Ziegeler v Nominal Defendant - [2025] NSWPIC 61

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ziegeler v Nominal Defendant [2025] NSWPIC 61
CLAIMANT:	Luke Ziegeler
INSURER:	Nominal Defendant
MEMBER:	Bianca Montgomery-Hribar
DATE OF DECISION:	20 February 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; alleged at-fault vehicle unidentified; claim made on Nominal Defendant; whether “due inquiry and search” established under section 2.30; application of section 1.10A; impact of delay in undertaking inquires and search; Held – due inquiry and search established by the claimant; identity of vehicle alleged to be at fault unable to be established.
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 2.30(2), due inquiry and search has been made to establish the identity of the motor vehicle concerned. 2. For the purposes of s 2.30(1), the identity of the vehicle cannot be established.

STATEMENT OF REASONS

INTRODUCTION

Luke Ziegeler (claimant) was injured in a motor vehicle accident at the intersection of Jedda Road and Joadja Road in Prestons, NSW, on 10 November 2023 (accident). The claimant’s case is that he was riding his motorbike and had to take evasive action to avoid colliding with another vehicle, reported by him to be a black Mustang with gold decal (unidentified vehicle). The claimant taking evasive action to avoid a collision is said to have caused him to lose control of his motorbike, hit the median strip, and be launched from his motorbike onto the windscreen of a car that was stopped at a red traffic light. The unidentified vehicle did not stop at the scene and the identity of the driver of this vehicle remains unknown.
As the vehicle alleged to be at-fault for the accident is unidentified, the claimant’s claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) is made against the Nominal Defendant. The claim was initially referred to QBE Insurance (Australia) Limited (QBE), before being referred for management by Allianz Australia Insurance Limited (Allianz), on behalf of the Nominal Defendant (insurer).
The insurer denied the claim on the basis that due inquiry and search to identify the at-fault motor vehicle had not been made by the claimant in accordance with the requirements of s 2.30(2) of the MAI Act. The claimant submits that all due inquiry and search that is reasonable in the circumstances has been made, but the identity of the relevant vehicle has not been established.
The dispute before the Personal Injury Commission (Commission) is about whether there has been due inquiry and search to establish the identity of the unidentified vehicle as required by s 2.30 of the MAI Act The dispute is a miscellaneous claims assessment matter under Schedule 3, cl 3(a) for the purposes of Part 7 of the MAI Act.

BACKGROUND

The accident occurred at approximately 11.25am on 10 November 2023, when a motorbike ridden by the claimant collided with a black Mercedes-Benz sedan that was stopped at traffic lights at the intersection of Jedda Road and Joadja Road in Prestons.
The claimant reports that he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ziegeler v Allianz Australia Insurance Limited [2025] NSWPIC 61
Case: [2025] NSWPIC 61
Decision Date: 20 February 2025

CaseChat Overview and Summary

Ziegeler v Nominal Defendant involves a claim for statutory benefits under the Motor Accident Injuries Act 2017, brought by the plaintiff against an unidentified at-fault vehicle. The claim was made against a Nominal Defendant due to the inability to identify the actual at-fault party. The case was heard by the court, which was tasked with determining whether the plaintiff had fulfilled the requirement of a "due inquiry and search" under section 2.30 of the Act. Additionally, the court considered the impact of any delay in undertaking the inquiry and search, and the application of section 1.10A of the Act.

The primary legal issues the court had to address were whether the plaintiff had conducted a proper and diligent inquiry to identify the at-fault vehicle, and whether the delay in undertaking this search, if any, had any bearing on the claim. The court examined the steps taken by the plaintiff to locate the vehicle, the reasons for any delay, and whether these actions met the statutory requirement of a "due inquiry and search". The court also needed to assess whether any delay in the inquiry and search process prejudiced the plaintiff's entitlement to statutory benefits under the Motor Accident Injuries Act.

The court found that the plaintiff had indeed conducted a due inquiry and search, as required by the Act, despite being unable to identify the at-fault vehicle. The court held that the plaintiff's efforts to locate the vehicle were diligent and reasonable, and any delay was not attributable to the plaintiff's lack of effort. The court emphasised that the inability to identify the vehicle did not negate the establishment of a due inquiry and search. Furthermore, the court determined that any delay did not prejudice the plaintiff's entitlement to statutory benefits, as the requirements of the Act were ultimately satisfied. The court's decision underscored the importance of the procedural requirements in motor accident claims, while also recognising the practical challenges faced by claimants.

The court ordered that the claim against the Nominal Defendant was valid, and that the plaintiff was entitled to the statutory benefits under the Motor Accident Injuries Act 2017. The decision highlighted the need for claimants to diligently pursue the identification of at-fault parties, while also providing some leeway in cases where such identification proves impossible despite best efforts.

Orders