Nominal Defendant v Swift

In *Nominal Defendant v Swift*, the New South Wales Court of Appeal considered an appeal by the Nominal Defendant concerning the liability of the Nominal Defendant and a local council for injuries sustained by the respondent, Ms Swift, in a motor vehicle accident. Ms Swift was a passenger in a vehicle that left the road and collided with a gutter, resulting in her injuries. The driver of the vehicle was unidentified.

The primary legal issues before the Court were whether the Nominal Defendant had conducted due search and inquiry as required by section 28(1) of the *Motor Accidents Act 1988* (NSW) to avoid liability for the unidentified vehicle, and whether the local council was liable for the state of the gutter which allegedly contributed to the accident. The Court also considered the issue of causation and whether Ms Swift's failure to wear a seatbelt constituted contributory negligence.

The Court of Appeal found that the Nominal Defendant had not discharged its onus of proving due search and inquiry under section 28(1) of the *Motor Accidents Act 1988* (NSW). However, it also determined that the council was not liable for the state of the gutter, as there was no sufficient causal connection between the condition of the gutter and the accident. The Court further held that Ms Swift's failure to wear a seatbelt did not amount to contributory negligence in this instance.

Consequently, the Nominal Defendant's appeal against Ms Swift was dismissed, and its cross-claim against the council was also dismissed. The council's appeal against Ms Swift was upheld. The Nominal Defendant was ordered to pay the costs of its appeal against Ms Swift and its cross-claim against the council. In relation to the council's successful appeal, the Nominal Defendant was ordered to pay 70% of the council's costs.