Workers Compensation Nominal Insurer v Nominal Defendant

The Workers Compensation Nominal Insurer (the Insurer) appealed to the Court of Appeal of New South Wales against a decision concerning a worker injured in a motor vehicle accident. The worker's vehicle was struck by another vehicle, the details of which were lost, and the worker subsequently claimed workers compensation. The dispute centred on whether the unidentified vehicle qualified as an "unidentified vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW), which would allow the Insurer to recover compensation paid to the worker from the Nominal Defendant.

The primary legal issues before the Court of Appeal were whether the worker, or by extension the employer, was obliged to undertake a "due inquiry and search" to identify the other driver and vehicle, as required by section 34 of the *Motor Accidents Compensation Act 1999* (NSW), and whether such a due inquiry and search had, in fact, been established. The Court also considered whether the primary judge had erred in failing to make an allowance for past economic loss in the assessment of damages.

The Court of Appeal held that the obligation to conduct a due inquiry and search rested with the claimant seeking to recover from the Nominal Defendant. It found that the evidence presented did not establish that a due inquiry and search had been undertaken by the worker or on their behalf. Consequently, the Court determined that the unidentified vehicle did not meet the statutory requirements to be considered an "unidentified vehicle" for the purposes of the Act. The Court also found no error in the primary judge's assessment of damages, including the absence of an allowance for past economic loss.

The appeal was dismissed with costs.