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: Mr Wade [the bus driver] gave evidence that the bus was travelling in a southerly direction across the Harbour Bridge on the Bradfield Highway at about 8:00 am in Lane 4 which meant that there was one lane of south bound traffic on his right and two lanes of south bound traffic on his left. He said that the bus was travelling in a flow of traffic at about 50 kph when whilst approximately half way across the bridge a white car which was also travelling in a south bound direction in the lane to his right cut in in front of the bus without giving any indication and then stopped suddenly. Mr Wades reaction to this was to immediately brake so as to avoid a collision. He said that he applied the brakes very hard and had no opportunity to give any of his passengers a warning that he was about to do so. 2 UNREPORTED JUDGMENTS He said that immediately after applying his brakes he turned his head towards the passengers to see what had happened and whether any of them were hurt because he was aware of the fact that some passengers who had previously been standing had as a result of his sudden stopping tumbled to the floor or at least had been swung around. Having made his enquiry he then proceeded to the destination of the bus at Wynyard. The distance between his applying the brakes and coming to nearly a complete stop was between 10 and 15 metres. He successfully avoided a collision with the rear of the white car which car drove off in a southerly direction oblivious to the mayhem which on Mr Wade's evidence it had caused. The plaintiff brought her action against the Nominal Defendant in reliance upon the special cause of action created by s30(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942: see Blandford v Fox (1945) 45 SR 241 at 245 per Jordan CJ. (S30 was the provision in force at the time of the accident. The trial and the appeal have proceeded upon the basis that the plaintiffs rights are governed by that section and that the subsequent repeal of s30 and the amendments to the Act do not affect her position. I shall, without so deciding, deal with the matter on that basis). S30(2)(a) provides that where bodily injury to a person "is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due inquiry and search be established" the injured person may enforce a claim for damages against the Nominal Defendant. It is accepted that, in order to succeed in her claim against the Nominal Defendant, the plaintiff was required to show that the requirements of the words "but the identity of the motor vehicle cannot after due inquiry and search be established" were satisfied by her. The learned trial judge held that they were not. It is his Honour's finding on that matter which alone has been argued in the appeal. The construction of this provision has been considered by the High Court: see, eg, Harrison v The Nominal Defendant (1976) 50 ALJR 330; see generally Lawrence v The Nominal Defendant (Court of Appeal, 2 July 1984, unreported). At the trial, it was conceded that no search or inquiry had been undertaken by or on behalf of the plaintiff. The plaintiffs case was that (as the learned judge recorded) "I should find that nothing the plaintiff could have done was likely to establish the identity of the vehicle". On that basis, the plaintiff relied upon what was said by Barwick CJ in Harrison' v Nominal Defendant (1976) 50 ALJR 330 at 332: "Tf in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due inquiry and search, the stipulation in my opinion, may be held to be established, although no inquiry or search destined to be futile has been made. The section does not, in my opinion, require that in every case, irrespective of its circumstances, some inquiry and search should have been made." His Honour did not accept the plaintiffs submission that "any inquiry would have been futile". His Honour said: "There was in this case in my view a real possibility that the plaintiff could have ascertained the identity of the vehicle from those passengers on the bus who had witnessed the accident. There were a number of methods of establishing whether or not those passengers who had witnessed the incident could have established the identity of the motor vehicle. They were: (a) to make inquiries of the first defendant to ascertain what if anything the first defendant had been told; and URUALCOLM v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES (Mahoney JA) 3 (b) to independently seek to interview the regular passengers on that bus to establish if they had observed the identity of the vehicle; and/or (c) to encourage witnesses to come forward by placing notices at those bus stops at which the express bus following Route 178 would stop. I doubt however that any published advertisement in a local payer particularly having regard to the fact that no collision occurred would have resulted in any identification of the vehicle. Such inquiry would have been futile. However since there was in my view a real possibility of ascertaining the identity of the motor vehicle there was an obligation upon the plaintiff to satisfy me positively by evidence that due inquiry and search had been undertaken." His Honour concluded accordingly that the plaintiff had "failed to satisfy me that she has complied with the provisions of the Motor Vehicles (Third Party Insurance) Act 1942". There are inter alia, two questions which arise in the construction of such a provision as s30: what is the nature of that which the relevant words require; and what is the extent to which inquiry and search must actually have been made. In relation to the first of these two views are open. On the first the words require the plaintiff to show that as a matter of probability due inquiry and search would not lead to the identification of the motor vehicle in question; on the second what the section looks to is merely the existence of something less than a probability (eg "a real possibility") that if a particular inquiry or search had been made the identity of the vehicle would have been discovered. Counsel were not able to refer the Court to any decision in which the nature of the inquiry and search has in this regard been considered. If the matter were free of authority and the meaning of the section were to be decided simply by construction of its words the reasoning process would I think be of the following kind. The section would require the plaintiff to prove to the satisfaction of the Court that "the identity of the motor vehicle cannot... be established". It would not be necessary to show that this "cannot" be done in the sense that there is no possibility that it could be established. What is to be shown is that if "due inquiry and search" were to be made or has in fact been made the identity would yet not be established or has not been established. Of course that is not to be shown beyond all doubt: it is sufficient that the Court be satisfied that it would be or is so as a matter of judicial satisfaction upon the Briginshaw principle. If it appears that "due inquiry and search" would have involved pursuing something that has not been pursued the Court will consider whether the likelihood that pursuit of it would lead to identifying the vehicle is such that the Court should not be satisfied that its identity "cannot be established". Second, it is not clear from the section precisely what must be done in order, in the particular case, to satisfy the phrase "due inquiry and search". It is clear that the inquiry and search need not be undertaken by or on behalf of the plaintiff herself: it may be undertaken by another. But it is not clear whether it is, as it were, due inquiry and search in the abstract which is in question or whether, futility apart, it is necessary to show that some inquiry and search has been carried out. The submissions of Mr Quinlivan for the Nominal Defendant suggest that it is not necessary for the Court to determine these questions because, on any view the statutory requirement was not satisfied in the present case. Considered at the time of the accident there were a number of persons who might have been able to give information which on inquiry and search would or might have led to the identification of the motor vehicle that caused the accident. 4 UNREPORTED JUDGMENTS The bus driver Mr Wade saw the vehicle. A passenger Dorothy Hawker also claimed to have seen it. The vehicle came from the off-side of the bus and turned suddenly in front of it and accordingly it might well have been seen by any of the passengers seated on the off-side of the bus and possibly passengers standing in the aisle in the bus and looking towards that side of it. In addition it was or might be open to inference that the occurrence had been the subject of investigation by UTA and that accordingly some information might have been discovered in that investigation which upon inquiry and search would have led to discovery of the identity of the vehicle. As I have said it was conceded at the hial that no inquiry or search at all was undertaken by or on behalf of the plaintiff. At the trial Mr Wade was called for the plaintiff. He could say only that it was "a white car" "a sedan" "but that is about all". In cross-examination he was asked whether he had any "recollection of what brand the car might have been" and he said "Only assumptions sir that is all". His assumptions were not pursued. Following the incident Mr Wade had made a formal report to UTA. That report was marked for identification at the trial but was not tendered. It does not appear whether there was anything in it which might have led to the identification of the white motor vehicle. Mrs Hawker was also called as a witness for the plaintiff. His Honour concluded that little reliance could be placed upon the accuracy of her recollection as to what occurred. She had some time after the incident, filled in a questionnaire provided to her by UTA but nothing in that questionnaire was of assistance. It was an exhibit at the trial. The questionnaire did not in terms seek an identification of the vehicle. She was not asked in evidence questions which would lead to an identification of the white vehicle. It may be inferred from the evidence generally that there were several people in the bus who might well have been, able to speak as to what occurred. Mr Wade indicated that when the bus arrived at Wynyard an inquiry was made of passengers to see who had witnessed what had taken place. It is to be inferred that several people offered themselves as witnesses: it did not appear what precisely they could have said. Considerable discussion took place during the argument of the appeal as to whether inferences could be drawn as to the record made by UTA of what had taken place and what inferences could be drawn. It was in effect suggested that it could be inferred that a file had been kept that investigations had been made by UTA that UTA would have recorded the result of its investigations on the file that the file was available at the trial, that inspections of it were or could have been made and that the assistance apt to be given by such witnesses would have appeared on the file. The suggestion was I think that because of such inferences it was open to the plaintiff to contend that no pursuit by her of the persons on the bus or the persons who had come forward as witnesses would have been of any assistance in identifying the motor vehicle and that accordingly she had sufficiently established the statutory requirement. I do not think that it is necessary or profitable to pursue one by one the inferences suggested as open to be drawn and appropriate to be drawn from what in this regard occurred at the trial. There were in my opinion, inquiries which could appropriately have been made which might have led to the identification of the motor vehicle. The bus was an express bus with few stops between Dee Why and Wynyard. The persons in the bus on the morning of the incident might well have observed the number of the vehicle, its brand, the name of the dealer from whom the vehicle was bought displayed on its back window or something else URMALCOLM v URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES (Priestley JA) 5 which might have started a line of inquiry. An inquiry, properly pursued, might have been made of "regulars" on the bus or those whose "habit" it was to travel on it. Those whose names were recorded may well have known others who were on the bus. It was not done by or for the plaintiff. I would not infer that this was done by UTA. But whatever be the inferences to be drawn as to the existence of the UTA file and as to what appeared in and from it, there were other matters as to which inferences from it provide no answer. Failure to do such things is, in my opinion, relevant in determining whether the statutory requirement has been satisfied. It cannot be said of any one such inquiry that, considered as a matter of probability, it would more probably than not have let to the identification of the motor vehicle. But matters of this kind were real possibilities apt to be explored if due inquiry and search was made to discover its identity. If they were not explored, it was proper to hold that "due" inquiry and search had not been made. If this be so, then it was open to the judge, on the facts of this case, to conclude that the statutory requirements were not satisfied. In my opinion, therefore, the judgment of the learned judge should not be set aside. It is not necessary to consider whether each of the four matters to which his Honour referred in his judgment is properly to be drawn from the evidence and to be relied upon. It is sufficient to say that there were matters of the general kind to which I have referred upon the basis of which his Honour's ultimate conclusion can be justified. I have come to this conclusion with some regret. Mr Bartley, for the plaintiff, has pointed out, in my opinion correctly, that in this case the evidence before the Court establishes that the plaintiff suffered injury which was caused by the negligent driving of the other motor vehicle. If she could identify the vehicle or the driver she could recover for such loss as she has suffered. His Honour accepted that there was such a vehicle and that its negligence caused the incident. At the time there was the strong likelihood that the liability of the Nominal Defendant would in effect be funded by the Government Insurance Office as it was then constituted. One of the purposes of requiring due inquiry and search is of course that there be evidence that there was in fact an unidentified motor vehicle. Where that has been established otherwise it is unfortunate that the right of action generally available under the legislation is not available because due inquiry and search was not made at the relevant time. But whatever meaning be given to the statutory requirement I do not think that it was satisfied in this case. The appeal as far as it relates to the Nominal Defendant should be dismissed with costs. Priestley JA The circumstances of this appeal are sufficiently set out in the reasons of Mahoney JA for me to be able to state my own opinion chiefly by reference to them. The "due inquiry and search" referred to in s30(2)(a) of the Motor Vehicles (Third Party insurance) Act 1942 were not undertaken by or on behalf of the plaintiff. That of itself did not mean the plaintiff was bound to fail: Harrison v Nominal Defendant (1976) 50 ALIR 330 per Barwick CJ at 332. If the plaintiff could establish that nothing she could have done was likely to establish the identity of the vehicle which had caused the accident, then, on the basis of what Barwick CJ said in Harrison, the "due inquiry and search" requirement of s30(2)(a) would be complied with. In my opinion, on the material that was before him, the trial judge should have made such a finding. The circumstances of the sudden braking of the crowded bus were such that it was unlikely in the nature of things that any person on the 6 UNREPORTED JUDGMENTS bus saw and remembered the number of the "white car". It seems to me to be quite safe to say in view of the evidence of the driver of the bus and upon the probabilities that the driver did not see and remember the white car's number. Had he done so I find it difficult to think that counsel for the Nominal Defendant would not have known the fact and would not have brought the plaintiff's case to an abrupt end by bringing it out in evidence. It was clear from the appeal papers that there was material before the court from which it was safe to infer that the Urban Transit Authority had immediately made enquiries from passengers on the bus about the circumstances of the accident. Again I find it hard to believe that if there were any material in that Authority's possession, which might have led to the establishment of the identity of the white car that it was neither known to the Nominal Defendant nor used by the Authority to add another party to the proceedings. In short it seems to me reasonable to infer that there was in reality no possibility of any enquiry and search establishing the identity of the white car because of the following factors: (a) the circumstances of the incident itself; (b) the evident lack of knowledge of the bus driver of anything likely to assist in establishing the identity of the white car; (c) the fact that enquiries were promptly made by the Authority; and (d) notwithstanding (c) neither defendant each a well funded public body assumed to be quite competent to conduct its affairs efficiently showed any sign at the trial of being in possession of any material capable of establishing the identity of the white car. On this fooling, and basing myself on what Barwick CJ said in Harrison at 332, I am of opinion that the plaintiff made out the requirements of s30(2)(a) at the trial. I would therefore uphold the plaintiffs appeal, set aside the judgment against her, order the Nominal Defendant to pay her costs of the appeal, and order a new trial of the action in the District Court, where the costs of the first trial should abide the fate of the second. Meagher JA I agree with Priestley JA. (By majority) 1. Appeal upheld. Judgment below set aside. Nominal Defendant to pay appellant's costs of the appeal. 2. 3. 4. Order a new trial of the action in the District Court. 5. Costs of the first trial to abide the outcome of the new trial. Counsel for the Appellant: A J Bartley/W S Strathdee Solicitors for the Appellant: Worthington Storey Counsel for the Respondent: (2) A P Quinlivan Solicitors for the Respondent: (2) Solicitor for Government Insurance Office of NSW