Ford v Nominal Defendant [2023] QCA 83
What is a person expected to do to identify a vehicle after an accident when they do not initially realise they have been injured?
In Ford v Nominal Defendant [2023] QCA 83, the Queensland Court of Appeal considered the requirement to make a “proper inquiry and search” before pursuing a CTP claim against the Nominal Defendant where the responsible vehicle cannot be identified.
The Court allowed Mr Ford’s appeal, finding that proper inquiry and search did not require him to chase the unidentified vehicle immediately after the incident or undertake later searches that were unlikely to identify it.
What happened?
Mr Ford was riding his motorcycle on Redland Bay Road when a piece of timber fell from a utility vehicle travelling ahead of him.
He avoided the timber with the motorcycle’s front wheel, but the rear wheel travelled over it, causing the motorcycle to “bunny hop” and jarring his body. Although Mr Ford experienced some pain, he did not initially believe he had been injured and continued on his journey.
His symptoms subsequently worsened. Investigations ultimately identified injuries including a disc prolapse and torn nerve sheathing. The vehicle from which the timber had fallen was never identified.
Mr Ford therefore pursued his CTP claim against the Nominal Defendant.
What is “proper inquiry and search”?
Section 31(2) of the Motor Accident Insurance Act 1994 (Qld) provides for a presumption that a motor vehicle cannot be identified where it is established that proper inquiry and search have been made and have failed to identify the vehicle.
This requirement became the central issue in Mr Ford’s case. The negligence of the unidentified driver and the amount of Mr Ford’s damages were not disputed at trial.
At first instance, the Supreme Court dismissed the claim. The primary judge considered that Mr Ford could reasonably have attempted to obtain the vehicle’s registration details immediately after the incident and that his failure to do so meant he had not undertaken a proper inquiry and search.
Was Mr Ford required to chase the vehicle?
The Court of Appeal disagreed with the approach taken at first instance.
Whether proper inquiry and search has occurred must be considered in light of the circumstances confronting the person at the relevant time. Those circumstances can include their physical and mental state, surroundings, and their appreciation of whether they have been injured.
Although Mr Ford felt pain following the incident, he did not believe that he had suffered an injury.
The Court recognised an important distinction between experiencing pain and knowing that an injury has occurred. Pain following a sudden jolt may subside without producing any lasting injury. The fact that Mr Ford subsequently proved to have suffered an injury did not mean that he knew this immediately after the accident.
The Court also considered the practical circumstances of the suggested pursuit. Mr Ford would have needed to accelerate on his relatively low-powered motorcycle, cross lanes on a busy road, and attempt to catch the vehicle in the hope of observing and remembering its registration number.
Proper inquiry and search did not require him to take those steps.
Were further searches required?
The Nominal Defendant also argued that Mr Ford should have undertaken further steps after the accident, including returning to the location at a similar time on another evening in the hope of seeing the vehicle again, or searching the surrounding road network.
The Court of Appeal considered those proposed searches unlikely to be productive.
The requirement for proper inquiry and search did not oblige Mr Ford to undertake speculative searches merely because it was theoretically possible that they might identify the vehicle.
The outcome
The Court of Appeal allowed Mr Ford’s appeal and set aside the orders dismissing his claim.
The Court concluded that proper inquiry and search did not require Mr Ford to undertake the additional steps advanced by the Nominal Defendant.
Judgment was entered in Mr Ford’s favour for the previously agreed amount of his claim, together with interest to be assessed if not agreed. The Nominal Defendant was also ordered to pay his costs of the original proceeding and the appeal.
Key takeaways
- A person making a claim involving an unidentified vehicle must satisfy the statutory requirement for proper inquiry and search before the vehicle is presumed unable to be identified.
- What amounts to proper inquiry and search depends on the circumstances of the particular accident.
- The assessment should consider the claimant’s situation at the relevant time, rather than approaching their conduct with the benefit of hindsight.
- Experiencing pain immediately after an accident does not necessarily mean a person knows that they have suffered an injury.
- Proper inquiry and search does not necessarily require a person to pursue another vehicle in potentially difficult or unsafe circumstances.
- A claimant is not necessarily required to undertake later speculative searches that are unlikely to identify the responsible vehicle.
This case note provides general information about a court decision and does not constitute legal advice. The outcome of any matter depends on its particular facts, evidence, and applicable law.