Ziegeler v Nominal Defendant

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 heading south on Bernera Road, Prestons, in the left-hand lane driving towards Liverpool Catholic Club (LCC) and the M7 motorway. The unidentified vehicle is said to have come off the M7 motorway and driven quickly through the roundabout between Bernera Road and Jedda Road. The claimant noticed this unusual behaviour and kept riding towards the second roundabout between Jedda Road and Joadja Road, and the upcoming traffic lights. The claimant says he saw in his rearview mirror the unidentified vehicle quickly cut in behind him, quite close to the back of his motorbike. The claimant merged into the left lane to avoid the unidentified vehicle, but it quickly followed and accelerated up to the rear of his motorbike.
The claimant stated that he took evasive action to “escape” the unidentified vehicle, however at this time he was navigating the bend near the intersection of Joadja Road and Jedda Road where there was gravel on the road. As a result, he could not correct his steering and hit the median strip, causing him to collide with the front side of a vehicle that was stationary at the traffic lights on Joadja Road, being a Mercedes-Benz sedan. The claimant’s body hit the windscreen of the Mercedes-Benz before landing on the road.
Police and paramedics attended the scene. The claimant was taken to Liverpool Hospital via ambulance and was discharged on 14 November 2023. As a result of the accident, the claimant suffered multiple injuries, including a collapsed lung, broken collarbone and several fractures. The claimant submits the accident also caused psychological injuries.[1]
[1] In support of these submissions, the claimant has produced clinical records of Leppington Allied Health, clinical records of Optimal Health Medical Centre Leppington, and the Ambulance Report from the accident.

RELEVANT LEGISLATION

Division 2.4 of the MAI Act deals with claims involving uninsured or unidentified motor vehicles. Section 2.30 addresses claims against the Nominal Defendant where the at-fault vehicle cannot be identified and provides:
“(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2)    A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
(3) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(4)    The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(5)     In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.”
Section 2.30 applies to a claim for statutory benefits by virtue of the operation of ss 1.4 (definition of “claim”) and 1.10A (liability of Nominal Defendant) of the Act. Relevantly, s 1.4 defines “claim” to mean “a claim for statutory benefits or a claim for damages”. Section 1.10A provides:
“1.10A The provisions of this Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages, subject to—
(a) necessary modifications, and
(b) modifications prescribed by the regulations.”
Pursuant to s 2.36 of the MAI Act, this claim has been allocated to Allianz. For the purposes of these reasons, the Nominal Defendant and its agent Allianz will be referred to as the “insurer”.
The parties confirmed that whether the Nominal Defendant had lost its right to reject the claim for failure to make due inquiry and search is not in issue.

PROCEDURAL BACKGROUND

A preliminary conference was held with the parties on 21 November 2024. Directions were made for the parties to provide further evidence and submissions. Both parties provided further evidence and submissions in accordance with those directions.
A further conference was held on 3 February 2025. At this time, the claimant’s legal representative made oral submissions in reply to the insurer’s submissions dated 24 January 2025. The insurer’s legal representative made brief oral submissions in respect of the claimant’s credibility. The parties agreed to the dispute being determined on the basis of the documents before me and the submissions of the parties, and without holding a formal hearing.

On the papers

Section 52(3) of the Personal Injury Commission Act 2020 (PIC Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having considered both s 52 of the PIC Act and Procedural Direction PIC2, and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute ‘on the papers’ and without holding a formal hearing, and that this is the appropriate course in the circumstances.

SUBMISSIONS AND EVIDENCE

Claimant’s submissions and evidence

The claimant relies on two sets of written submissions, dated 10 October 2024 and 20 December 2024, and made oral submissions on 3 February 2025. The claimant also provided two bundles of evidence; an initial bundle provided with the application of 10 October 2024 and a bundle that was received by the Commission on 13 January 2025. I have considered both sets of written submissions, the oral submissions, and all material contained in the bundles.
The claimant’s submissions may be summarised as follows:
(a)    he has undertaken all due inquiry and search that is reasonable in the circumstances, and has complied with the requirement to the “fullest extent capable under the present circumstances”. The requirements for due inquiry and search do not stipulate that such inquiry must be fruitful, but rather compliance is predicated on the reasonable endeavours of the claimant and their representatives in searching for further information;
(b)    he has discharged his obligation in a timely fashion. The insurer’s allegation that any action was precipitated by a nine-month delay is not accurate nor representative of the investigations undertaken. All possible methods of inquiry have been undertaken in a timely fashion in the circumstances;
(c)    the claimant’s solicitors made several enquiries into the particulars of the claimant’s due inquiry and search obligations as well as taking timely actions to fulfil those obligations on behalf of the claimant;
(d)    given the location of the accident site (far from populated residential and business areas), the circumstances of the accident (the third vehicle harassing the claimant from behind outside the field of view and then speeding off after), the claimant’s individual circumstances (making it difficult for him to respond and comply with the request of the insurer) and the failure of the insurer to articulate what further due search and inquiry (and why) until 5 July 2024, the claimant has undertaken reasonable due search and inquiry into the accident in both a prompt and timely fashion; and
(e)    even if it was accepted that the claimant was made aware of his obligations to undertake due inquiry and search in March 2024, as submitted by the insurer, it is likely that the trail was already cold by this time.
The claimant submits it is apparent he made reasonable endeavours to search and inquire into the circumstances of the accident.
The claimant says there is little more that could have been done once the alleged vehicle had left the scene, referring to McLennan v Nominal Defendant [2014] NSWCA 332 at [113] per Emmett AJA, and Nominal Defendant v Ross (2014) 87 NSWLR 238; [2014] NSWCA 212 (Ross). Similar to the airport location in Ross, the claimant submits that the industrial area at which the accident took place, surrounded by vacant lots, meant the likelihood of there being witnesses was minimal. The claimant also highlights that, in Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259 (Oztan), it was held that search does not require “the conduct of a charade or the pursuit of routine advertisements and inquiries that were not, realistically, likely to produce results…”.

Insurer’s submissions and evidence

The insurer relies on two sets of written submissions dated 14 November 2024 and 24 January 2025, along with a bundle of documents. The insurer’s submissions dated 14 November 2024 refer to an interview between investigators and the police officer who attended the scene. That document was not produced to the Commission until 18 February 2025. The insurer also made brief oral submissions on 3 February 2025. I have considered both sets of written submissions, the oral submissions, and all documents provided.
The insurer submits that the claimant did not conduct due inquiry and search which, if properly undertaken, could have identified the vehicle. Accordingly, the insurer has denied the claim on the basis that due inquiry and search has not been made as required by s 2.30(2) of the MAI Act.
The insurer submits that the question is whether the claimant promptly and thoroughly undertook the inquiries that a reasonable person would have undertaken and as if that was the only way he could make a claim.
Reference is made to the claimant’s submissions that the insurer did not notify him of the requirement to conduct inquiry and search until May 2024, and that the insurer did not include particulars as to what further investigation is necessary or what it would reveal. The insurer submits this is irrelevant and incorrect.
The insurer submits that there are two questions that have to be answered: (1) whether the claimant’s conduct was satisfactory to discharge his obligations of undertaking due inquiry and search; and (2) whether the conduct was done promptly.
In respect of promptness, the insurer disputes the claimant’s submission that “all possible methods of inquiry have been undertaken in a timely fashion in the circumstances”. The insurer argues that: the claimant through his solicitors failed to take action with any immediacy or urgency; there was no further action beyond enquiring if advertisements could be posted in the newspaper; there was almost three weeks between the claimant firm attending the scene and contacting the LCC to post on the noticeboard; and the claimant did not lodge an application under the Government Information and Public Access Act 2009 (NSW) (GIPA Act) until 2 August 2024.
The insurer submits that the claimant’s conduct was not sufficient to discharge the requirements of the MAI Act in conducting due inquiry and search, and that it falls well short of what a reasonable person would have done in the circumstances if they wanted to pursue compensation against an offender who had not been identified.
In the insurer’s submission, because of the claimant’s delay and inaction he has allowed the trail “to go cold” where the unidentified vehicle could have otherwise been identified, and therefore has not undertaken due inquiry and search as required by s 2.30 of the MAI Act.
The insurer alleges the requirement to conduct due inquiry and search is a substantive requirement critical to the scheme, and that the insurer will suffer prejudice by reason of the claimant’s failure. In this regard, the insurer submits that the Nominal Defendant fund is created by s 2.38 of the MAI Act and is funded by compulsory third party (CTP) policy holders. It is tasked with providing compensation in certain circumstances only. The clear intention is that the fund is not to provide compensation if a person fails to undertake due inquiry and search if doing so would have identified a vehicle with a CTP policy from which compensation could be paid. In the present claim, the fund would not be intended to compensate the claimant because he did not conduct due inquiry and search.
The insurer refers to Zengin v Insurance Commission of Western Australia [2020] VSC 237 (Zengin) at [109]-[112] in respect of the prejudice “that Allianz would be subject to in the event the Member exercises its discretion to relieve the claimant of his failure to provide the notice in accordance with the Act”.

PRELIMINARY ISSUES

Before I consider the substantive issue in this case, being the claimant’s compliance with s 2.30 of the MAI Act, I will briefly address three preliminary issues that have been raised by the parties:
(a)    whether the insurer complied with its obligations under the Motor Accident Guidelines (Guidelines) to inform the claimant of his requirement to conduct due inquiry and search;
(b)    the impact, if any, of the initial misallocation of the claim to QBE instead of the Nominal Defendant; and
(c)    the claimant’s credibility.

Did the insurer comply with its obligations under the Guidelines?

Claimant’s submissions

The claimant submits that, despite requests made by the claimant and his solicitors, the insurer has at no time indicated how the claimant could go about satisfying the requirement for due inquiry and search. The claimant refers to clauses 4.136 to 4.141 of the Guidelines, and says the insurer has not indicated what steps ought to have been taken by him to fulfill his obligations.
The claimant’s statement records that he never received information from the insurer directly of his due inquiry and search obligations, and says his first formal notification that he had any such obligations was in conference with his solicitors in April 2024. Prior to this time, it was the claimant’s understanding that his obligations to assist in the investigation and inquiry into the motor vehicle accident had been satisfied and completed when he provided his statement to police. He says there was no information provided to him by the insurer which contradicted that understanding or informed him of any further obligation.
The claimant submits that he was not notified of any further obligations for investigation until May 2024 and his solicitors were only notified by way of letter enclosed in an email dated 5 July 2024. He also submits that the insurer failed to include particulars as to what further investigation was necessary, or what such investigation (if undertaken) would reveal.
The claimant says he would have disregarded any communication distributed directly to him and not communicated to his solicitors on the assumption that his solicitors would have also been provided with a copy, as any reminders of the accident were traumatic.

Insurer’s submissions

The insurer refutes the claimant’s submission that he was not aware of his due inquiry and search obligations. The insurer submits that it appropriately and satisfactorily informed him of the due inquiry and search obligations, and also informed his solicitor.
Until it received notice of the claim in March 2024, the insurer could not know that a claim was to be made against an unidentified vehicle and could not take any positive action. The insurer argues that it punctually acknowledged the claim on 14 March 2024, six days after it was received, and requested that the claimant provide the steps that had been taken to establish the identity of the vehicle.
The insurer says it tried contacting the claimant by telephone on two occasions and sent six emails to the claimant and his solicitors to notify him of the requirement to advise of the steps taken in respect of due inquiry and search to establish the identity of the vehicle said to be at-fault. The insurer then denied liability on 3 May 2024 on the basis that due inquiry and search had not been conducted, in compliance with the obligation to do so within two months of the claim being received.
The insurer says that the claimant’s submission that he has no recollection of the due inquiry and search obligations being made known to him by the insurer is contradicted by correspondence contained in the claimant’s bundle. This includes the email from the insurer on 4 April 2024 which was sent to the claimant and his solicitor, and the claimant’s email to QBE of 4 April 2024 in which it was stated that the claim was “previously handled by Allianz for the Nominal Defendant and some enthusiasm had developed for the claimant to oblige himself to due search and enquiry [sic]”.

The insurer submits that a reasonable person would have returned its calls, responded to its emails or otherwise made contact with the insurer to confirm what searches were required.
The insurer submits that it was not until 7 May 2024 that the claimant’s solicitor responded to ask what further attempts were required, and it cannot be said that the insurer failed to provide sufficient particulars of search attempts when no such question was ever posed to the insurer.
It is also submitted by the insurer that, on 17 May 2024, it requested the claimant provide the steps taken to identify the vehicle, the details of the person(s) who took those steps, dates these steps were taken, and the result(s) of these steps. The claimant’s solicitor did not respond. A further email was sent on 21 June 2024. The insurer submits that a telephone number was listed in the event the claimant or his solicitor had questions, and that a prudent claimant would make contact to enquire, noting the significant importance.

Consideration

The Guidelines relevantly provide as follows for claims against the Nominal Defendant:
“4.136 The insurer acting for the Nominal Defendant in a claim regarding an unidentified motor vehicle will explain to the claimant in writing that they are required to make due inquiry and search to ascertain the identity of the vehicle alleged to have been at fault in the accident.
4.137 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search, and:
(a) if the insurer determines that the requirement has not been met, it must provide details of the deficiency and how the claimant could go about satisfying the requirement.
4.138 In statutory benefits claims made on the Nominal Defendant, the insurer must make the liability decision within the timeframes specified under section 6.19(1)-(2) of the Act. If the insurer has not yet determined due inquiry and search at the time the liability decision is due, the insurer must inform the claimant in the notices of liability that it will make:
(a) a decision on whether due inquiry and search has been established
(b) a further liability decision once it is satisfied that due inquiry and search has been established.
4.139 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search.
4.140 An insurer’s decision must be based on all available information and should be consistent with the facts. Where the insurer alleges that the requirement has not been met, the insurer must include sufficiently detailed written reasons for its decision and details of the deficiency and manner by which the requirement could be satisfied by the claimant.
4.141 The insurer must perform as a model litigant in Nominal Defendant claims, which includes acting with complete propriety, fairly, and in accordance with the highest professional standards.”
Based on the evidence before me, I make the following findings:
(a)    the insurer attempted to contact the claimant by phone to advise him of his due inquiry and search obligations on at least one occasion and was unsuccessful;
(b)    on 14 March 2024, 21 March 2024 and 28 March 2024, the insurer sent email correspondence to the claimant and his legal representatives, using the claimant’s email address recorded in the application for personal injury benefits, and which was confirmed to be correct by the claimant’s solicitors, advising of his obligation to conduct due inquiry and search. This correspondence informed the claimant that he was required to provide the steps taken to identify the vehicle, the details of the person(s) who took these steps, the dates these steps were taken, and the results of these steps; and
(c)    the claimant’s legal representative has not submitted that the email correspondence was not received. Accordingly, I find that there was no issue with delivery of the emails referred to in subparagraph (b) above. While I accept that the claimant may not have read these emails, I find that they were received and read by the claimant’s solicitors.

In addition to the correspondence outlined above, the insurer continued to reiterate the claimant’s obligation to undertake due inquiry and search, including in its correspondence dated 3 May 2024, 17 May 2024 and 21 June 2024.
There is no evidence before me that the claimant or his legal representatives provided a substantive response to the correspondence from the insurer. I acknowledge that the insurer’s correspondence did not provide details of the deficiencies in the claimant’s inquiry and search. However, I find this was appropriate in circumstances where there was an absence of any details provided by the claimant and his legal representatives as to what inquiry and search had been undertaken to date.
Accordingly, based on the evidence before me, I find the insurer promptly and appropriately advised the claimant of his requirements to conduct due inquiry and search, including providing details of how the claimant could go about satisfying these requirements. I am satisfied that the insurer complied with its obligations under clauses 4.136 to 4.141 of the Guidelines.

What was the impact of the misallocation of the claim to QBE?

It is accepted by the parties that the claim was initially misallocated to QBE instead of the Nominal Defendant.
On 6 December 2023, following his release from hospital, the claimant submitted his application for personal benefits to the Nominal Defendant via CTP Assist.
On 8 December 2023, CTP Assist allocated the claim to QBE as “[e]nquiries made by SIRA have revealed that the registration number of the vehicle involved was insured by QBE at the date of the accident”. However, QBE was the insurer of the claimant’s motorbike and it is accepted by both parties that the claim should have been allocated to the Nominal Defendant.
On 14 March 2024, the claim was allocated to the insurer on behalf of the Nominal Defendant. Both QBE and the insurer notified the claimant’s solicitors of the transfer of the claim from QBE to the insurer for management on behalf of the Nominal Defendant. Despite this, the parties have presented evidence, and I find, that QBE continued to correspond with the claimant and his legal representatives until at least April 2024. This included QBE issuing a “Liability Notice – Benefits up to 52 weeks” on 3 April 2024 which accepted liability for statutory benefits. The claimant and his legal representatives also received correspondence from the insurer during this time.
I accept this may have led to confusion on the part of the claimant and his legal representatives as to the identity of the insurer managing his claim. This confusion is demonstrated by the email sent on 4 April 2024 from the claimant’s solicitors to QBE, which stated:
“The claim was previously handled by Allianz for the Nominal Defendant and some enthusiasm had developed for the claimant to oblige himself to due search and enquiry [sic]. Kindly confirm the QBE CTP Policy provides cover for the vehicle at fault and whether you require any further due search and enquiry [sic] to be undertaken by the claimant.”
I accept the insurer’s submission that the claimant’s legal representatives could have, but did not, copy both insurers into their correspondence during this time or sought to clarify the correct insurer. I also note that, on the evidence before me, at no stage prior to August 2024 did the claimant or his legal representatives provide information to either the insurer or QBE as to the inquiry and search that was said to have been undertaken.
While I am satisfied that the insurer complied with its requirement under the Guidelines to promptly advise the claimant in writing of his obligation to make due inquiry and search, there is no evidence before me that the QBE informed the claimant of those obligations.
Accordingly, to the extent the misallocation impacts the issues in dispute before me, I find that it led to a delay in the claimant being informed about his obligation to make due inquiry and search until 14 March 2024, the first date on which the claimant was informed of these obligations by the insurer.

The claimant’s credibility

During the conference on 3 February 2025, the insurer submitted that paragraph 46 of the claimant’s statement goes to his credibility, where he states:
“46. I was never at any stage in my claim informed received information from the insurer directly of my due search and inquiry obligations.”
I accept that some aspects of the claimant’s statement, including paragraph 46, are not consistent with the documents contained in the bundles. As noted above, I have found, based on the evidence before me, that the insurer directly informed the claimant of, and provided him with information as to, his due inquiry and search obligations.
I also accept there are other inconsistencies in the claimant’s statement. An example of this is that the email address referred to in his statement, being “[email protected]”, is different from the email address provided in his application for personal injury benefits, being “[email protected]”. Documents provided by the claimant show the use of the email address “[email protected]” to correspond directly with QBE in relation to his claim.
Nonetheless, the overall impression I have formed of the claimant based on his statement is that he is doing his best to recall events that occurred in the aftermath of what he describes as a traumatic event both physically and psychologically. He has been consistent in how he describes the circumstances of the accident. I am not satisfied he has tailored his evidence. I do not consider the inconsistencies in his statement diminish the reliability of his evidence or the claimant’s credibility.

HAS THE CLAIMANT ESTABLISHED DUE INQUIRY AND SEARCH?

Section 2.30 of the MAI Act requires there to have been due inquiry and search in respect of the identity of the vehicle said to be at-fault, and that the identity of the vehicle was not able to be established.[2]
[2] Nominal Defendant v Ayache (2014) 67 MVR 473; [2014] NSWCA 253 at [36].
A provision substantially in the form of s 2.30 of the MAI Act was first legislated in 1942. The common law has considered it in the various pieces of motor accident legislation in which it has existed. This provides useful guidance as to its interpretation.
Section 2.30 requires the claimant to show that due inquiry and search has been performed but the identity of the vehicle could not be established, or that searches and inquiries would not have established the identity of the vehicle, such that no inquiry or search was “due” in the circumstances.[3]
[3] Ross at [3], referring to Nominal Defendant v Meakes [2012] NSWCA 66 (Meakes) at [54]-[55].
The idea is a compound one,[4] and requires such inquiry and search as is reasonable, being reasonable in the circumstances of the accident and in the situation of the claimant after the accident.[5] To be reasonable, it must be as prompt and thorough as the circumstances permit and the inquiries must be set on foot before the scent is cold.[6] However, the claimant is not required to take steps which are likely to prove futile or purely ritualistic and unlikely to be productive.[7] Further, the due inquiry and search can be done on behalf of the claimant or in the interest of that person.[8]
[4] Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 at [14].
[5] Meakes at [34], referring to Cavanagh at 380-1.
[6] Meakesat [31], referring to Blanford v Fox (1944) 45 SR (NSW) 241 at 245 per Jordan CJ (Blanford).
[7] Harrison v Nominal Defendant (1975) 7 ALR 680 at 681 per Barwick CJ (Harrison).
[8] Cavanagh at 380 per Dixon CJ.
As Barwick CJ explained in Harrison v Nominal Defendant (1975) 7 ALR 680 (Harrison) at 682:
“It is not whether some search and inquiry has been made. The presence of the word ‘due’ in the subsection emphasizes that the question is whether the identity of the vehicle cannot be established though such search and inquiry as might appropriately be made in the circumstances of the case had taken place. … It is a mistake, in my opinion, to divorce the words ‘after due inquiry and search’ from the total expression of the condition on which the action against the Nominal Defendant may be brought. Whether or not the tribunal of fact is satisfied that the identity of the vehicle cannot be established after such search and inquiry of which the circumstances admit will depend on all the circumstances of the case.”
Similar sentiments were noted by Dixon CJ in Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375 (Cavanagh) at 380:
“…the word ‘due’ brings with it the circumstances of the case as the test of what inquiry and search will suffice. And it is the circumstances of the case of the person suffering bodily injury or, where death has been caused, of the claimant that must be considered. It is the word ‘due’ which connects the inquiry and search with the person injured where, as here, the claim is for bodily injury. You must look at the circumstances in which he or she was placed and, bearing in mind that the question is one affecting that person’s rights, say whether in those circumstances enough was done by or on behalf of or in the interest of that person to warrant the description ‘due’ inquiry and search.”[9]
[9] Cavanagh at 380 per Dixon CJ.
In addition to considering the circumstances of the injured person, the Courts have recognised that it is appropriate to treat the claimant as a “reasonably informed member of the community”, being a person “expected to know that a victim injured in a motor accident where another person is at fault may be able to claim compensation from that person”.[10] “When considering the knowledge of a ‘reasonably informed member of the community’, one has to look at the particular circumstances of the proposed plaintiff and assess his or her actions prospectively, not in hindsight. To do otherwise would not be to give proper effect to the word ‘due’, as explained in Cavanagh, Harrison and Oztan”.[11]
[10] Meakes at [71].
[11] Ross at [74].
The section also requires that the identity of the vehicle causing the injury cannot, after due inquiry and search, be established.[12] That is:
“…the claimant is not able to provide any adequate information as to the identity of the vehicle notwithstanding that the claimant and those acting for the claimant with his or her authority have taken such measures to ascertain it as were reasonable in the circumstances of the case having regard to the situation of the claimant”.[13]
[12] Harrison at 681 per Barwick CJ.
[13] Cavanagh at 381 per Dixon CJ.

Did the claimant undertake due inquiry and search on the day of the accident?

The claimant was treated by paramedics at the scene of the accident and conveyed to Liverpool Hospital Emergency Department. According to the ambulance report, the call for emergency services was received at 11.24am, the ambulance was at the scene at 11.34am and paramedics commenced treating the claimant at 11.35am. Accordingly, there was approximately 10 minutes between the time emergency services were called and when the claimant was in the care of paramedics.
The police report and transcript of interview with the attending police officer notes the claimant was unable to be breath tested at the scene as he was conveyed to hospital, and that a formal statement could not be taken from him until the following day due to his incapacity.
The claimant’s statement details the injuries that he suffered as a result of the accident, and he has provided medical records in support.
The insurer accepts that the claimant was unable to conduct inquiries on the day of the accident at the scene of the accident, as the evidence indicates the claimant was incapacitated and conveyed to hospital by ambulance.
Based on the evidence before me, I find that the claimant was disabled due to his accident caused injuries from making any search and inquiry at the scene of the accident. There was also minimal time between the accident and when the claimant was transported to hospital for him to make inquiries from bystanders who may have witnessed the accident. Given that the report from paramedics states that the claimant was lying on the road at the time of their arrival, it can be reasonably inferred that he was not in a position to speak to any bystanders to ascertain whether they saw the unidentified vehicle or otherwise had any information that may assist his CTP claim, prior to being treated by the paramedics and transported from the scene.
I accept that the claimant saw the unidentified vehicle in his rear vision mirror prior to the accident and recalled the colour and make of this vehicle. However, as distinct from the circumstances in Ross and Meakes, there is no evidence or submissions before me which suggest there was an opportunity for the claimant to record any other details of the at-fault vehicle prior to the accident. Nor is this a case where the identity of the vehicle said to be at-fault was readily ascertainable by the claimant at the scene. The unidentified vehicle was not involved in the collision, there was no contact between the driver of the vehicle and the claimant, and the vehicle did not stop at the scene.
I find that a reasonable person in the position of the claimant would not have been able to record any other details of the unidentified vehicle or otherwise undertake search or inquiry on the day of the accident.

Did the claimant undertake due inquiry and search after the accident?

The claimant was discharged from hospital on 14 November 2023. The insurer submits that the claimant would have had the capacity to conduct inquiries by late November 2023 at the latest, or possibly earlier, and that there were two critical periods of avoidable delay in conducting inquiries:
(a) from late November 2023 (at the latest) until January 2024 when the claimant conducted no searches or inquiries, but was capable of doing so; and
(b) between January 2024 when the claimant made one inquiry and seemingly abandoned any further search and inquiry until his solicitors did on July 2024.
I accept that a reasonable person in the position of the claimant would not have undertaken inquiry or search while receiving treatment in hospital, and in the immediate aftermath of his discharge. Accordingly, I consider it appropriate to examine the period suggested by the insurer, being from late November 2023 onwards.
The claimant has provided submissions and a statement to the effect that his search and inquiry immediately following the accident included:
(a)    reporting the accident to police and providing a statement to police for investigation;
(b)    obtaining the police report once prepared;
(c)    making contact with the occupants of the black Mercedes-Benz sedan, who were unable to provide further information; and
(d)    notifying the insurer of the circumstances of the accident in his Application for Personal Injury Benefits.
The claimant says he was otherwise reliant on his legal representatives to undertake further inquiries and search because of his significant physical and psychological injuries. He submits he has no recollection of receiving any correspondence from the insurer about his failure to comply with his due inquiry and search obligations.
The insurer submits that speaking to police does not constitute due inquiry and search and, consequently, the claimant’s only inquiry was speaking with the occupants of the Mercedes-Benz. He “seemingly abandoned” any further search and inquiry.
I find that, aside from speaking with the occupants of the Mercedes-Benz and his interactions with police, the claimant did not undertake any further search or inquiry until July 2024. The further inquiry and search that commenced in July 2024 was undertaken by the claimant’s legal representatives on his behalf.

I am satisfied that it was appropriate for the claimant to have relied on his legal representatives and that examining the due inquiry and search undertaken by the claimant himself includes considering that made on his behalf,[14] such as by his solicitors. As noted by Barwick CJ, “[t]here may be situations in which the tribunal of fact can find that the identity of the vehicle cannot be established on evidence of inquiry and search by others than the plaintiff”,[15] and this class of inquirers includes the police.[16]
[14] Cavanagh at 380 per Dixon CJ (Kitto, Taylor, Menzies and Windeyer JJ agreeing).
[15] At 338-9.
[16] Cavanagh at 381, 384 per Dixon CJ; see also at 390 per Windeyer J.
The claimant submits that the searches and inquiries conducted by his legal representatives included:
(a)    conducting several conferences with the client in July 2024 to ascertain what additional endeavours could be made to enquire into the accident and to obtain instructions to pursue further investigation. The claimant’s attempts to canvass the scene and ascertain further information on the accident had been unsuccessful;
(b)    contacting the local newspaper to post an advertisement appealing for witnesses. The newspaper local to the area of the accident was known as the Liverpool Leader. Contact with the Liverpool Leader on 13 July 2024 confirmed the Liverpool Leader was no longer in print circulation;
(c)    contacting the Sydney Morning Herald in July 2024 to ascertain whether the paper was distributed in the area of Liverpool. Sydney Morning Herald advised that the advertisement was only capable of being posted electronically and that it would not be circulated in the Liverpool area;
(d)    visiting the accident site on two occasions to scope the location and ascertain whether there were any nearby properties to conduct a letter box drop with notices. When visiting the scene on 2 August 2024 it was ascertained the area was not a residential area capable of facilitating a letter box drop. The closest structure to the accident was a local community centre;
(e)    contacting LCC making enquiries as to the prospects of posting an advertisement within. A representative of LCC advised that they would not be accommodate such request;
(f)    attending the accident location and posted several notices surrounding the site. No witnesses since the posting of these notices have come forward;
(g) lodging a request for all records from police under the GIPA Act. An application was submitted on 2 August 2024 and received on 11 September 2024;
(h)    submitting an internal review application to proceed with the claim and commence statutory benefits for Mr Ziegeler. The insurer maintained their prior decision on 3 September 2024; and
(i)    corresponding with the insurer on 10 September 2024 to inquire what further action was required. No satisfactory response has been supplied.
The insurer submits that the searches and inquiries conducted by the claimant’s solicitors, which commenced in July 2024, were not in any way sufficient to satisfy the requirements of s 2.30 of the MAI Act and were attended to with a lack of urgency, noting:
(a)    the claimant’s solicitors did not act with any urgency in attending the scene to canvass for closed circuit television (CCTV) or witnesses. They did not attend the scene until July 2024, despite being instructed in late 2023 and advised of the due inquiry and search requirements at the latest in March 2024;
(b)    there was almost three weeks between the claimant firm attending the scene and contacting the LCC to post on the noticeboard;
(c)    on attending the scene, no sufficient or adequate investigations were made, ignoring several businesses along the likely path of travel leading up to, and after, the intersection of Joadja Road and Jedda Road, including Storage King Prestons, Scott’s Refrigerated Freightways, Endeavor Energy and LCC;
(d)    the claimant did not follow up on the email from the Sydney Morning Herald of 1 July 2024, setting out how to file an advertisement posting; and
(e) the claimant did not lodge a GIPA application until 2 August 2024.
The insurer submits that a reasonable person in the claimant’s position, who was a reasonably informed member of the community, would have promptly undertaken investigations to identify the vehicle. These searches are said to include:
(a)    contacting the occupants of the Mercedes-Benz vehicle by late November 2023;
(b)    promptly corresponding with businesses in the area via telephone or email, some of whom it could reasonably be suspected to have CCTV footage of the unidentified vehicle. These businesses are said to include Storage King Prestons, Scott’s Refrigerated Freightways, Endeavor Energy, LCC, and “multiple other businesses depending on whether the unidentified vehicle turned right or left of Hoxton Park road”;
(c)    the claimant advised his general practitioner (GP) on 20 November 2023 that he saw the unidentified vehicle come “off the M7”, however there is no evidence that inquiry was made for CCTV footage available on the motorway, notwithstanding it is said to be a distinctive vehicle; and
(d)    undertaking the investigations that his solicitors conducted in July 2024 to ascertain if there were any further witnesses.
The insurer submits that proper searches could have identified the insured vehicle if they were undertaken promptly, given the claimant said the unidentified vehicle had distinctive features and the accident occurred in a built-up area. The insurer refutes the claimant’s suggestion that the area was similar to the airport location in Ross, and notes there was a community centre and several businesses surrounding the area. Further, the accident occurred wholly within business hours and the likelihood of persons being around the vicinity at the time were high. A full and adequate search may have identified another witness who could assist in identifying the vehicle or at least providing further insight into the accident circumstances.
Furthermore, the insurer argues that, distinct from Ross, the claimant knew he had suffered serious injuries and should have undertaken search and inquiry as soon as he was capable of doing so.
In the insurer’s submission, because of the claimant’s delay and inaction, he has allowed the trail “to go cold” where the unidentified vehicle could have otherwise been identified, and therefore has not undertaken due inquiry and search as required by s 2.30 of the MAI Act. His conduct falls short of what a reasonable person would have done in the circumstances.
I have addressed the parties submissions in respect of the specific inquiries and searches below.

(a)Interaction with police

With respect to the claimant’s interaction with police following the accident, the claimant’s evidence is that he was sedated when they initially attended hospital to obtain further details from him. He had a discussion with police around 3.00pm on the date of the accident and provided a formal statement on 11 November 2023 at approximately 8.00pm. In respect of these discussions, the claimant’s statement dated 19 December 2024 records as follows:
“20. Constable Cody Foreman and a female probationary colleague of hers attended my hospital room at 3pm to obtain a statement from me. We had a discussion regarding the accident and the impending investigation.
21.    The female officer asked me some questions regarding the subject accident, and I explained what is described above. I asked whether they had found the driver of the Mustang that caused the accident. They advised me that they were yet to identify the vehicle as there were no CCTV cameras at the accident site, but also informed me that they had identified an additional witness. They would not provide me with any further information on this witness. The constables further advised that they would be conducting an investigation into the circumstances of the accident. I asked whether they needed any further participation from me to aid in the investigation and they said that they did not need anything further from me other than a formal statement.
22.    Probationary Constable Foreman returned to visit me in hospital on 11 November 2023 at approximately 8:40pm to obtain my formal statement. I provided a detailed statement of the circumstances of accident as described above. Constable Foreman recorded the wording of my statement in his notebook which I then signed and dated, as did he at 9:16 pm.
23.    I further clarified the progress of the investigation to which Probationary Constable Foreman replied by saying that it was ongoing and that he had obtained everything he needed from me. He indicated that he required no further assistance from me in any capacity to investigate the accident.”
The claimant submits that he believed, following his cooperation with police, that he had complied with all due inquiry and search obligations. He was only advised that police had discontinued their investigation as a result of his solicitor’s application under the GIPA Act.
In respect of the claimant’s statement to police, the insurer submits that this does not constitute due inquiry or search. There is no suggestion that police advised the claimant that steps were taken on his behalf to investigate the identity of the vehicle, and they later informed the claimant that they were not undertaking further investigations. Even if the claimant was operating under the belief that his statement was sufficient to comply with due inquiry and search obligations, the test is not what the claimant’s belief was, but whether a reasonable person in the position of the claimant would have acted in the same manner.
It is recognised that reporting an accident to police is one type of inquiry which can be made by a claimant: see Cavanagh. I am satisfied that speaking with police was an appropriate inquiry by the claimant and does constitute inquiry and search. However, based on the circumstances of the accident, I am not satisfied that this inquiry alone would be sufficient to satisfy the claimant’s obligations under s 2.30 of the MAI Act.

(b) Retaining solicitors

The insurer submits that, if the claimant were incapable of conducting inquiries, he had the option to instruct solicitors sooner as a reasonable person would do, where time is of the essence to identify the offender.
The precise date on which the claimant retained solicitors is not in evidence before me. However, the letter from CTP Assist dated 8 December 2023 was addressed to the claimant’s solicitors. Accordingly, I find that the claimant had retained solicitors by 8 December 2023 at the latest, being less than a month after the accident. I do not accept the insurer’s submission that a reasonable person would have instructed solicitors sooner.

(c) Liaising with the occupants of the Mercedes-Benz

I find that liaising with the occupants of the Mercedes-Benz was an appropriate inquiry, given they are the only witnesses to the accident whose details were available to the claimant.
The occupants of the Mercedes-Benz are reported by the claimant not to have seen the unidentified vehicle, or anything else of relevance prior to the collision. This is supported by the interview between investigators and the attending police officer, who stated “No [witnesses] actually saw it occur, even the girl in the car. She was just sitting there and he just landed on top of her windscreen”.[17] While there is no independent statement from the occupants of the vehicle, there is nothing before me to suggest that the claimant’s statement or the transcript of the interview with the police officer are inaccurate in this regard, nor is this a submission of the insurer.
[17] A157 Transcript of interview produced 18 February 2025.
The insurer has submitted that there has been no evidence adduced to substantiate that the claimant spoke to the occupants of the Mercedes-Benz. I am satisfied that the claimant’s statement dated 19 December 2024 is evidence to this effect. I accept that evidence.
The insurer further submits that, if it was the claimant who made contact with the Mercedes-Benz occupants, then this is inconsistent with his statement that he truly believed, as at November 2023, that he had done all he could and the investigation was appropriately with police.
I accept there are inconsistences as between the claimant’s statement and his submissions as to how contact with the occupants of the Mercedes-Benz was initiated. However, noting the contact occurred soon after the claimant’s discharge from hospital and at a time when this type of detail may not have been a primary focus for him, I do not give any weight to this inconsistency.
In any event, I am not satisfied that contacting the occupants of the Mercedes-Benz, in circumstances where the claimant has indicated that they were concerned as to his welfare, is inconsistent with the claimant having the belief that the investigation into the unidentified vehicle was being conducted by police.
The discussion with the occupants of the Mercedes-Benz is said to have occurred on 18 November 2023, approximately four days after the claimant was discharged from hospital. I find this inquiry was sufficiently prompt.
I note that the claimant’s submissions dated 10 October 2024 record that this discussion occurred in January 2024, rather than November 2023. I find the claimant’s statement is more likely than the claimant’s submissions to be accurate as to the date the discussion occurred. Further, based on the reported recollection of the Mercedes-Benz occupants, being that they did not see anything of relevance, I am satisfied that the date this discussion occurred would not have impacted upon the ability to identify the unidentified vehicle.

(d) Promptly corresponding with businesses in the area

The insurer has identified four businesses which it says were located nearby the scene of the accident. In respect of one of these businesses, LCC, the claimant’s legal representatives provided a statement to the effect that they attended upon LCC on three occasions in early August 2024 to inquire about placing a notice on the LCC notice board in relation to the accident. The legal representative was informed that “the notice board is for club matters such as AGMs, and that the notice would not be of help in any situation as the intersection in question is over 100m away from the LCC carpark and no member would have seen it (the Motor Vehicle Accident in question).” [18]
[18] Statement of Zacchary Steven Lancaster dated 19 August 2024, claimant’s supplementary bundle p300.
The claimant conceded there is a Storage King nearby the scene of the accident, however noted that this is a storage facility as distinct from an office building and does not have windows out of which someone may have witnessed an accident.
The claimant has not specifically addressed the other two businesses identified by the insurer. However, the claimant submits that it is an industrial area and that the likelihood of there being witnesses is minimal. The claimant has also provided evidence that the claimant’s legal representatives attended the intersection where the accident occurred on 9 August 2024 and posted several notices requesting any witnesses contact the firm. No witnesses have come forward.
I am not satisfied that the searches undertaken by the claimant’s legal representatives were attended to in a timely fashion. The earliest of these is said to have occurred over six months after the accident. I accept that the canvassing of the accident and the placing of the notices was done at a time when it could be said that the trail had “gone cold”.
I consider that a reasonable person in the position of the claimant would have attended to the accident scene more promptly. However, I find that the posting of notices and visiting the businesses referred to by the insurer would have been akin to a “mere ritual” and likely to prove futile even if attended to a short time after the accident. This is because I am not satisfied that the area could be described as a “built up area”. I accept that there are several businesses in the vicinity of the accident location, however I find that it is an industrial area and there is minimal likelihood that a person at these businesses would have witnessed the accident such as to be able to identify the unidentified vehicle. Indeed, there is no evidence before me that the location of the accident can be viewed from any of the surrounding businesses.
While the ambulance report refers to bystanders, I am not satisfied these bystanders would have been able to provide any information about the unidentified vehicle. No mention is made to the unidentified vehicle in the ambulance report. Similar to the circumstances in Slinn,[19] the unidentified vehicle was not involved in the collision and, aside from driving on the same road immediately prior to the accident, there is nothing that would have attracted a witness’s attention to this vehicle.
[19] Slinn v Nominal Defendant [1964] HCA 72; 112 CLR 334 (Slinn) at 339, a case involving the Australian Capital Territory equivalent to s 2.30 of the MAI Act, as it existed at the time (41AO(3) Motor Traffic Ordinance 1947 (ACT)).
In respect of CCTV footage, the police report notes the following:
“Upon canvassing the scene Police came to the conclusion there is no surrounding CCTV that may have captured the incident.”
While the insurer has submitted that inquiries should have been made to obtain CCTV footage from the surrounding businesses, there is no evidence before me that any of these businesses have CCTV footage that would have captured the accident scene. Indeed, the only possible location of CCTV footage which has been identified by the insurer is from the M7 motorway.
I am satisfied that the industrial nature of the accident location, the distance of the businesses from the accident scene, and the nature of the surrounding businesses meant it was not an area in which there was a “reasonable prospect of obtaining useful information”.[20]
[20] Cf Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301.
Further, given the unidentified vehicle did not stop at the scene and was said to be driving at speed, I find it unlikely that any witnesses to the accident would have made note of its details other than the make and colour, as already noted by the claimant, such that these additional details would enable the identity of the vehicle to be ascertained.
I am satisfied that no further search or inquiry of the accident area was due.

(e) Obtaining CCTV footage of the M7 motorway

It is accepted that the CCTV footage of the M7 motorway, if available, would not have captured the scene of the accident. There is also no evidence that such footage would have revealed the identity of the unidentified vehicle, as there is no evidence as to the quality of the CCTV footage and whether it would have been positioned in a way that would have captured vehicle registration numbers.
Further, the claimant’s legal representatives made oral submissions that subsequent inquiries indicate that CCTV footage of the M7 motorway is only held for one or two weeks.
I find that a reasonable person in the position of the claimant is unlikely to have immediately appreciated the relevance of this footage as it covers a road unrelated to the accident. A reasonably informed member of the community would also not have been aware that CCTV footage of the M7 motorway would only be kept for one or two weeks.[21]
[21] See Ross at [76].
Accordingly, I find that it would not be unreasonable for such a request to be made more than two weeks after the accident, at which time such a request is likely to have been futile. Due inquiry and search in relation to the CCTV footage would not have established the identity of the vehicle because such an inquiry and search is likely to have been made after the CCTV footage was destroyed.

(f) Undertaking the investigations in July sooner

In addition to the canvassing of the accident scene, the investigations undertaken in July 2024 by the claimant included an inquiry to the Sydney Morning Herald regarding the publication of an advertisement seeking witnesses to the accident.[22] The claimant’s evidence is that the only local newspaper with exclusive distribution in the Liverpool area was an online publication.[23]
[22] Statement of Alexis Brooke Waddups dated 18 December 2024, claimant’s supplementary bundle, p306.
[23] Statement of Alexis Brooke Waddups dated 18 December 2024, claimant’s supplementary bundle, p306.
This inquiry was initiated over six months after the accident and there was no further action beyond enquiring if advertisements could be posted in the newspaper. This cannot be said to be a “timely” inquiry.
However, I find it is unlikely that, given the broad geographic distribution of the newspapers in question, any advertisement would have been successful in locating a witness who would have preserved the details of the unidentified vehicle. I consider the placement of a newspaper advertisement either in July 2024 or shortly after the accident would have been akin to a ritual as opposed to a fruitful avenue of inquiry, and one unlikely to yield leads. The obligation in s 2.30 does not require “[t]he conduct of a charade or the pursuit of routine advertisements and inquiries that [a]re not, realistically, likely to produce results…”.[24]

(g) Inquiries arising from emergency services reports
[24] Oztan at 264.

The insurer refers to the statement in the ambulance report that bystanders “state pt was riding motorcycle at high speed when he came around the corner, hit a stationary car and went over the handlebars”. The insurer submits that there was no attempt made to locate these bystanders, and that “it is also critical to highlight the absence of reference to the unidentified vehicle” in the report. The insurer also refers to the police report created on the day of the accident and notes that it only speaks to the involvement of the claimant’s motorbike and the Mercedes-Benz, and the investigating officer said that no witnesses had seen the unidentified vehicle.
It is not clear how the insurer suggests the bystanders should have been located, noting that the claimant was conveyed to hospital shortly after the accident and I have found that he was incapacitated at the scene of the accident. There are no identifying details of the bystanders in the ambulance report that would enable the claimant or his agents to contact them.
I accept that the bystanders may have been able to provide further information as to the accident circumstances. However, as recognised by the insurer, there is no reference to the bystanders having seen the unidentified vehicle or, if they did see the vehicle, having linked the unidentified vehicle to the accident. Indeed, the attending police officer noted “…by the time they got to where the crash site happened, the car was gone…”.[25] Accordingly, there is no evidence to suggest that the bystanders would have had any information as to the identity of the unidentified vehicle. I am satisfied that a reasonable person in the position of the claimant would not have located the bystanders referred to in the ambulance report.
[25] A135, Transcript of interview produced 18 February 2025.
I accept there is no reference in the ambulance report or the police report to the unidentified vehicle. However, both reports are dated 10 November 2023, when the claimant was still incapacitated from providing his version of events. It is not clear that the witnesses would have linked the unidentified vehicle to the accident. Further, neither report is intended to be a comprehensive statement as to the circumstances of the accident.
Documents created after the accident, including the claimant’s statement to police on 11 November 2023 and the Certificate of Capacity / Certificate of Fitness dated 21 November 2023, include a reference to the unidentified vehicle. The claimant’s statements have been consistent in this respect.
Aside from the submissions summarised at paragraph 121, the insurer has not made submissions as to the existence of the unidentified vehicle. The issue before me is whether the claimant has satisfied his obligations under s 2.30. In any event, I am not satisfied that the absence of a reference to the unidentified vehicle in the ambulance report or police report is determinative of the existence or otherwise of that vehicle.

Considerations

Reasonable inquiries are those that have some realistic prospect of providing information that may lead to identification of the relevant vehicle. The question is whether steps by way of investigation or inquiry might reasonably lead to useful information. It is not necessary for the claimant to demonstrate that all possible steps have been undertaken if such steps were unlikely to result in observations or information likely to lead to identification.[26] Absent some prospect of useful information, such steps would not be considered reasonable.
[26] Slinn at 338-9.
While the unidentified vehicle is said to have distinctive features, it does not fall within the same category of vehicle as Syed v CIC Allianz Insurance Ltd,[27] where it transpired some four years after the accident that the alleged unidentified vehicle was an Aldi truck. There, the Court found that a due and reasonable inquiry would have included making investigatory contact with that company to ascertain if any details could be obtained in relation to the identity of the unknown vehicle. While I accept that the gold decal and make of the vehicle can be said to be relatively uncommon, there was no further obvious inquiries to make in respect of the vehicle itself.
[27] [2021] NSWDC 20.
Several of the insurer’s submissions focus on the “promptness” of the inquiries by the claimant. I accept that to be reasonable the due inquiry and search must be as prompt and thorough as the circumstances permit.[28]
[28] Blanford at 245.
While I accept the insurer’s submission that the inquiries and searches conducted on behalf of the claimant were not attended to with the expected urgency, the extent of inquiry and search must be considered in the context of the circumstances.
In terms of the circumstances of the accident, I find that this includes the claimant’s incapacity at the accident scene and his admission to hospital, the physical and psychological injuries said to be caused by the accident, that the claimant was not made aware of his obligations to conduct due inquiry and search until March 2024, the absence of information as to the unidentified vehicle (being any details aside from its make and colour), the inability of the claimant to locate bystanders and other people who may have witnessed the accident, and the industrial nature of the area in which the accident occurred. These circumstances make it difficult to identify any further reasonable inquiries or searches.
I find that, in the circumstances, the claimant has acted as a reasonable person in his position and discharged his obligations under s 2.30 of the MAI Act to undertake due inquiry and search. I find that no further reasonable inquiries or searches could have been undertaken that would have identified the unidentified vehicle, such that no further search or inquiry was “due”.

Can the identity of the unidentified vehicle be established?

On the evidence before me, I am satisfied that, despite the due inquiry and search undertaken by the claimant, the vehicle cannot be identified. I am also satisfied that there are no additional searches or inquiries that could have reasonably been undertaken in the circumstances that would have established the vehicle’s identity.

PREJUDICE

The insurer submits that the clear intention of s 2.30 of the MAI Act is that the Nominal Defendant fund is not to provide compensation if a person fails to undertake due inquiry and search if doing so would have identified a vehicle with a CTP policy from which compensation could be paid. I accept this submission.
Reference is then made to Zengin in respect of the prejudice that the insurer says it would be subject to if “the Member exercises its discretion to relieve the claimant of his failure to provide the notice in accordance with the Act”. The relevance of Zengin and this submission to the issues in dispute is unclear. The dispute before me does not regard the exercise of a discretion to relieve the claimant of a failure to provide notice in accordance with the MAI Act. The issue is whether the claimant has complied with his obligation to undertake due inquiry and search.
Zengin involved a claimant who was injured disembarking from a bus at his worksite in Western Australia, where he worked on a ‘fly-in fly-out’ basis. It considered the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the WA Act). The Court’s consideration focused on the exercise of a discretion in s 29A of the WA Act, which is not applicable to this claim. This was recognised by the Court where, in response to a submission in respect of Meakes, the Court stated at [105]:
“…Sackville AJA’s comments were made in relation to the assessment of whether there had been ‘due inquiry and search’ and did not specifically relate to a provision analogous to s 29A of the Act.”
Section 29A of the WA Act:
“…gives the Court a discretion to grant a plaintiff an indulgence in relation to a failure to give the required notice, or to make due search and inquiry, where that failure was ‘occasioned by mistake, inadvertence or any reasonable cause or that the commission is not materially prejudiced in its defence or otherwise’.”[29]
[29] Zengin at [94].
The paragraphs of Zengin referred to by the insurer summarise the evidence adduced by the Insurance Commission of Western Australia (ICWA) in respect of this alleged prejudice. That the ICWA had suffered prejudice was conceded by the claimant. The claimant accepted there were several avenues of search and inquiry that he could have, but did not, undertake.[30] These avenues were found to be reasonable steps which, while they remained outstanding, the Court could not be satisfied that the identity of the vehicle at fault could not be ascertained.[31]
[30] Zengin at [66]-[67].
[31] Zengin at [90].
The facts of Zengin can be distinguished from those in the present claim. I am not satisfied that prejudice to the insurer is a relevant consideration when determining whether the claimant has complied with his obligations under s 2.30 of the MAI Act.

CONCLUSION

I am satisfied that there has been due inquiry and search by the claimant, but that the identity of the unidentified vehicle has not been established. I find that the claimant has complied with his obligations under s 2.30 of the MAI Act.

[2025] NSWPIC 61

20 February 2025