the intersection to give way to him. Having made that judgment he turned to ensure that there was no oncoming traffic emerging from the other side of the intersection.

52. At that point he had done almost all that could be expected of a reasonably prudent and careful rider, but not quite all. He had not allowed for the possibility that the car may not have seen his approach and might pull out in front of him in the mistaken belief that the way was clear or, having seen him, have misjudged his speed. While it is almost certain that Mr Short was travelling at speed under the speed limit, he was, nevertheless, travelling faster than the average pushbike might be expected to.

53. The facts that Mr Short did not see the pothole in the road and swerved into while braking were due entirely to the conduct of the white car. But the fact that Mr Short was so close to the white car that he had to take evasive action was due, at least in part, to the fact that he had cut his margin for error by pedalling hard and travelling at a relatively high speed. Coming down the incline towards the car he had had some capacity to control the situation: he might have taken the prudent, defensive course of slowing somewhat in case the car had not seen him or in case it misjudged his speed or distance or both. He controlled the size of the margin for error he allowed for the other vehicle and himself.

54. Mr Short is probably the best judge of whether he contributed in some degree to his own injury and his admission that he had been travelling “a bit too fast” is a fair summation of his culpability. In making that admission he was conceding that he was “a bit” to blame for the accident. I agree. I would assess his relative culpability at 10 per cent.

Has the plaintiff conducted “due inquiry and search”?

55. Section 34(1) of the Motor Accidents Compensation Act provides as follows:

An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant.

56. The Nominal Defendant contends that s.34(1) of the Motor Accidents Compensation Act applies to the employer in a recovery action brought under s.151Z(1)(d) and that therefore the indemnity is only available if the employer establishes that the “due inquiry and search” requirement under s.34(1) has been satisfied. It says that the requirement has not been satisfied.

57. The plaintiff argues that he has conducted reasonable inquiries so as to satisfy its obligations under s.34(1). The plaintiff contends that any obligation imposed upon him to make due inquiry and search is not absolute but is tempered by the adjective “due” and that what will be “due” will depend on circumstances.

58. The only source of liability for the Nominal Defendant is to be found in s.34(1) of the Motor Accidents Compensation Act. It creates a statutory action for damages where a person is killed or injured in a motor accident in NSW. To qualify for this beneficial scheme the ordinary litigant is required to undertake due inquiries.

59. The Nominal Defendant will only be held liable in an action under s.34(1) if the plaintiff proves that “the identity of the vehicle cannot after due inquiry and search be established”. So, for example, in State of New South Wales v Nominal Defendant [2004] NSWCA 328., Santow JA held that if the owner of the vehicle could be identified, even though the vehicle was one of a large fleet of government buses, this was sufficient because it was thus able to ascertained the bus was insured and there was no need for the Nominal Defendant to stand in the shoes of an unidentifiable owner or insurer.

60. On the other hand, the High Court in Harrison v Nominal Defendant (1975) 50 ALJR 680. and the Court of Appeal in Malcolm v Urban Transit Authority of NSW (1994) 20 MVR 87. decided that if by way of direct or inferential evidence it is established there was in reality no realistic possibility that any reasonably practicable inquiry and search undertaken would have identified the tortious vehicle, the requirement as to due inquiry and search is satisfied.

61. In this case, there is a real possibility that the white car was en route to one of the major arterial roads in the area, one of which, the Prince’s Highway is the main coast road from Sydney to Melbourne and is the main road artery of entire NSW South Coast. Mr Short kept an eye out for the vehicle but says that, after the incident, he never saw it again . As far as he was able to tell, it had no special identifying features and there was no accident damage inflicted on the car. His best recollection is that it was a Holden HQ model car. It is common knowledge that Holdens are very common in Australia and white is a very popular colour for motor cars in this country. A white Holden would simply blend into the background in almost any Australian town or on any major Australian road. The odds against the vehicle being identified, whether inquiries were made or not, were always high once it left the scene of the accident. I am doubtful that there was any reasonably practicable inquiry open to the plaintiff that would have enabled it to identify the driver or the car.

62. Here the evidence establishes that within a reasonably short time after the event, an investigation was conducted by Mr Dransfield, a private inquiry agent, who canvassed the houses in the area surrounding the intersection seeking to identify eye-witnesses who might be able to identify the vehicle or the driver of the vehicle. He conceded that advertisements had not been placed in local newspapers and that was clearly a line of inquiry that he could have followed. In 2006, Mr Dransfield once again canvassed the area surrounding the intersection and this time discovered Ms Mulder, whose evidence is outlined above.

63. The defendant contends that more could have been done by the plaintiff (or his insurer) to identify the driver of the white motor car. That is no doubt correct. The question, however, is not whether more could have been done but whether what was done was reasonable (or “due”) in the circumstances.

64. To canvass the local residents to locate eyewitnesses strikes me as the most sensible first step the investigator could have taken. Mr Short was able to say that he had been assisted by an unidentified woman who was on foot. From the fact that she was a pedestrian it is reasonable to infer that she may have been a local resident. If she was, a canvass of the area was likely to have been the most effective way of finding her. She was, apart from the driver of the white car and Mr Short himself, the only person Mr Short could identify as a potential witness of the accident. Advertisements in local newspapers may, serendipitously, have turned up other leads but that would depend on the witness (a) reading the newspaper and (b) noticing the advertisement. Given that there were apparently few people close enough to the scene of the accident to have read the number plate of a nondescript moving car, I would think the odds against such a course bearing fruit would have been high.

65. Notices could have been placed at or near the intersection but this seems a more chancy exercise than that conducted by Mr Dransfield of leaving his calling card with a request for information at houses where he was unable to speak to a resident. That canvassing could be successful is demonstrated by the fact that in 2006 Mr Dransfield was able to locate an eyewitness, Ms Mulder.

66. In all the circumstances, while I consider that there were other avenues available to the plaintiff to follow, I am satisfied on the balance of probabilities not only that those inquiries that were carried were reasonable but that they were, in the circumstances, sufficient to satisfy the requirements of s.34(1) and that, in any event, there was, on the balance of probabilities, no realistic chance of identifying the car once it had left the scene.

Quantum

67. The parties have agreed that the notional total damages be assessed as being $37,000. Taking account of contributory negligence on Mr Short’s part, the defendant’s total notional liability would be reduced by 10 per cent to $33,300. (The plaintiff’s claim is, of course, capped at that amount.)

68. The plaintiff’s claim in respect of the indemnity is a sum of $16,897.77. He further claims interest on that sum from 10 December 1998 to the date of judgment, a sum I calculate to be $11,911.91. I understand that there is no argument as to the quantum of workers’ compensation paid.

Verdict and judgment

69. There will be a verdict for the plaintiff in the sum of $16,897.77 and judgment accordingly.

70. I reserve the question of interest and costs with liberty to apply.

Hugh Dillon