The Nominal Defendant v Gibb

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Nominal Defendant v Gibb
Citation:	[2024] ACTSC 418
Hearing Dates:	11 June, 4 July 2024
Decision Date:	27 December 2024
Before:	Taylor J
Decision:	(1) Leave is granted to amend the notice of appeal. (2) The appeal is dismissed. (3) The answer to the question: Is the vehicle involved in the accident on 20 December 2019 an unidentified vehicle within the meaning of section 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT)? is confirmed to be ‘yes’. (4) If an order for costs is to be sought, the parties have liberty to contact chambers.
Catchwords:	CIVIL LAW – APPEAL – Appeal from Magistrates Court – collision between motor vehicle and cyclist – whether vehicle involved is an unidentified vehicle within the meaning of s 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT) – whether respondent experienced shock – whether respondent undertook reasonable inquiry and search – whether respondent appreciated the extent of his injuries
Legislation Cited:	Court Procedure Rules 2006 (ACT), rr 1521, 5111(2) Magistrates Court Act 1930 (ACT), ss 274, 276 Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 62, 63
Cases Cited:	Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 Blandford v Fox (1944) 45 SR (NSW) 241 Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375 Ford v Nominal Defendant [2023] QCA 83; 104 MVR 122 Fox v Percy [2003] HCA 22; 214 CLR 118 Harrison v Nominal Defendant (1975) 7 ALR 680 Lee v Lee [2019] HCA 28; 266 CLR 129 Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 331 ALR 550 The Nominal Defendant v Ross [2014] NSWCA 212; 87 NSWLR 238 Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay [2009] NSWCA 221; 53 MVR 273
Parties:	The Nominal Defendant ( Appellant) Neil Gibb ( Respondent)
Representation:	Counsel B Wilson ( Appellant) W Reynolds ( Respondent)
Solicitors HWL Ebsworth Lawyers ( Appellant) Maliganis Edwards Johnson ( Respondent)
File Number:	SCA 10 of 2024
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Richter Date of Decision: 17 January 2024 Case Title: Gibb v The Nominal Defendant Court File Number: CS 199 of 2022

TAYLOR J:

Introduction

1․This is an appeal from a decision of Special Magistrate Richter on 17 January 2024. On 20 December 2019 the respondent was knocked from his bicycle when a motor vehicle struck him. The respondent did not record the details of the motor vehicle or the driver. The respondent claimed he suffered injury because of the collision.
2․The Special Magistrate was asked to determine a preliminary issue by answering the following question:
Is the vehicle involved in the accident on 20 December 2019 an unidentified vehicle within the meaning of section 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT)?
3․The Special Magistrate determined that the answer to the question was “yes”. The appellant appeals from that determination.
4․The appellant relies on the following grounds of appeal:
(a)The Special Magistrate erred in rejecting (if he did so reject) the opinion of Dr Lowy to the effect that the Respondent remained capable of reasoning and decision making at all relevant times.
(b)(1) The Special Magistrate erred in finding that the Respondent’s failure to obtain the requisite number plate details from the 4WD was primarily a consequence of him not appreciating the extent of his injuries.
(b)The Special Magistrate erred in finding that the Respondent’s failure to obtain the requisite number plate details from the 4WD was to a lesser extent a result of his own peculiar personality traits and the psychological impact of the accident which caused him to react poorly to the driver.
(c)The Special Magistrate erred by effectively deciding whether it was “understandable and excusable” for the Respondent not to have recorded the registration details immediately after the accident rather than instead deciding whether the respondent had proven that the identity of the vehicle could not be identified after reasonable inquiry and search (within the meaning of s 62(1)(a) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (the Road Transport Act).

(d)The Special Magistrate erred by failing to find that the Respondent had not proven that the identity of the vehicle could not be identified after reasonable inquiry and search (within the meaning of s 62(1)(a) of the Road Transport Act).

Background

5․The respondent, Mr Neil Gibb, was born on 11 April 1956. At about 7pm on Friday, 20 December 2019, the respondent was riding a bicycle on a footpath in front of the Ainslie Arts Centre (the Centre). The respondent rode across the driveway to the Centre which consisted of a one-way semi-circle to enter and exit the Centre onto Elouera Street, Braddon. The respondent claimed that as he approached the driveway to the Centre his vision was obscured by a large hedge. The respondent proceeded to cross the driveway and was struck by a four-wheel drive motor vehicle (the vehicle) on his left side. Neither the respondent nor the driver of the vehicle were travelling at a high speed.
6․The driver exited the vehicle and offered to call an ambulance for the respondent. Two other bystanders also offered assistance. The respondent declined medical attention or assistance, and neither police nor emergency services were called. The respondent abandoned his bicycle in the bushes near the Centre, walked a short distance from the scene and eventually walked home.
7․The respondent sought medical assistance later that evening. On 4 February 2020, police advised the respondent that their attempt to identify the vehicle was unsuccessful. The respondent’s injuries persisted and consequently, he sought legal advice on 22 September 2020.

Jurisdiction

8․This is an appeal governed by Part 4.5 of the Magistrates Court Act 1930 (ACT) (the MCA). It is brought pursuant to s 274(2) of the MCA which provides:
274 Cases in which appeal may be brought
(1)An appeal may be brought only with the leave of the Supreme Court.
(2)However, an appeal may be brought as of right from a judgment or order—
(a)for, or for the payment of, an amount of $2 000 or more; or
(b)in a proceeding in the Magistrates Court—
(i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or
(ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.

9․Section 276 of the MCA provides:
276 Evidence on appeal
In an appeal, the Supreme Court must have regard to the evidence given in the proceeding in the Magistrates Court out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.

10․The appeal is by way of re-hearing. In accordance with the principles that govern an appeal of this kind, it is necessary to conduct a “real review” of the proceedings to determine if the Special Magistrate erred in fact or law: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27.
11․In Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] the High Court observed:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect” [Dearman v Dearman (1908) 7 CLR 549 at 564 citing The Glannibanta (1876) 1 PD 283 at 287].
12․In Lee v Lee [2019] HCA 28; 266 CLR 129 at [55] (Bell, Gagelar, Nettle and Edelman JJ), the High Court restated the task of an appellate court as follows:
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge".
Citations omitted.
13․If error is established, the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 331 ALR 500 at [43].
14․The question at the centre of the appeal is whether the Special Magistrate was correct in the approach he took to the expert evidence and in turn, the conclusion he arrived at with respect to the affect upon the respondent of the collision and the identification of the vehicle. In assessing whether the Special Magistrate fell into error, I must bear in mind the advantage he had in seeing and hearing the evidence.
15․The parties agreed that if error was established, the matter need not be remitted to the Magistrates Court for further hearing.

Leave to amend the grounds of appeal

16․An Application in Proceeding was filed on behalf of the appellant on 30 May 2024 seeking leave pursuant to r 5111(2) of the Court Procedure Rules 2006 (ACT) (the Court Procedure Rules) to amend the Notice of Appeal to include ground (b)(1), it having been erroneously omitted. The respondent did not oppose the inclusion of the additional ground. In those circumstances, leave ought to be granted.

Proceedings in the Magistrates Court

17․The respondent brought proceedings against the appellant, the Nominal Defendant, as well as Arts Capital Pty Ltd and the Australian Capital Territory. The respondent did so pursuant to s 63 of the Road Transport Act, asserting that he was unable to identify the driver of the vehicle involved in the collision.
18․Section 62 of the Road Transport Act relevantly provided:
(1)In this Act:
“unidentified motor vehicle” –
(a)Means a motor vehicle that cannot be identified after reasonable inquiry and search; and
…

(3)The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.

19․Section 63 of the Road Transport Act provided:
(1)This section applies if –
(a)a personal injury is caused by a motor accident; and
(b)the motor vehicle involved in the motor accident is an unidentified motor vehicle; and
(c)the motor accident happened in the ACT.

(2)The nominal defendant is liable in relation to the personal injury if –
(a)a CTP policy were in force for the motor vehicle; and
(b)the nominal defendant were the CTP insurer for the CTP policy.

(3)However, the nominal defendant is not liable in relation to the personal injury if –
(a)the motor accident happened on an area that is not on a road and is open to or used by the public for driving, riding or parking vehicles; and
(b)at the time the motor accident happened, the person injured was a trespasser on the land.

20․The respondent claimed that because of the collision, he suffered various injuries, namely:
(a)a mildly displaced avulsion fracture from the dorsal cortex base of the proximal phalanx of the right thumb;
(b)arthritic change in the right thumb;
(c)medical meniscal tear and medical collateral ligament tear of the right knee;
(d)medical meniscal tear of the left knee;
(e)pain and restriction in the right thumb;
(f)pain and restriction in the knees bilaterally;
(g)anxious mood; and
(h)shock.

21․The respondent claimed that these injuries have collectively reduced his capacity to engage in daily tasks and required him to undergo medical treatment.
22․On 12 May 2023, the appellant – then the first defendant to the proceedings – filed an Application in Proceeding that, pursuant to r 1521 of the Court Procedure Rules, the Court decide the preliminary question set out at [2].
23․That application was granted on 24 May 2023. The hearing addressing that preliminary issue took place over three separate days. On 19 June 2023, the respondent gave evidence in Court and both parties tendered medical reports. The hearing continued on 10 August 2023 and two experts, Dr Emma Adams and Dr Eva Lowry gave evidence. The final day of the hearing was 17 October 2023.
24․The proceedings centred on whether ‘reasonable inquiry and search’ was established by the respondent to identify the motor vehicle pursuant to s 62(1)(a) of the Road Transport Act. The parties agreed that the relevant period was confined to what did or did not happen at the scene of the collision.
25․The second and third defendants did not appear in any of the proceedings.
26․The Special Magistrate reserved his decision and provided his written reasons to the parties via email on 17 January 2024.

Evidence in the Magistrates Court proceedings

Evidence of the respondent

Statement

27․The respondent produced a written statement dated 8 June 2021 (the June statement) in which he outlined the circumstances of the accident. That statement is summarised as follows:
(i) At around 6:05pm, the respondent was riding his bicycle along a footpath when a white four-wheel-drive collided with him. He was thrown off his bicycle and onto the driveway.
(ii) The driver of the motor vehicle exited the vehicle and asked words to the effect of ‘are you ok’. The respondent stated:
At this time, I was in shock and did not think I had any injuries. I remember thinking I was lucky to be alive. I told the driver of the four-wheel-drive words to the effect ‘I am alright, I am alright’.

(iii) Two witnesses, one female and one male, approached and asked words to the effect of ‘are you ok’. The driver of the four-wheel-drive asked whether to call an ambulance. The respondent replied with words to the effect of ‘I am alright, I don’t need an ambulance, leave me alone’.
(iv) The respondent remained on the ground for 90 to 120 seconds after the accident. He then “pushed [his bicycle] towards the hedges lining the driveway in frustration” and walked back toward his residence.
(v) After walking for 90 to 120 seconds, the respondent received a phone call, at which point he had travelled approximately 100 metres from where the accident occurred. He remained with his back to the scene of the accident for approximately four minutes while speaking on the phone. When he turned around the driver and the two witnesses had left the scene. He did not see any of the vehicles depart.
(vi) The respondent stated:
I did not know I had an obligation to obtain the contact details of the driver of the four-wheel drive. The driver of the four-wheel-drive did not offer to provide me his contact details.
I remember the four-wheel-drive as being white in colour with a black bumper bar and one tall aerial on its front.

(vii) The respondent walked home, had a shower and went to sleep. He was in considerable pain when he awoke which prompted him to attend the hospital where he was told that he had a broken right thumb and ruptures in both knees.
(viii) On 22 December 2019 the plaintiff attended the scene of the accident to attempt to locate his bicycle.
(ix) On 24 December 2019 the plaintiff reported the accident to police.

Affidavit
28․The respondent provided an affidavit dated 17 June 2023 (the affidavit) again outlining the circumstances of the accident. The respondent’s account in the affidavit was largely consistent with the June statement. The affidavit included the following additional information:
(i) In the immediate aftermath of the collision, the respondent described laying on the ground for a short time feeling “shocked and shaken”. He was able to stand up therefore he did not think he was injured. He was “stunned” and did not “immediately appreciate what had happened”. He was “irritable as a result of the shock and fright” caused by the accident.
(ii) After noticing the resulting damage to his bicycle, the respondent recalled becoming “distracted and frustrated surveying the damage and thinking about the cost of repairs”. The bicycle had been given to him for free. The respondent did not want to pay for repairs, so he threw the bicycle into nearby bushes.
(iii) Following the accident the respondent observed that he had some grazing on his shoulder and his thumb was bleeding. He considered these injuries “trivial” and believed he was “fine” and would “be able to walk it off”. He believed the “shock and surprise dulled the pain”.
(iv) The respondent said that after he realised the vehicle had left the scene, he sat and rested until about 6.40pm.

Oral evidence
29․In examination in chief, the respondent adopted the contents of his affidavit dated 17 June 2023 and his statement dated 8 June 2021.
30․In cross-examination, the respondent gave evidence that immediately following the collision he was lying flat on his back on the road with a view of the ‘bull bar’ of the car which was approximately one metre from him. He disagreed with the suggestion that from where he was lying he would have been able to see the numberplate on the front of the vehicle. He attributed his inability to see the numberplate to his state of shock.
31․The respondent stated that at the time of the accident he had a mobile phone with him which had a camera function. He stated that he did not use this function in the aftermath of the accident as his use of his mobile phone is typically limited to communication purposes.
32․The respondent gave evidence that in the two minutes after the accident he made an assessment regarding the “worth” of his bicycle, the damage to it and the cost of repairs which resulted in him throwing it into the bushes. He disagreed that he would have been able to similarly assess the vehicle as he “wanted to get away” and “was in shock”.
33․The respondent agreed that while lying on the road he was aware that he had suffered “at least some injury”. He was not aware that his thumb was bleeding and that his knees were sore until he had begun walking away and answered a phone call.
34․The respondent gave evidence that he was not sure whether he and the driver of the vehicle had left the scene at the same time or whether he walked away first, only that when he later turned around, the vehicle was not there.
35․Upon suggestion that there was no reason for him not having asked the driver for registration details, the respondent replied:
Just the state of my mind at the present – at that time.
…
It never encountered me that I needed the rego details because I didn’t think my injuries were this severe that I had to get to this stage in this day today (sic).

36․The respondent agreed that he possibly could have asked one of the other witnesses to record the driver’s registration details however he was not in the “right frame of mind” to do so noting the trauma and shock he was feeling. The respondent agreed that despite the shock he was experiencing, he was able to make observations about his bicycle and surroundings, answer a phone call and communicate with people. He disagreed with the suggestion that his state of shock had improved by the time he was able to move off the roadway.
37․The respondent acknowledged that he had never been involved in an accident and didn’t “know the laws” therefore was unaware that he had any obligation to take note of the vehicle’s registration details. The respondent agreed his injuries were more than just “trivial” however he contemporaneously categorised them this way due to being “a male”.

Expert evidence

Psychiatric report of Dr Emma Adams

38․Dr Adams assessed the respondent on 8 December 2021.
39․During the assessment, Dr Adams was told by the respondent that on 21 December 2019 he decided to go for a bicycle ride. As he rode past the Centre, he did not see the four-wheel-drive due to the height of the bushes and the next thing he realised he had “hit the deck”.
40․The respondent informed Dr Adams that in the immediate aftermath of the accident he thought, “I could have just been killed”. He explained to her that “he had just had a massive fright and was, as a result, irritable and not thinking as clearly, nor as reflectively as he normally might be”. He told her that he became preoccupied with the resultant damage to the bicycle as he assessed that it would cost about $70 to have it fixed, consequently he “hoicked the bike in the bushes”.
41․The respondent told Dr Adams that he noticed some injuries at the time of the accident, such as the “bark” scraped off his shoulder and back, as well as injuries to his knee and thumb. He said, “being a typical male I thought I was alright” but that upon later reflection, “I think I was in shock”. The respondent said he realised he should have inquired about details, but that by the time he had turned around everyone had left. He then walked across the road and sat down, “feeling terrible and crying” for about 10 minutes.
42․Dr Adams concluded that the respondent did not suffer from any ongoing psychological disorder as a result of the accident. However, she concluded that his experience of “nervous shock” at the time of the collision was explanation for why he did not immediately report the accident nor take details from the driver of the vehicle. Dr Adams observed that the driver of the vehicle similarly did not take the respondent’s details and left the scene of the collision.

Psychological report of Dr Eva Lowy

43․Dr Lowy did not examine the respondent and referred to the report prepared by Dr Adams.
44․Dr Lowy formed the view that the respondent’s affidavit demonstrated that he had ‘cognitive activity’ immediately following the accident. He was aware of and able to describe his feelings, he noticed the damage to his bicycle, he realised he could not ride the bicycle home, and he determined that the bicycle was not worth repairing. Dr Lowy considered it unlikely that the respondent would have had the ability to engage in such thinking and decision-making activities had he been in shock.
45․The report noted that there is no medical diagnosis for “shock” and concluded that shock fluctuates after a triggering event. Dr Lowy concluded that the respondent “experienced a temporary and short-term feeling of being shocked or stunned” however, “retained the capacity to record in at least photographic form or to request that someone else record for him, the registration of the unknown vehicle in the period after the accident up until he walked away from the scene”.
46․Dr Lowy disagreed with Dr Adams that the respondent’s experience of “nervous shock” at the time of the accident was the reason that he did not ask the driver for his registration details. Instead, Dr Lowy attributed it to the respondent’s “lack of knowledge” about needing to obtain the driver’s contact details.

Oral evidence of Dr Adams and Dr Lowy

47․Dr Adams and Dr Lowy gave concurrent evidence on 10 August 2023. Dr Lowy attended court via audio-visual link and Dr Adams appeared in person.
48․Dr Adams gave evidence that the respondent declining the assistance of an ambulance demonstrated “a level of distraction from reality” and “discombobulation” which from her experience as an emergency doctor, was common to those who had recently experienced physical trauma.
49․Dr Lowy disagreed with the characterisation that the refusal of ambulance assistance at the scene demonstrated “confused thinking”. She also disagreed that the respondent’s initial belief that he was uninjured was inconsistent with rational thought.
50․The statement made by the respondent that “I did not know I had an obligation to obtain the contact details of the driver” was significant in Dr Lowy’s view. It was put to Dr Lowy that this statement had at least two propositions, “one, that he just didn’t have the knowledge, or the second, that he was so distracted that he didn’t know he had to do something”. Dr Lowy disagreed that “there are two ways of reading it” whereas Dr Adams considered that the statement was open to both interpretations.
51․Dr Adams explained that because of the unique combination of the respondent’s psychological experience and trauma response, he was unable to “fully use that rational thinking part of his mind”. His ability to communicate and make the decision to get off the road was attributed to his reflex and instinct. Dr Adams stated that “you can make seemingly rational decisions when you still are in a state of shock”. Dr Adams did not agree that the respondent had undertaken an economic assessment of his bicycle. Instead, Dr Adams considered that his actions with respect to his bicycle were driven by his instinctive desire to get home and accordingly he was frustrated that the bicycle was too damaged to be of assistance to him in that regard.

Decision of the Special Magistrate

52․The Special Magistrate’s written (to date unpublished) reasons extended to 12 pages and included an identification of the issues, a summary of the evidence and findings.
53․At [22] of the reasons, his Honour found:
On being pressed further on the issue of whether he could see the numberplate, Mr Gibb was evasive in his answers in relation to that fairly simple question. During the hearing, I described Mr Gibb as ‘beating around the bush’ in relation to that issue, and I continue to hold that view. Mr Gibb was being guarded in his answers and responded that he was ‘in shock’.
Footnote omitted.
54․His Honour observed the following at [54]-[55] of the reasons:
54. I accept that Mr Gibb was clearly shaken by the experience of being knocked off his bike, particularly when it happened by a 4WD. It is common experience that such an accident would leave a cyclist ‘rattled’, at the very least for a short period of time after the impact.
55. I also note that Mr Gibb is an unsophisticated man with an obviously excitable demeanour, which I saw firsthand in the witness box. Given my observations of his responses to a very civil cross examination, I am not surprised that he was unable to respond rationally to the driver’s enquiry of him, or of the offer to call an ambulance.
55․His Honour found at [61]-[62] of the reasons:
61. Whilst previously included in his description to the police and/or in his very first statement, I find it is more probable than not that Mr Gibb was experiencing an emotional shock for a short period after he had been knocked off his bike.
62. I find that Mr Gibb’s failure to obtain the numberplate details from the 4WD was primarily as a consequence of him not appreciating the extent of his injuries but also, to a lesser extent, as a result of his own peculiar personality traits and the psychological impact of the accident which caused him to react poorly to the driver of the 4WD.
56․His Honour referred to Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 (Meakes) and The Nominal Defendant v Ross [2014] NSWCA 212; 87 NSWLR 238 (Ross). His Honour observed that the plaintiffs in both cases were, unlike Mr Gibb, “highly sophisticated” and found that the factors peculiar to Mr Gibb must be taken into account. His Honour noted that the difference as between Mr Meakes and Dr Ross was that Mr Meakes’ injuries were apparent to him as he limped from the scene. Dr Ross made an assessment at the time of the accident that his injuries were “trivial”.
57․The Special Magistrate distinguished the outcome in Meakes from the respondent’s circumstances on the basis that “Mr Meakes was not only a highly sophisticated litigant, but he was aware of the significant injury but departed the scene in his rush to attend his important legal meeting”.
58․His Honour concluded at [79] of the reasons:
…Mr Gibb is a much less sophisticated litigant than Mr Meakes or Dr Ross. While there was a longer period of opportunity for him to obtain the details of the numberplate of the 4 which had knocked him off his bike, his subjective characteristics and the effect of having been knocked off his bike put him in effectively the same position as plaintiff in Ross (sic).
59․The Special Magistrate ultimately concluded that the vehicle in the accident on 20 December 2019 was an unidentified vehicle within the meaning of s 62 of the Road Transport Act.

The appeal

60․The appellant identified that the Special Magistrate made several “uncontroversial findings” not the subject of challenge. Those findings were:
(a)there was no dispute that the accident occurred or that a motor vehicle was involved;
(b)the respondent did not obtain the details of any person at the scene, including the driver of the vehicle that struck him;
(c)the respondent did not obtain the registration details of the motor vehicle that struck him or of the two motor vehicles which stopped at the scene to provide assistance; and
(d)that the issue between the parties was whether the respondent had made “reasonable enquiry” at the time and in the immediate aftermath of the collision.

Ground (a): The Special Magistrate erred in rejecting (if he did so reject) the opinion of Dr Lowy to the effect that the Respondent remained capable of reasoning and decision making at all relevant times

61․In her report, Dr Lowy concluded:
I consider that Mr Gibb retained the capacity to record in at least photographic form or to request that someone else record for him, the registration of the unknown vehicle in the period after the accident up until he walked away from the scene.
62․While the reasons of the Special Magistrate do not include an explicit rejection of the evidence of Dr Lowy, implicit in the determination he made was a rejection of the opinion that she expressed that the respondent was able to reason and make decisions in the immediate aftermath of the collision and accordingly, make enquiry with respect to the vehicle. The appellant complained that the Special Magistrate did not express a basis for rejecting Dr Lowy’s evidence.
63․The appellant argued “it was incumbent on his Honour to subject this particular difference of opinion between the two experts to rational analysis to determine whether one expert should be preferred, and to make appropriate findings”: Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay [2009] NSWCA 221; 53 MVR 273 at [70]. Further the appellant relied on Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] where it was observed that “the parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other”, submitting that the Special Magistrate did not grapple with the difference as between the experts.
64․Central to the error alleged is the Special Magistrate’s approach to the respondent abandoning his bicycle at the scene and later returning to collect it.
65․Dr Lowy said that the respondent “was able to self-diagnose that he was uninjured and that his bike was significantly damaged and thus should not be repaired due the cost involved”. In evidence the respondent said with respect to the bicycle:
The back wheel was completely buckled, destroyed and I said to myself, ‘this will cost me more to get fixed than it’s worth’. The bike was given to me by a friend, so I disregarded the pushbike, in frustration threw it into the gutters and walked off.
66․In the respondent’s affidavit he stated that he threw his bicycle in the bushes as he “didn’t want to pay for it to be repaired”. In the June statement, the respondent stated:
My bicycle’s back wheel was bent so I pushed it towards the hedges lining the driveway in frustration.
67․The Special Magistrate concluded at [52]:
…the fact that he subsequently went back to the scene in an attempt to recover the bicycle confirms in my mind that there was no contemplation as to the cost of repair of the bicycle.
68․The appellant contended that this finding erroneously informed the Special Magistrate’s conclusion as it directly contradicted the respondent’s own evidence as well as defying the “apparent logic of events”. The appellant submitted that the respondent’s return to the scene to recover his bicycle did not demonstrate that at the time of the collision he did not contemplate the cost of repairing the bicycle. The appellant further submitted that the respondent becoming frustrated and pushing his bicycle into the bushes in the immediate aftermath of the collision, did not exclude the possibility that he contemplated the cost of repairs.
69․The responded said in the June statement “at the time I was in shock and did not think I had any injuries. I remember thinking I was lucky to be alive”. The respondent also said in evidence “when it happened, I thought ‘holy hell you could have been killed then’ and I had a bit of bark of my shoulder and that’s all I thought of”.
70․The respondent submitted that the abandonment of the bicycle did not represent him making a considered value judgement or what was described as a “commercial” assessment. The respondent submitted that while it may have been “logical and rational” for him to have considered the cost of repairs, such a conclusion rests on the assumption that he was capable of logical and rational consideration in the immediate aftermath of the collision, which, he submitted, the expert evidence demonstrated he was not.
71․The respondent embraced the Special Magistrate’s finding at [52] that his evidence about the cost of repairs to the bicycle was a “hindsight justification” and did not reflect his thinking at the time of the collision. That finding, the respondent argued, did not rely on a credibility assessment of him but rather was a view of the evidence his Honour was entitled to take.
72․His Honour’s finding that the abandonment of the bicycle did not occur because the respondent contemplated a commercial assessment underpinned his implicit rejection of Dr Lowy’s evidence. The appellant contended that this finding was inconsistent with the evidence of the respondent and that in any event, Dr Lowy’s opinion was based on more than just the respondent’s treatment at the scene of his bicycle.
73․While there is some merit in the complaint that the Special Magistrate did not engage in substantial analysis of the difference as between the experts, I am not persuaded that had he done so, Dr Lowy’s evidence would have been accepted and the Special Magistrate would have “at least found that any shock experienced by the respondent was not such that it rendered him incapable of taking the simple step of obtaining the registration details of the other vehicle at the relevant time”.
74․The appellant is right to highlight that the bicycle was only one of the factors referred to by Dr Lowy, but there are several other considerations that influenced whether the conclusion she expressed ought to have been the expert opinion relied upon. The Special Magistrate accurately identified that in the earliest police reports by the respondent of the incident he did not state that he assessed the cost of repairs to the bicycle when he discarded it.
75․Dr Adams considered the respondent’s action in abandoning the bicycle did not involve a “commercial assessment” or rational decision making. Rather, she considered it was an action in keeping with the respondent acting reflexively to the damaged bicycle that he was able to immediately observe, suggesting the respondent’s thought process was “I want to get out of here as quickly as possible, I am irritated, I am angry, my bike is broken and I have just got to go”.
76․Dr Lowy did not examine or speak with the respondent directly in preparing her report or prior to giving evidence, nor had she read the transcript of the respondent’s oral evidence in the proceedings. Dr Lowy was confident that these circumstances did not undermine her capacity to express an opinion when she had access to the respondent’s written statements. Dr Lowy did agree with Dr Adams that the respondent would have been “shocked and shaken” following the accident. Dr Lowy accepted that the respondent experienced a life-threatening situation that would have been a “complete fright”.
77․There were relevant differences as between the expertise and experience of the doctors. Significantly, Dr Adams was a consultant psychiatrist who specialised in trauma related disorders, Dr Lowy did not. Dr Adams also described that prior to her psychiatry training she was an emergency physician. Dr Lowy described some experience with trauma patients.
78․Dr Lowy did not accept that the respondent’s assessment that he was not injured when he had suffered a fracture in his hand and a torn ligament in his knee was an indication of “confused” thinking or a “level of distraction from reality”. Dr Adams disagreed and described circumstances she had experienced in the emergency room whereby a person would suffer a trauma and because they are “discombobulated and upset… their minds aren’t able to kind of perceive their bodies”. She considered that the respondent was “discombobulated” after the collision.
79․There was no challenge to the respondent’s evidence as to timing. He estimated that between 90 seconds and 2 minutes passed from the moment of impact before he got up from where he landed, picked up his bicycle, pushed it into the hedge and began walking away. The respondent estimated that a further 90 seconds to 2 minutes passed when he received a phone call, by which time he was about 100 metres from the scene. He estimated that from the moment of impact until the time he looked back to see the vehicle had left the scene, about eight minutes passed. The respondent was unable to say when within the eight-minute period, the vehicle left the scene.
80․The appellant maintained the submission made before the Special Magistrate; the respondent made “practical and economic decisions” when he threw the bicycle away, having determined it was not worth the cost of repairs, and that decision was indicative of his capacity to engage in rational thought processes.
81․The evidence demonstrated that the respondent’s treatment of his bicycle was influenced by two factors. First, that he did not want to pay for repairs to the bicycle. Secondly, that the bicycle was “buggered” and could not be ridden home. The first factor was influenced by another piece of unchallenged evidence; the bicycle was a gift from a friend and had cost the respondent nothing. Any damage to the bicycle, in this case a “completely buckled” back wheel, represented a cost beyond that which the respondent had incurred to obtain it. The decision by the respondent to abandon the bicycle because it was not “worth” repairing did not require a considered commercial assessment based on “practical and economic” decision making. The bicycle cost him nothing, a repair to a “buggered” bicycle would necessarily cost him something, being more than had outlaid to obtain the bicycle.

82․The bicycle was not able to be ridden so it no longer offered to the respondent a method of transport. The appellant was right to submit that the respondent’s act in pushing the bicycle into the bushes did not exclude that he was frustrated by the circumstances he was presented with in the immediate moments after the collision. Indeed, the evidence demonstrated that he was. Dr Adams’ evidence was that those immediate reactions were occurring when the respondent was in a state of shock. Dr Adams explained that actions occurring within that state could appear to be seemingly “rational” decisions.
83․There was no challenge to the proposition that the respondent had just been involved in what he perceived to be a life-threatening collision and was “shocked and shaken”. His decision to abandon the bicycle undoubtedly occurred within minutes of that event. That his assessment of the bicycle’s worth was not the result of “practical and economic” decision making did find support in his later return to the scene to try and collect it.
84․The respondent described returning to the scene to retrieve the bicycle in his affidavit. He was not asked further about it in evidence nor was he challenged about it. His return in an attempt to retrieve the bicycle was a fact from which an inference could be drawn. That attempt revealed a retreat from his decision to abandon it. Dr Adams considered his return to retrieve the bicycle reflected the respondent being in a “more rational state of mind”. Dr Lowy did not offer a view about the respondent’s return to retrieve the bicycle and what it said, if anything, about his decision to abandon it at the time of the collision. Dr Lowy considered the assessment made by the respondent not to repair the bicycle was a rational, “practical and economic” decision made by the respondent.
85․It was not until the respondent gave evidence that he referred to assessing the cost of repairs to the bicycle by reference to what it was “worth”. The 24 December 2019 police report recorded that the bicycle could not be ridden. The June statement made no reference to repairs, rather stated that “the back wheel was bent so I pushed it towards the hedges lining the driveway in frustration”. The affidavit stated that the respondent saw the back wheel was damaged and could not be ridden. The affidavit also recorded that the bicycle was given to him by a friend “for free” and that the respondent was “distracted and frustrated surveying the damage and thinking about the cost of repairs”. The reference to the bicycle being a gift was not expressed as the respondent having contemplated that fact while he noticed the damage to the bicycle and thought about the cost of repairs.
86․The Special Magistrate was entitled to consider the content of the initial report by the respondent, the affidavit, the June statement, the evidence of Dr Adams and the evidence given by the respondent in the proceedings. In doing so, his Honour formed the view that the respondent’s reference to an assessment of the cost of repairs was a “hindsight justification” rather than an indication of the thought processes he in fact engaged in at the time he discarded the bicycle. That view was the result of the task required of the Special Magistrate to consider and weigh the evidence. An assessment of the evidence revealed not only that the finding was open to the Special Magistrate, in my view, it was correct.
87․Like the Special Magistrate, I consider the subsequent return to collect the bicycle on 22 December 2019 by the respondent undermined the strength of the characterisation of his initial assessment at the scene as a “practical and economic” commercial decision.
88․Another factor referred to in Dr Lowy’s evidence that she considered demonstrated that the respondent was not suffering shock to the extent described by Dr Adams, was his assessment of his “state of well-being”. The evidence undoubtedly established that the appellant made some assessment of his physical state. He refused the assistance of an ambulance. He gave evidence that he assessed his injuries to be “minor” or “trivial”.
89․The evidence also established that the assessment he did make as to his state of well-being before the vehicle left the scene was erroneous. On the evidence, the respondent undoubtedly underestimated the physical affects upon him of the collision with the motor vehicle. The respondent described coming to realise his injuries in the following way:
Well, after a while once I’d sat down and the shock had sort of settled down I started to feel the pain, the pain started to come through. The pain at the time was ‘oh Jesus. Jesus, oh’. And then later on, ‘oh, oh’. And then also, as I said, I went home and had a shower, lay down and had a sleep, woke up feeling terrible. My knees had swollen, my hand was sore, my back was sore through the thing. I proceeded to the Calvary hospital.
90․The appellant characterised Dr Adams’ analysis as “illogical, unnecessarily complex and artificial” and submitted that the actions engaged in by the respondent in the immediate aftermath of the collision were inconsistent with her opinion as to his incapacity to take the details of the driver of the vehicle.
91․It became clear during her evidence that Dr Lowy, in preparing her report, had not appreciated that the respondent was struck by the vehicle from his left and that prior to being struck that he had not been able to see any vehicles to his left. Dr Lowy conceded that the collision in those circumstances would have been “entirely unexpected” by the respondent. In response to the proposition that after the collision the respondent “got up and walked away and he got a phone call from somebody and when he went to answer the phone he then realised that he’d had an injury to his hand”, Dr Lowy replied, “I didn’t know that, I mean that’s certainly new to me”. Upon considering that new evidence, Dr Lowy did not accept that the respondent was “distanced from reality” because:
…he made various decisions, he was irritable, he noticed the damage to his bike, he realised he couldn’t ride the bike home. He said he became distracted and frustrated. He then surveyed the damage to his bike, he didn’t want to pay repairs. So, you know, it's difficult to accept that he was distracted from reality, as you say, as you ask me to accept.
92․Dr Adams’ analysis accounted for the respondent’s initial assessment that he had suffered no more than minor injuries and was “alright”. She concluded that the respondent’s failure to grasp the extent of his injuries in the time proximate to the collision did reveal “distraction from reality”. Dr Adams’ explained how a person could be “discombobulated” after a trauma and not perceive the state of their body accurately. The respondent, Dr Adams said, in the minutes following the accident, behaved consistently with patients she had observed who after a trauma are “not able to make great decisions about themselves”.
93․Dr Lowy’s analysis did not account for the difference between the respondent’s initial assessment of his level of injury and his actual injury. Dr Lowy pointed to the respondent being capable of recognising that he was “relatively uninjured” as demonstrative of his ability to retain the capacity for rational thought. Dr Lowy did not attach any significance to the failure by the respondent to appreciate in the minutes after the collision, the extent of his injuries including a fracture to his hand that required surgery.
94․In contrast, Dr Adams’ evidence did offer explanation for why the respondent inaccurately assessed the extent of his injury. She said in evidence:
You know, you’ve got adrenaline running coursing through your system, which means you don’t feel pain as much as you normally would and it is actually quite common for people to be in accidents, be quite injured, but not to have all the pain and signals that alert you to the fact that you have an injury, to come flooding back several hours later. So, you know, in hindsight, he – you know, it was the – he didn’t need an ambulance but that doesn’t mean that he made a rational decision not to involve the ambulance service.
95․While Dr Lowy accepted that the respondent had been involved in a frightening, life-threatening event and that he would have been “shocked and shaken”, there was no explanation as to the possible effect, if any, of that upon him in her assessment of his actions, except to say he did not suffer “nervous shock”.
96․Dr Lowy explained that “nervous shock” is the same as “shock” or “psychological shock”. Dr Adams did not cavil with this explanation though clarified she used the term “nervous shock” to distinguish it from “shock” which she identified can be a medical term used after a loss of blood. Dr Adams confirmed she was referring to psychological shock when she employed the term “nervous shock”.
97․Dr Adams disagreed with the proposition that irrespective of whether the respondent experienced shock he “still possessed the ability for rational thought” stating:
No. I suppose, you know, it’s these definitions of rational thought. He was in a place, because of his psychological experience and trauma response from his early age and all the other things that were going on in his life, that he wasn’t able to kind of fully use that rational thinking part of his mind.
98․Dr Adams considered against the background of her assessment of the respondent and the collision, that he required “a few minutes to be able to collect his thoughts and restore his psychological equilibrium”. This is a view consistent with the respondent’s account of what happened. It is also, as the Special Magistrate observed, consistent with common sense and life experience.
99․There was no challenge to the evidence that the respondent was hit by the vehicle which he did not see coming and was thrown from his bicycle before landing on the road. The respondent’s evidence was that it was not until he sat down and the shock had “settled down” that he began to appreciate that he was in more pain than he initially realised. This was not an incredible account. It was consistent with his refusal of the assistance of an ambulance, and his request to the driver of the vehicle to “leave him alone”. It was consistent with the medical opinion offered by Dr Adams. Dr Adams described the respondent’s refusal of medical assistance and requests to be left alone, in circumstances where he was in fact injured, as “not fully rational”.
100․The appellant sought to highlight that the respondent did not directly connect his experience of “shock” to his failure to obtain the details of the driver or the vehicle involved in the collision in his affidavit or the report he made to police. The respondent did attest in the affidavit to being “in shock” and not identifying that he had any injuries at the time of the incident. Further, the police reports were cursory in nature and not recorded in long narrative form. They were not versions adopted by the respondent at the time they were made. The police officer who made an entry into his notebook of his interaction with the respondent was not called as a witness. In my view, there was little to be drawn from the detail, such as it was, of the reports to police.
101․The appellant’s submission that an acceptance of Dr Adams’ opinion required the court to ignore the actions the respondent did engage in, lacked nuance. There is strength to the submission that much of the action engaged in by the respondent was reactive to the circumstances that unexpectedly confronted him; his immediate response was to attend to himself and to his own property, he responded to basic requests made of him by the driver of the unidentified vehicle and those seeking to assist him, he answered an incoming phone call. It was when the respondent went to answer the phone call that he began to realise that his right hand was not functioning properly. Dr Adams agreed the respondent answered questions at the scene and said:
…what he told me, when I was interviewing me (sic), he said “Go away, I’m all right”, and at that time he said he’d had a fright and he was irritable, and I think his brain was in that fright flight mode, you know, he had adrenaline coursing through his system, and he was just in self-preservation frame of mind and not in a thinking about – even thinking about what’s happening to my body frame of mind.
102․Dr Adams concluded that the respondent was acting on reflex and instinct and not employing his frontal lobe when he was engaging in actions; the frontal lobe being slower to respond. She gave the example of a person stepping out of the way of a bus and said:
Because if I use my frontal lobes to make a rational decision then, you know, I’d be cleared up by the bus. So there are different levels of response and, you know, to get up off the road after you’ve been knocked to the ground by the car is rational when we think about it, but we’re not thinking – we’re not using our rational parts of our brain to do it, it’s just a self-preservation thing to do.
103․In Dr Adams’ view, the respondent remained in “fight and flight” mode “for quite some time”, concluding:
So he didn’t have that much time to bring himself together, and I think it’s very reasonable to account for it by saying he still wasn’t thinking clearly because of the big shock that he’d had, the near death experience he had.
104․Dr Adams did not consider that the respondent’s capacity to have observed and retained some detail was inconsistent with him experiencing a level of shock which undermined his capacity for rational decision making, explaining that people who experience near death situations can have “cinematic recall of the details of the incident, but that doesn’t mean that the other trauma – psychological symptoms – aren’t there”. Dr Adams considered that in the moments after the collision the respondent had the capacity to “observe” and therefore take in some detail, but not to “reflect” or do more than “react”. The respondent was merely “reacting” when he responded to enquiries made of him at the scene. Dr Adams accepted the proposition that the effect of shock could dissipate as time passed and that a person could “make seemingly rational decisions when you still are in a state of shock”. Dr Adams said that irritability could be a symptom of shock. Dr Adams concluded that taking the details of the driver and the vehicle would have involved more than “reacting” and the respondent was not capable of doing more than that in the minutes after the collision, stating:
On one level, he could do things, but to be able to think about and weigh up and reflect on things, no, at that stage he wasn’t able to do those things.
105․Dr Lowy said it was her experience that irritability was not “usually evidenced or demonstrated in a scene of shock”. She described shock as “fluctuating in duration” depending on the person and the injury. Dr Lowy concluded that the respondent experiencing feelings of annoyance and irritability “belies that he thought he had a serious injury”. The evidence demonstrated that the respondent did not think he had a serious injury in the minutes after the collision. It is why he refused an ambulance or any assistance. Dr Lowy’s evidence in that respect is difficult to reconcile; she was plainly wrong about what the respondent assessed with respect to his injuries. Dr Lowy gave evidence that she “did not really agree” with Dr Adams as it was “not really” how she saw it. She maintained that the respondent “in some way” would have been able to record the details of the motor vehicle.
106․The appellant submitted that Dr Adams’ reference to the “reptile brain” was not a reference that could be found in “any of the authorities”. So much may be true. The context of that reference saw it properly understood as Dr Adams explaining that once in a state of shock, the respondent was operating on instinct or reflex to the circumstances that he unexpectedly found himself in. Many of the authorities to which I was taken do consider the effect of shock on claimants, like the respondent, seeking to establish “due” or “proper” inquiry and search. The reference to “reptile brain” was a refence to the primal or instinctive part of the brain that is known to underpin self-preserving behaviour. It was offered by Dr Adams as explanation for how the respondent could be in the state of shock she assessed him to be and nonetheless appear to be making rational decisions. The reference was not a basis to reject Dr Adams’ evidence.
107․On a review of the evidence, based on the above analysis, the evidence of Dr Adams was to be preferred where it differed from the expert opinion of Dr Lowy. Dr Adams’ analysis explained aspects of the respondent’s evidence unexplained on the analysis of Dr Lowy. Dr Lowy was inaccurate in her analysis of some of the evidence and had not appreciated aspects of the respondent’s version when coming to her concluded view. I do not consider that the Special Magistrate erred when he implicitly rejected Dr Lowy’s evidence.
108․This ground of appeal has not been established.

Ground (b)(1): The Special Magistrate erred in finding that the Respondent’s failure to obtain the requisite number plate details from the 4WD was primarily a consequence of him not appreciating the extent of his injuries

Ground (b): The Special Magistrate erred in finding that the Respondent’s failure to obtain the requisite number plate details from the 4WD was to a lesser extent a result of his own peculiar personality traits and the psychological impact of the accident which caused him to react poorly to the driver

109․It is convenient to deal with these grounds together.
110․The Special Magistrate found at [61] of the reasons that:
While not previously included in his descriptions to the police and/or in his very first statement, I find it is more probable than not that Mr Gibb was experiencing an emotional shock for a short period after he had been knocked off his bike.
111․The appellant submitted that this finding is “imprecise and unclear” and observed that neither of the expert witnesses used the term “emotional shock”. The appellant argued that the finding did not resolve whether the respondent remained capable of rational thought and decision making while experiencing it. Similarly, the appellant contended that the finding did not define what his Honour meant by “a short period” leaving open the prospect that the respondent may have recovered from his “emotional shock” prior to discovering that the vehicle had left the scene of the accident.
112․The respondent submitted that the Special Magistrate’s finding at [61] must be read in conjunction with [62]. The respondent identified that the Special Magistrate’s prime reason for finding the respondent did not obtain the relevant information was his failure to appreciate the extent of his injuries in the minutes that followed the accident. The respondent submitted that the “short period” is the period referenced from when the respondent was knocked off his bicycle to when he later looked back at the scene to discover the vehicle had departed the scene.
113․The use of the term “emotional shock” was unhelpful and had not been employed by either of the experts. That said, it was tolerably clear that the experts, by their own use of the term “shock”, intended to capture a psychological impact upon the respondent of the collision. There was no meaning beyond that use behind Dr Adam’s use of the term “nervous shock”; made clear when she clarified her use of the term in evidence.

114․In circumstances where the expert evidence established that a reference to “shock” was a reference to the psychological effect of the collision on the respondent, I do not consider the Special Magistrate’s use of the term “emotional shock” to be of any consequence such that it reveals material error. The finding was not inconsistent with the use of the term common to both experts.
115․It is also plain that the finding his Honour made that the shock continued for a “short period” is plainly a reference to the period the parties had agreed was critical for the purposes of his Honour’s determination, being the minutes between the collision and the respondent’s discovery that the vehicle was gone from the scene.
116․The appellant complained that error was made with respect to the following further findings:
(a)the respondent did not appreciate the extent of his injuries;
(b)the respondent’s peculiar personality traits; and
(c)the psychological impact of the collision caused him to react poorly.

117․First, the failure by the respondent to appreciate the extent of his injuries.
118․It was submitted that his Honour ought to have first addressed what the respondent did appreciate and then move to consider anything that he did not appreciate. The reasoning employed by the Special Magistrate was said to lack “the relevant foundation” for the ultimate conclusion to be drawn as to what he was able to appreciate about the circumstances and the extent of his injuries.
119․The finding that the respondent did not appreciate the extent of his injuries was supported by the evidence. That the respondent perceived the event to be life threatening was not undermined by his assessment that his injuries did not require the assistance of an ambulance or indeed, anyone at the scene. That the incident had the potential to be life threatening did not require the respondent to have in fact suffered life threatening injuries. The respondent’s evidence that he appreciated the incident to be “serious” did not translate into him also appreciating that he had, in turn, suffered serious injury.
120․The unchallenged evidence points the other way and Dr Adams’s opinion provided rationale for how it was the respondent suffered a fracture in his hand and a torn ligament in his knee without realising he was injured to that extent.
121․The respondent’s evidence that he noticed some “bark scraped” off his shoulder and back, and that his knee felt “not right” did not cast doubt on his assertion that he considered any injury, to be minor. Dr Adams explained the effect of adrenaline on the experience of pain and the perception of the body. This explanation was consistent with what the respondent described in terms of his realisation of pain once the shock “settled down”. The refusal of assistance at the scene, the realisation moments later upon his use of his right hand to answer the incoming phone call and his later attendance upon a medical facility are all consistent with the respondent failing to appreciate the extent of his injuries in the time between the collision and when he noticed the vehicle had left the scene.
122․The actions engaged in by the respondent reflective of what he did appreciate included:
(a)getting up off the road;
(b)refusing assistance;
(c)making some observation of the people and the vehicles around him;
(d)abandoning his bicycle; and
(e)answering a phone call.

123․There was no challenge to the fact of the occurrence of these actions. Those actions revealed that the respondent appreciated that he had been knocked from his bicycle by a four-wheel drive driven by man, that he did not require an ambulance or any other assistance, that his bicycle was damaged and could not be ridden and that his phone was ringing. The respondent was, on any view, wrong about the extent of his injuries and his need for medical assistance.
124․The actions engaged in by the respondent did not undermine the evidence that established he did not appreciate the extent of his injuries. A view supported by the expert evidence of Dr Adams. The evidence demonstrated that it was not until he went to answer the incoming phone call somewhere between three and four minutes after the collision that the respondent realised that his thumb was bleeding and his right hand was not functioning properly. When next he turned to look at the scene, no more than eight minutes after the collision, the vehicle was gone. There was no error in the finding that the respondent did not appreciate the extent of his injuries in the time between the collision and his realisation that the vehicle was gone.
125․Further, there was evidence that the failure by the respondent to appreciate the extent of his injuries was the reason he did not collect details from the driver. In the June statement the respondent stated, “I did not know I had an obligation to obtain the contact details of the driver of the 4WD”.
126․In the June statement the respondent stated that he considered his injuries to be “trivial”.
127․In evidence the respondent was taken to that statement and gave the following evidence:
Mr Wilson: But you knew, sir, that if you ever wanted to get in contact with that particular driver you would have to get his details. You must have known that?
Respondent: I did not think my injuries were severe enough to get that information, also to go to the hospital.
Mr Wilson: So, are you now---?
Respondent: ---At the time---
Mr Wilson: ---saying, sir, you ---?
Respondent: --- At the time of the accident when I think I went into shock.
Mr Wilson: Are you now saying, sir, that it is because of the nature of your injuries that you decided not to get his details? Is that what you are saying now, is it?
Respondent: I did not think my injuries were severe to warrant any more information.
Mr Wilson: So if you had thought they were severe enough ---?
Respondent: --- If I ---
Mr Wilson: --- do you agree that ---?
Respondent: If I was in the right ---
Mr Wilson: ---you would have been capable of getting his details?
Respondent: If I was in the right mind at the time, I possibly would have been able to. If I was in the right mind that I wasn’t shocked, laying on the road thinking, ‘What the hell just happened?’
Mr Wilson: My proposition to you sir, is that your injuries were -- you knew that you had suffered at least some injury, hadn’t you at that stage?
Respondent: Minor injuries, yes.
Mr Wilson: And you knew, sir, that if you want to ever get in touch with that particular driver about those minor injuries you have to get his particulars?
Respondent: Minor injuries
Mr Wilson: That ---?
Respondent: I’m not a whinger
Mr Wilson: That was the only way you were going to be able to get in touch with him wasn’t it? You would have to take his particulars at the scene. You knew that didn’t you?
Respondent: Not at the time. Later on I – after being to the police, the police told me that they could find out possibly who was registered at the art centre that period of time.
Mr Wilson: Yes?
Respondent: So the answer to your question is, no, I should’ve - no I didn’t get his information, no, I didn’t think it was warranted and, no I think personally that I was in shock because it is something that I have not encountered before. Please.
128․This evidence was not inconsistent with what he was recorded as telling police on 24 December 2019 that he “thought he was okay so didn’t exchange details” and again on 5 February 2020 when he was recorded as reporting to police that he was “hurt but didn’t feel too bad”. The respondent feeling “hurt” was not inconsistent with the nature of the injury he initially perceived which he assessed to be “minor” in nature. As was observed in Ford v Nominal Defendant [2023] QCA 83; 104 MVR 122 (Ford) per Applegarth J (with whom Morrison JA and Gotterson AJA agreed) at [55]-[56]:
55. One cannot necessarily equate the experience of pain with the existence of an injury, let alone with knowledge of injury. For instance, participants in contact and non-contact sports, who are jolted or jarred, may feel pain without the pain being the result of an injury.
56. The possibility that pain is due to an injury, as distinct from physical contact or other force, does not mean that the person who experiences pain knows or believes that he or she has been injured.
129․The respondent describing an appreciation of “hurt” or “pain” shortly after he was thrown from his bicycle and landed on the road with his knees taking the brunt of the impact, did not mean that he immediately appreciated that he had anything other than the “minor” or “trivial” injuries he assessed them as. That his knee or knees were painful was unsurprising given the nature of the impact he described. His knee feeling “not right” was not inconsistent with pain one would expect to suffer after that kind of impact, that would subside without having caused injury. The respondent did not realise he was bleeding until he went to answer the phone call from his nephew. Likewise, he did not realise his thumb was not functioning properly until that moment. It was upon answering the phone and turning back to the scene that he realised the vehicle was gone.
130․These circumstances, it must be observed, are all consistent with the respondent’s initial response to the driver of the vehicle that struck him and to those voices he heard from two other people seeking to assist him, that he was “alright” and to “leave him alone”.
131․The respondent’s evidence was consistent with a gradual realisation from the moment that he answered the phone that the pain he initially felt was not subsiding and in fact, was getting worse. By which time the vehicle that struck him and those seeking to assist him, had gone. The evidence demonstrated that up until the point that the respondent answered the phone call and turned back to look at the scene to discover the vehicle was gone, he considered that any injury which he may have suffered was trivial.
132․The evidence established that the respondent failed to appreciate the extent of his injuries during the period he could have recorded the details of the vehicle. His failure in this regard was the primary reason he failed to record the details of the driver and the vehicle. In this respect, there was no error in the finding made by the Special Magistrate.
133․I turn now to consider the finding with respect to the “peculiar personality traits”. The appellant contended that the reference to the respondent’s “own peculiar personality traits” is both unclear and problematic. The appellant submitted that it would be impermissible for his Honour, if he did so, to link his finding that the respondent was an “unsophisticated man” with a related finding of “an inability to respond rationally to the driver’s enquiry of him”. The Special Magistrate’s reasons do not explain the details of this reference.
134․There is merit in the complaint that the finding was not the subject of clear explanation. Various references were made by the Special Magistrate that might have underpinned the finding; the respondent having an “excitable demeanour” in the witness box and being an “unsophisticated litigant with a limited vocabulary”.
135․Notwithstanding those references, the finding as to “peculiar personality traits” was imprecise. There was some reference in the reasons to matters Dr Adams canvassed in her report about the respondent’s developmental history and personal circumstances at the time of the collision. Again, it was unclear whether his Honour intended by his finding to capture those matters. Dr Lowy did not take a background history from the respondent.
136․There was a basis in the evidence to determine the respondent’s development history influenced his reaction to the collision. Dr Adams’ report included this conclusion:
Mr Gibb was exposed in his childhood to a controlling and punitive atmosphere, a traumatic loss of his brother in a young age, with a family whose response to trauma was to ignore it. He then went into a career path where he was immersed in ‘masculine culture’, of being tough and not complaining. He is not someone who is used to asking for help, nor expecting it. This needs to be considered why he did not take details at the time from the 4WD driver who crashed into him.
At that time the four-wheel drive collided with him he was also in shock, having just had a near-miss death experience. His response to this was irritation and most likely a prickly protectiveness of his health and his bicycle meaning that he not immediately appreciate the need to take details, during which time the 4WD exited the scene.
137․In her evidence, Dr Adams referred to the respondent’s “psychological experience and trauma response from his early age” and described him as a person who, because of his negative childhood experience, pushed help away when he required it. She considered this explained his irritability and his revert to “stiff upper lip” behaviours evidenced by his “I’m okay, just leave me alone” which she considered as not “fully rational”.
138․The appellant submitted that his Honour’s reference to the “psychological impact of the accident” and its subsequent impact on his response to the driver is erroneous. His Honour did not clarify what he meant by psychological impact and whether this is a reference to his finding that the respondent experienced “emotional shock”.
139․When the reasons are read fairly and in their entirety, the reference to the “psychological impact of the accident” can only be a reference to the finding that the respondent experienced an “emotional shock for a short period”. The inconsistent use of terminology and the failure to identify precisely the nature and extent of the “emotional shock” was unhelpful. Nonetheless the reference to “psychological impact” undoubtedly and correctly encompassed the evidence of the respondent when he described being “shocked and shaken” and the evidence of Dr Adams when she concluded that the respondent was affected by shock in the minutes after the collision up until he realised that the vehicle had departed the scene, which undermined his capacity for rational decision making.
140․His Honour was entitled to consider the “excitable demeanour” of the respondent as he gave evidence and entitled to conclude that the respondent was an “unsophisticated litigant”. The evidence also demonstrated that the respondent’s development history more likely than not, influenced his reaction to the accident and the subsequent offers of assistance from the driver of the vehicle. That developmental history as Dr Adams explained, made the respondent more likely to have refused offers of assistance and be driven by a desire to escape the scene, in circumstances where he was in shock and acting instinctively as a result.
141․The reference to “peculiar personality traits” while poorly expressed, in substance was a reference to the respondent’s subjective circumstances. The reference to “psychological impact” while expressed imprecisely and inconsistently with other terminology in the reasons, was a reference to the state of shock the Special Magistrate was correctly satisfied the respondent experienced, in the “short period” after the collision up until he realised the vehicle had left the scene; being the period within which the vehicle could have been identified.
142․The determination that those factors led the respondent to “react poorly” to the driver of the vehicle can only be a reference to the respondent’s request to the driver to be left alone and his refusal of assistance. In reacting poorly to the driver, the respondent failed to interact with him to obtain the identifying details of the vehicle.
143․The Special Magistrate correctly determined that the respondent failed to appreciate the extent of his injuries and that this was the primary reason he failed to obtain details from which the vehicle could be identified. He also correctly accepted Dr Adams’ evidence as to the effect of the respondent’s development history upon him and relied upon her conclusion that the respondent’s state of shock undermined his capacity for rational thought, to an extent that he was unable to obtain details from which the vehicle could be identified.
144․The finding his Honour made, necessarily grappled with the respondent’s statement that he did not obtain the details of the vehicle because he did not know he had an obligation to do so. In finding as he did, the Special Magistrate accepted that the respondent’s statement was informed by the evidence he gave about his realisation of the extent of his injuries and the obligation to obtain the details in those circumstances. It was a finding also reasonably informed by the assessment the Special Magistrate made that the respondent as an “unsophisticated litigant” when he observed him give evidence.
145․That the factors referred to in the finding at [62] of the Special Magistrate’s reasons were operating to a greater or lesser degree alongside of each other was a conclusion the Special Magistrate was entitled to reach and was correct. The conclusion that the respondent’s failure to appreciate the extent of injuries was the primary reason he failed to obtain the details of the vehicle or the driver was open on the evidence and in my view, was correct.
146․The conclusions challenged in appeal grounds (b) and (b)(1) were not errors. The appellant has not established either ground of appeal.

Ground (c): The Special Magistrate erred by effectively deciding whether it was understandable and excusable for the Respondent not to have recorded the registration details immediately after the accident rather than instead deciding whether the respondent had proven that the identity of the vehicle could not be identified after reasonable inquiry and search (within the meaning of s 62(1)(a) of the Road Transport Act).

Ground (d): The Special Magistrate erred by failing to find that the Respondent had not proven that the identity of the vehicle could not be identified after reasonable inquiry and search (within the meaning of s 62(1)(a) of the Road Transport Act).

147․The parties addressed grounds (c) and (d) globally. For convenience I will consider them together.
148․The respondent bore the onus of establishing that the identity of the vehicle could not be identified after reasonable inquiry and search. The appellant submitted that the respondent failed to establish this and his Honour erred when he determined the ultimate question. The appellant submitted that the Special Magistrate approached the ultimate question by instead considering what was “understandable and excusable” in the circumstances. The appellant contended that [61] and [62] of the Special Magistrate’s decision revealed the error in his Honour’s approach.
149․It was submitted that the Special Magistrate applied an “almost entirely subjective test” to the question that was before him in circumstances where the relevant authorities make it plain that the test has an objective component (Meakes, Blandford v Fox (1944) 45 SR (NSW) 241, Cavanagh v Nominal Defendant (1958) HCA 57; 100 CLR 375 (Cavanagh)).
150․It is useful to return to the relevant provision:
S 62 What is an unidentified motor vehicle?
(1)In this Act:
“unidentified motor vehicle” –
(a)means a motor vehicle that cannot be identified after reasonable inquiry and search; and
…

(3)The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.

151․The question for the Special Magistrate to answer, in light of findings I have determined to be accurate, was this:

In the minutes between the collision and when the respondent realised his right hand was not working properly and in circumstances where he did not consider himself to have suffered more than minor injuries and was in a state of shock, should the respondent have obtained the details of the vehicle?
152․The Special Magistrate correctly acknowledged that this was not a case where there was no possibility of ascertaining the details of the vehicle. The respondent in evidence described that when he was “flat on his back on the road” the driver of the vehicle got out of the vehicle and he noticed that the vehicle had a bull bar. He initially agreed in cross-examination that he could “possibly” have seen the numberplate of the vehicle at that point. Later in response to a clarifying question about whether he “could have seen” the numberplate he responded, “I’d have to say no when I think about it”. The respondent was asked to explain why he could not have seen the numberplate and he answered, “[b]ecause I was in shock. I don’t know what was happening to me.”
153․After more questions in cross-examination the respondent returned to his initial answer that he could “possibly” have seen the numberplate given he was able to see the bull bar at the front of the vehicle. The respondent was pressed further on the issue and when it was put to him directly that the numberplate was “plainly visible” to him he unequivocally disagreed.
154․There was no evidence as to the appearance of the vehicle beyond that which the respondent described; a white four-wheel drive, with a tall aerial and a black bull bar. There was no evidence that demonstrated that from his position “flat on his back” on the road, the respondent could have seen the numberplate on the vehicle which had a bull bar attached to it.
155․The respondent agreed that on the day of the collision he had a mobile phone with him that had the capacity to take photographs and he knew how to operate that function on the mobile phone.
156․The respondent described an interaction with the driver while he was laying on the road when the driver asked if he was alright and if he needed an ambulance. The respondent was not able to say, after that interaction, whether the driver got into his vehicle or was “standing around”.
157․The respondent said he did not look at the vehicle to see if it was damaged, explaining that he did not think he could have inspected the vehicle because he was in shock and “just wanted to get away, just give me some space. I didn’t know what happened, I was in shock”. The respondent disagreed that he realised the extent of his injuries before the vehicle left the scene and that it was not until he answered a phone call from his nephew that he saw his thumb was bleeding and “wouldn’t work”. Prior to this he thought he had “slight” or “minor” injury, “soreness” or “just scratching or grazing”.
158․The respondent told the Special Magistrate that he had moved 50 metres away from the scene when he received the phone call and he turned back to see that the vehicle had left. The respondent did not see the vehicle leave the scene.
159․The respondent described that because of the “shock or whatever I couldn’t handle the situation at the time” and agreed with the proposition that “from a physical point of view” he could have asked the driver for his details. He said he “could have done a lot of things if [he] was in the right sense of the mind but [he] wasn’t”.
160․The Special Magistrate found that the respondent was “beating around the bush” when he answered questions asked about his ability to see the numberplate when he was lying on the ground having offered that he could see the bull bar. I defer to the advantage his Honour had in coming to that conclusion by virtue of watching the respondent give his evidence. While the appellant noted this finding and suggested it was left unresolved by the Special Magistrate, no specific complaint was made in the appeal. Ultimately in my view it was resolved by the finding his Honour made as to the reason for the failure by the respondent to obtain the details of the driver. Whether it was physically possibly for the respondent to have seen the numberplate was not to the point when his Honour was satisfied that the circumstances in which the respondent failed to obtain the details did not include that he was physically unable to observe them or record them.

Reasonable inquiry and search

161․The phrase “reasonable inquiry and search” it was accepted, should be approached as an iteration of “due” or “proper” inquiry and search. The phrase raised the question of whether the respondent had “taken such measures to ascertain [the identity of the vehicle] as were reasonable in the circumstances of the case having regard to the situation of the claimant.”: Cavanagh.
162․In Ford at [41] it was observed:
Depending on the circumstances of a particular case, no inquiry or search may be required. This may be because in the circumstances in which the person was placed at the particular time, the suggested inquiry or search would not be reasonable due to the person’s physical condition or state of shock.
Citations omitted.
163․Further on at [43], citing Meakes at [70] and Ross at [69], the Court stated:
The content of “due inquiry and search” in a particular case might be influenced by the “physical ability of an accident victim to seek information” or the victim’s mental state at the time. The cases illustrate that a person who is in shock or who considers at the time that any injury he or she has suffered is trivial may not be required by “due inquiry and search” to record the registration of the vehicle or ascertain the identity of its driver during the time the unidentified vehicle is at the scene. In other cases, the person’s appreciation that he or she has suffered an injury that may be compensable makes it reasonable to record a registration number that the person is able to observe and record.
164․As was observed in Meakes at [53] citing the High Court’s “admonition” per Barwick CJ in Harrison v Nominal Defendant (1975) 7 ALR 680 at [682]: “an affirmative finding that the identity of a vehicle cannot be established… is one that an appellate court must rarely be able to set aside”. In this matter, as in Meakes, there was opportunity to identify the vehicle, no difficulty in identifying the vehicle, no doubt that an accident occurred and no challenge to the respondent suffering injuries as a result.
165․Despite those similarities between the respondent’s circumstances and the circumstances of the claimant in Meakes, the Special Magistrate was right to distinguish the respondent’s position.
166․In Meakes, Sackville AJA confirmed that “each case must depend on its own circumstances” and identified that there were four circumstances that warranted appellant intervention at [72]:
·     unlike most cases involving “due search and inquiry”, the identity of the vehicle which struck the respondent was readily ascertainable by him, had he made a simple inquiry at the scene of the accident;
·     the respondent was aware at the time of the accident that he had suffered injuries as a result of being struck by the motor vehicle;
·     the respondent was not so injured as to be unable to perform the simple task of recording the registration details; and
·     an injured person in the situation of the respondent could reasonably have been expected to obtain the relevant details at the scene.

167․His Honour concluded at [74]:
In the present case, the respondent could have established the identity of the vehicle that struck him by simply recording the registration number at the scene of the accident. While there may be cases where a failure by an injured (but not incapacitated) person to record the relevant details prevents a finding that there has been “due inquiry and search” for the purposes of s 34 of the MAC Act, I do not think that this is such a case. On the evidence, the respondent was not disabled from making the obvious inquiry and his main motivation appears to have been to get to his business appointment as quickly as possible.
168․The evidence in Meakes established that the claimant was aware at the scene that he had been injured and did not describe those injuries as “trivial”. Nor did he assert that the minor nature of any injury suffered was the reason for his failure to obtain details of the vehicle. The claimant in Meakes accepted he had a clear view of the stationary vehicle which was metres away and that he could, in fact, see the registration number. The task of obtaining the registration details would have taken “just a few seconds”.
169․A critical distinction between the claimant in Meakes and the respondent in this case can be found in Sackville AJA’s conclusions at [69]:
The respondent’s evidence perhaps suggests that the shock of being struck by a vehicle contributed to his determination to get to his appointment as soon as possible. And while obtaining the number may not have come to his mind at the time, he did not say that he was incapable of appreciating the significance of obtaining the registration number. No medical evidence was adduced on the respondent’s behalf suggesting that the shock was such as to render him unable to direct his mind to the need to obtain the relevant details. Certainly any shock the respondent suffered was insufficient to prevent him from proceeding almost immediately to his meeting and completing the “very difficult commercial transaction”.
170․The appellant was accurate when submitting that the claimant’s status as a legal practitioner was not determinative in Meakes, though his previous experience of obtaining the details of a vehicle at fault in an accident he was involved in was referenced by Sackville AJA at [70]. In considering the “due inquiry and search” that should have been undertaken, the claimant was to be treated as a reasonably informed member of the community. At [71], Sackville AJA concluded that “[s]uch a person could be expected to know that a victim injured in a motor vehicle accident, where another person is at fault, may be able to claim compensation from the person at fault”.
171․The Court in Meakes was ultimately satisfied that the claimant “was not disabled from making the obvious inquiry and his main motivation appears to have been to get to his business appointment as quickly as possible”: at [74].
172․In the present case, while the respondent had the opportunity to record the details of the vehicle, the evidence established that the respondent did not appreciate that he was injured in the relevant sense such that recording the details of the vehicle was warranted and further, that during the period within which he could have obtained the details his state of shock was such that he was unable to do so.
173․The evidence established that the respondent did not appreciate the extent of his injuries and was in a state of shock in the period where he could have collected the details of the vehicle and the driver. The state of shock was such as to undermine his capacity to identify the need to collect that information. The respondent had not previously been involved in an incident such as the one that confronted him on 19 December 2019 when he was unexpectedly knocked from his bicycle.
174․I do not consider that the Special Magistrate approached the question based on whether it was “understandable and excusable” for the respondent not to have obtained the registration details. In the circumstances established by the evidence, like the Special Magistrate, I am satisfied that reasonable inquiry and search did not require the respondent to record the registration of the vehicle, or identifying information of the driver, in the period up until the respondent realised his hand was not working and that the driver had left the scene.
175․These grounds of appeal have not been established.

Orders

176․For those reasons the following orders are made:
(1)Leave is granted to amend the notice of appeal.
(2)The appeal is dismissed.
(3)The answer to the question:
Is the vehicle involved in the accident on 20 December 2019 an unidentified vehicle within the meaning of section 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT)?

is confirmed to be ‘yes’.
(4)If an order for costs is to be sought, the parties have liberty to contact chambers.

I certify that the preceding one-hundred and seventy-six [176] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate: O Ferguson

Date: 8 January 2025

[2024] ACTSC 418

27 December 2024