Palmer v Allianz Australia Insurance Limited
[2025] NSWPIC 440
•28 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Palmer v Allianz Australia Insurance Limited [2025] NSWPIC 440 |
| CLAIMANT: | Mikaila Jayne Palmer |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Michael Inglis |
| DATE OF DECISION: | 28 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; sections 2.3 and 2.31 considered; claimant involved in a three-car accident on a narrow stretch of road with heavy traffic; drivers all agreed to proceed to a TAFE carpark 30 metres from the scene of the accident to exchange details; allegation that claimant should have photographed the offending motorist’s licence plate; factual issue as to whether the licence plate was available for inspection and to be photographed; offending driver absconded from the scene after agreeing to proceed to the TAFE carpark; insurer alleged failure by the claimant to make due inquiry and search to establish identity of the offending vehicle; Held – claimant acted reasonably in the circumstances and made sufficiently prompt and thorough due search and enquiry as the circumstances permitted; Nominal Defendant v Meakes, and Oztan v NSW Ministerial Corporation cited. |
| DETERMINATIONS MADE: | CERTIFICATE Pursuant to the requirement of section 2.3 (1) (b) of the Motor Accident Injuries Act 2017, the claimant has establised due search and enquiry. |
REASONS FOR DECISION
BACKGROUND
At about 7:45 am on Wednesday, 27 November 2024, Mikaila Palmer (the claimant) left her home in Gladesville to drive to work. In her statement to an investigator appointed by the insurer, the claimant says, relevantly:
“36. This drive takes approximately 25 minutes. I travelled south along Wentworth Road, Strathfield driving through a roundabout located across of Everton Road. At this time of the morning this area is heavy with traffic, so speeding is highly unlikely.
37. When I drove through the roundabout, I travelled south for a further 100 metres before coming to a complete stop behind a grey Renault Koleos, ECV81U (NSW). Having a guess, I would say that I was possibly the third or fourth car stopped from the crossing. I couldn’t see if we were stopped for pedestrians, or due to heavy traffic at the roundabout.
38. The gap between my car and the car in front was around 1-2 metres, and I was stopped between 5-10 seconds, when suddenly another car collided with the rear of my car, pushing it into the rear of the car in front. It was a forcefully hit, which caused my body to be thrown forward, before being stopped by the seatbelt. The impact from the car that hit me to my car hitting the car in front I believe decreased.
39. I immediately got out of my car and saw a female driver from the car in front walking towards me. This driver was agitated that my car had hit hers, but I tried to explain, that I was hit from behind which caused my car to hit hers. I saw a male driver get out of the car that had hit me. I would describe this driver as an Asian male, approximately 35 years of age, medium build and height, wearing tradie clothes. I don’t remember what he said, but he was extremely quiet. His car was light in colour, maybe grey or white. I really have no idea what type it was, because I was in a bit of shock what just had occurred.
40. Due to the three of our cars blocking the entire southbound traffic along Wentworth Road, and cars starting to honk, I suggested we all turn right at the roundabout into the TAFE car park, where we could exchange details. This location was only 30 metres further down the road. I followed the car in front into the TAFE car park entrance, and was looking into my rear mirror making sure that the driver that hit me, came into the car park as well. When I went around the roundabout and committed driving into the TAFE car park, I noticed the other car drive through the roundabout and continue south along Wentworth Road. I don’t think this car raced away, just continued driving at the normal speed.
42. I exchanged details with the driver that I collided with and took several photographs of her car and my car. I have forwarded these photographs onto Todd Douglas via SMS.
45. Around 10:00 am, I attended Burwood Police Station where I reported the matter. I supplied the constable with a version of what occurred, and he wrote this down in his notebook before I signed the entry. Police report no E-85230583 relates, provided by Constable Chui.”
THE CLAIM
The claim is for medical expenses only which have been agreed.
ISSUE TO BE DETERMINED
The only issue to be determined is whether or not the claimant made the required due search and enquiry to identify the offending owner and/or driver. Section 2.30 of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“2.30 Claim against Nominal Defendant where vehicle not identified
(1) 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 accident in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2) A claim cannot be made against the Nominal Defendant under this section unless due enquiry and search has been made to establish the identity of the motor vehicle concerned.
(3) If the motor accident resulting in the death of or injury to a person occurred on land that is a road-related area within the meaning of section 4(1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident, the person was a trespasser on the land.
(4) The enquiry or search may be proved orally or by affidavit of the person who made the enquiry or search.
(5) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.”
Section 2.31 is also relevant and it provides:
“2.31 Rejection of claim for failure to make use, enquiry and search to establish identity of vehicle
(1) If due enquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 2.30 cannot be referred for assessment under Division 7.6 unless –
(a)The Nominal Defendant has lost the right to reject the claim for failure to make that due enquiry and search, or
(b)The Commission has determined that due enquiry and search has been made, or
(c)The claim is referred only for a certificate of exemption from assessment under Division 7.6.
(2) The Nominal Defendant loses the right to reject the claim for failure to make due enquiry and search to establish the identity of the vehicle if the Nominal Defendant –
(a)Does not, within two months after the claim is made, reject the claim for failure to make that due enquiry and search or ask the claimant to make that due enquiry and search,
or
(b)Does not, within two months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due enquiry and search to establish the identity of the vehicle.
(3) If Court proceedings are commenced on a claim against the Nominal Defendant under section 2.30, the Nominal Defendant may apply to the Court to have the proceedings dismissed on the ground that due search and enquiry to establish the identity of the motor vehicle has not been made.
(4) An application to have proceedings dismissed on that ground cannot be made more than two months after the Statement of Claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground.
(5) On an application to have proceedings dismissed on that ground, the Court must dismiss the proceedings unless satisfied that due enquiry and search to establish the identity of the vehicle has been made.”
TIME LIMITS
The claimant’s application for personal injury benefits was made on 12 December 2024. Allianz Australia Insurance Limited, the nominated insurer to consider the claim, rejected it on 6 February 2025 on the basis that the claimant’s obligations to make due search and enquiries had not been met.
On 17 February 2025, that decision was affirmed on review. Accordingly, I find that the time limiting requirements contained within s 2.31 of the MAI Act have been complied with.
PRELIMINARY CONFERENCE
On reading the submissions by the insurer, which I will refer to in more detail later in this decision, I noted that the insurer submitted:
“18. Further the claimant believed that the unidentified vehicles registration plates fell off during the collision, however, it does not appear she canvassed the accident site for the plates, which would have identified the vehicle. If the unidentified vehicle plates fell off on impact, a simple search of the area could have identified the vehicle.”
In the preliminary conference, I question the claimant about the presence of the number plates of the insured driver being present on the road. She was unsure about this but indicated that there was further evidence available in relation to the number plates. She further noted that the traffic was heavy at the time and that there kerbside parking was restricted in the direction in which she was heading at the time of the collision. Bearing in mind that the claimant was self-represented, I determined that I would afford the claimant the opportunity of providing further evidence which was not opposed by the insurer.
ADDITIONAL EVIDENCE
Subsequently uploaded on to the portal by the claimant was a document containing references to various emails.
In relation to the presence of licence plates on the road, I have been provided with a photograph taken by the claimant immediately after the accident which does not show a licence plate being on the road. There is also an email from the claimant to the Investigating Police Officer, Constable Chui, said to be dated 29 November 2025 but clearly that date must be 29 November 2024 as the same email was apparently forwarded to the insurer on 30 January 2025. In that email, the claimant says relevantly:
“Thanks for the update. Hopefully the camera can pick up something even an image of the guy who hit me. Not sure how useful that would be but maybe if yes another camera to validate it’s him. I think his licence plate may have fallen off in the collision. I don’t recall it if I mentioned that on Wednesday. I think I have a memory of him picking it up.”
I was also provided with a copy of another photograph said to have been taken 20 minutes after the accident, which again shows no licence plates on the road surface.
As to the reason for the drivers leaving the scene of the accident without exchanging details, the claimant confirmed that “The accident happened at a roundabout with a pedestrian crossing. Cars often turn at the roundabout then have to stop suddenly to allow pedestrians to pass. In my opinion and my assessment at the time, was that this was not an appropriate place to stay and exchange details. “ The claimant referred me to statements that she made to the insurer’s investigator relevantly:
“40. Due to the three of our cars blocking the entire southbound traffic along Wentworth Road, and cars starting to honk, I suggested we all turn right at the roundabout into the TAFE car park, where we could exchange details. This location was only 30 metres down the road.
35. Wentworth Road has one lane of traffic travelling in each direction, with minimal street parking allowed. These lines are separated by double unbroken lines.”
Although I was not referred to this paragraph by the claimant in her supplementary material, I note that at paragraph 45 of her statement, she says;
“45. Around 10:00 am I attended Burwood Police Station where I reported the matter. I supplied the constable with a version of what occurred, and he wrote this down in his notebook before I signed the entry.
50. Over the following weeks I was receiving updates from Constable Chui, in relation to possible CCTV of the accident. This in the end was futile, and no CCTV could be located.”
SUBMISSIONS
Insurer’s Submissions
The insurer in its submissions made reference to the relevant legislation. As to the law, it was submitted as follows:
“10. In Nominal Defendant v Meakes [2012] NSW CA 66, the Court of Appeal considered whether the plaintiff had discharged his duty to undertake due search and enquiry. The Court of Appeal concluded that what is reasonable depends on the circumstances and must be prompt and thorough as the circumstances will permit.
11. In Meakes, it was noted that the plaintiff was not so injured as to have prevented him from writing that information down, given he had a pen and paper in his briefcase.
12. Further, in Meakes Sackville AJA held that when assessing “due enquiry and search” the respondent should be taken as a reasonably informed member of the community.
13. In Oztan v NSW Ministerial Corporation [1995] MVR 259, Kirby P stated that “due enquiry and search means such enquiry and search as is reasonable in the circumstances”. To be reasonable it must be prompt and thorough as the circumstances will permit.
14. As established in Austen and more recently in Meakes, for due search and enquiry and search to be considered “reasonable” it must be undertaken promptly. That is due enquiry and search should be done, immediately and without delay.”
As to the claimant’s alleged failure, the insurer submitted:
“15. Having alighted from her car, it is not unreasonable to assume the claimant would have taken a photograph of the registration plate of the vehicle at fault. This would have taken a matter of a seconds and, in the insurer’s respectful submission, is common practice for motorists who have been involved in accidents.
16. While the insurer acknowledges that an agreement was purportedly reached for the three drivers to move their vehicles to a nearby car park. It is not outside the realm of possibility that a driver, who has caused a multi-vehicle accident, would attempt to leave the scene of the accident.
17. In Meakes, one of the relevant considerations was the level of enquiry and whether the injuries prevented him from exchanging details. One of the reasons the plaintiff did not exchange details with the driver of the unidentified vehicle was that he did not believe the injuries were serious. The Court of Appeal held that the plaintiff was not so injured as to have prevented him from writing down the fault driver’s details. In the present case, the claimant advised that all drivers “seemed okay”. It was not the case the claimant was severely injured, such as that she was unable to take a photograph of exchange brief particulars.
18. Further, the claimant believed that the unidentified vehicles registration plates fell off during the collision however it does not appear she canvassed the accident site for the plates, which would have identified the vehicle. If the unidentified vehicles plates fell off on impact, a simple search of the area could have identified the vehicle.”
The insurer had declined the opportunity to respond to the claimant’s additional evidence.
CONSIDERATION
As is submitted, Meakes establishes that “what is reasonable depends on the circumstances and must be as prompt and thorough as the circumstances will permit. Austen confirms that principle. Oztan also establishes that for due enquiry and search to be considered “reasonable”, it must be undertaken promptly. That is due enquiry and search should be done, immediately and without delay.
It is therefore incumbent upon me to determine whether the claimant’s actions were reasonable in the circumstances in which she found herself and whether the due enquiry and search was done immediately and without delay.
The evidence establishes that the accident occurred on a single lane roadway in heavy traffic at about 8:00 to 8:10am claimant says and I accept that the three cars involved in the accident were blocking the entire southbound lane and that drivers behind were starting to honk their horns. In the circumstances, the claimant made a decision to suggest that the three drivers turn right at the upcoming roundabout into the TAFE car park where they could safely exchange details. She says that this was only 30 metres down the road.
Given that the drivers were in agreement and the geography and traffic conditions, I am of the opinion that this was a perfectly reasonable decision in those circumstances.
The insurer further submits that the claimant should have taken a photograph of the insured driver’s number plate. Exactly what happened to the number plate is uncertain. At a time reasonably contemporaneous to the accident, the claimant reported to the investigating police officer that she had a recollection that the number plate on the front of the offending vehicle had fallen to the ground and that the driver had picked it up. The fact that a photograph was taken of the scene by the claimant about 20 minutes after the accident and no number plate was present on the road surface would indicate that the claimant’s recollection was indeed correct. In those circumstances, it would not have been possible to take a photograph of that number plate.
Having assessed the situation the claimant determined that it was not appropriate to exchange particulars at the scene with the drivers all agreeing to proceed to the TAFE car park for that purpose. I regard that decision as reasonable in the circumstances
The claimant had no reason to anticipate that the insured driver would abscond, he having agreed to move to the TAFE car park for the exchange of particulars.
At about 10:00am on the same day, the claimant reported the accident to the police and liaised with Constable Chui over the following weeks in the hope that CCTV might provide information to assist in identifying the offending vehicle.
In addition to those steps, the evidence before me also establishes that the claimant walked the local streets looking for video cameras and joined a local Facebook group in Strathfield, posted about the accident asking if anyone had any information to contact her or Burwood Police and monitored and responded to all messages received.
For these reasons, I am satisfied that the actions taken by the claimant were reasonable and sufficiently prompt and thorough as the circumstances permitted.
Accordingly, I am satisfied that due search and enquiry has been established.
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