BONNICI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 53

BONNICI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, SHELLER and POWELL JJA 16 August 1995, 16 August 1995,

[1995] NSWCA 53

APPEAL FROM DISTRICT COURT — Whether due search and inquiry had been made for unidentified driver — Trial judge held no such search — Appeal dismissed with costs.

Due search and inquiry for unidentified driver trial judge held no such search

Mahoney AP On 10 February 1987 the plaintiff, Mr Edward Bonnici, was injured in what his Honour accepted to have been a motor vehicle accident. He sued the Government Insurance Office of New South Wales for damages, that being, on the case that he was putting forward, the appropriate defendant.

On 26 June 1992, his Honour Judge Garling in the District Court, dismissed the plaintiffs claim upon the ground that the statutory requirement as to due search and inquiry to find the identity of the motor vehicle involved in the accident, had not been satisfied. The plaintiff, Mr Bonnici, has appealed to this Court against his Honour's judgment.

The circumstances are set forth in the Judge's judgment and, as I understand the matter, the basic facts are not significantly in doubt.

The defendant, at the trial, had suggested in one way or another, as his Honour records in his judgment, that the accident had not occurred as the plaintiff had said. It suggested that the plaintiff may simply have fallen off the scooter that he was riding and injured himself in that way. It should be recorded that the learned judge accepted the plaintiff's version of the evidence. He said, "I accept the plaintiff's version as he gave his evidence in a satisfactory manner. His evidence was consistent with such an accident...". The matter is, therefore, to proceed upon the basis that the plaintiff's account of the accident was substantially the correct account.