MALCOLM v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES and ANOR [1994] NSWCA 191

MALCOLM v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 26 April 1994, 23 August 1994

[1994] NSWCA 191

INJURY DUE TO ACTIONS OF UNIDENTIFIED CAR — "DUE SEARCH AND INQUIRY" REQUIREMENT

INJURY DUE TO ACTIONS OF UNIDENTIFIED CAR — claim against Nominal Defendant — Motor Vehicles (Third Party Insurance) Act 1942 s30(2)(a) — whether the "due search and inquiry" requirement satisfied.

The appellant was injured when the bus in which she was travelling stopped suddenly on the Sydney Harbour Bridge in order to avoid a collision with a white car which cut in front of it. No search or inquiry to establish the identity of the white car was undertaken by or on behalf of the appellant.

Held: (1) The "due inquiry and search" requirement of the Motor Vehicles (Third Party Insurance) Act 1942 s30(2)(a) was complied with since, in the circumstances of this case, there was in reality no possibility of any inquiry establishing the identity of the white car. (2) (per Mahoney JA dissenting) The requirements of s30(2) were not satisfied as there were areas of inquiry

which were real possibilities apt to be explored if due inquiry and search were made to discover the identity of the white car.

Mahoney JA On 8 March 1982 the plaintiff was injured when the bus in which she was travelling slopped suddenly. In 1983 she brought proceedings against the Urban Transport Authority of New South Wales (UTA) and the Nominal Defendant.

On 18 September 1990 Garling ADCJ gave judgment in favour of UTA and the Nominal Defendant. The plaintiff appealed to this Court against his Honour's judgment. The claim against UTA has been disposed of by agreement. It is her claim against the Nominal Defendant which remains for decision by this Court.

The facts are not significantly in dispute. His Honour found that on 8 March 1982 as was her habit the plaintiff boarded a bus to travel from Dee Why to Wynyard. 1t was an express bus. When it crossed the Harbour Bridge it was full and a number of the passengers were standing. What then occurred was stated by the leaned judge in his judgment as follows: