Nominal Defendant v Ayache

The appeal concerned a claim brought by the respondent, Mr Ayache, against the Nominal Defendant, arising from a motor accident. The central dispute revolved around whether the respondent had conducted a "due inquiry and search" for the driver and vehicle involved in the accident, as required by the relevant legislation for a claim against the Nominal Defendant. The case was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in finding that the respondent had made a due inquiry and search. Specifically, the court had to determine if the respondent's failure to obtain details of the driver and vehicle at the scene of the accident was excused by his injuries, shock, and pain, thereby satisfying the statutory requirement.

The Court of Appeal upheld the primary judge's finding that the respondent was disabled from making the necessary inquiries at the scene due to his injuries, shock, and pain. The court reasoned that the statutory requirement for a "due inquiry and search" did not necessitate an exhaustive investigation but rather a reasonable and diligent effort in the circumstances. Given the respondent's condition, his inability to gather details at the scene was considered a reasonable consequence of his injuries, and no error was found in the primary judge's assessment of this fact.

Consequently, the Court of Appeal dismissed the appeal and ordered the Nominal Defendant to pay the respondent's costs.