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. The judge made findings in relation to the matter which, as I have indicated, are not significantly in doubt and the argument has proceeded before us today on that basis. His Honour's findings were as follows: "On 10 February 1987 the plaintiff was riding a motor scooter. He had left work and was travelling home. It was raining at the time. The accident occurred between 3.00 and 4.00 pm on a weekday. The plaintiff was travelling in a residential area and was close to his home. He entered a round-about, he saw a white car approaching the round-about. That vehicle entered behind him, and as it passed him it hit the back tail light and handlebar causing the plaintiff to be thrown to the ground. As the plaintiff was falling he saw the white vehicle passing him. I am satisfied that the driver of the white vehicle did not see the plaintiff until he was too close and collided with the plaintiff's bike, and caused the accident, in the circumstances that the driver of the white vehicle was negligent. The white vehicle did not stop, left the scene of the accident, perhaps 2 UNREPORTED JUDGMENTS was even unaware that it caused the plaintiff to fall off his bike. Two people came to the assistance of the plaintiff. A man said he would go and chase the car. He left but has not been seen since. A lady stayed and assisted the plaintiff. He told her that he would be all right, not realising the seriousness of his injuries. The lady went to try and find the plaintiff's wife, who lived a short distance away, but his wife was not at home. Another man came to the scene of the accident. The lady then left. The plaintiff took his bike a short distance wheeling it towards his home. He could not continue, went into a house and got help and was driven to hospital. The plaintiff was treated in hospital, returned home, became ill and the next day returned to hospital where he was admitted and remained for two days. On 12 February 1987 the accident was reported to the police on behalf of the plaintiff. A record was made but no investigation carried out, and in fact the plaintiff was not interviewed by the police until 16 June 1987. He could only describe the car as a white car, he did not know what make of car it was. On 26 February 1987 an investigator from the insurance company carried out investigations, but he did not search for the unidentified vehicle. His investigation was on behalf of the Workers' Compensation insurers. On 30 March 1987 the plaintiff consulted his solicitor. An advertisement was placed in the local press in April 1990. No other search or inquiry was carried out by the plaintiff. The driver or the owner of the unidentified vehicle has not been found." His Honour then referred to the witnesses who had been present at the time and in effect indicated those of whom inquiries might have been useful. His Honour said: "T accept that the lady who came to the plaintiff's assistance could not have helped in identifying the unidentified vehicle. If she could, there is no doubt she would have said something to the plaintiff. I also accept that the third man on the scene would have told the plaintiff if he could have identified the vehicle. He did not and I am satisfied he could not have helped. The man who took the plaintiff to hospital and his wife did not see the accident and therefore could not help." In my opinion, his Honour's assessment of the position was correct. It is not an assessment which should be set aside on appeal. Dealing with the matter as on a rehearing, I would come to the same conclusion. His Honour dealt with the meaning of the statutory requirement. It is not necessary, I think, to examine in detail the precise form of the requirement as his Honour understood it, or the principles which his Honour sought to derive from the decisions which have been given upon the section and upon analogous sections. (See, for example, Harrison v The Nominal Defendant 50 ALJR 330; Lawrence v The Nominal Defendant, a decision of the Court of Appeal, 2 July 1984, and the decision in Malcolm v Urban Transit Authority of New South Wales, a decision of the Court of Appeal, 23 August 1994.) Mr Webb, in his submissions, has suggested that his Honour erred in one or two respects in his understanding of the test to be applied. In so far as it may be relevant, I am not satisfied that, in considering whether due search and inquiry has been made, it is not relevant to bear in mind that one of the purposes of the statutory requirement is to give the Nominal Defendant, or other the defendant set up by the legislation, the opportunity to test not merely the facts of the negligence but whether the accident took place as the plaintiff contended. But however that be, and putting that aside, if the matter be approached merely on the basis that Mr Webb has suggested, I do not think that, as on a rehearing, the appeal should succeed. URANNICI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JAB His Honour, in the course of a careful judgment, referred to at least four matters in relation to which he thought there was defect in what had been done. It is proper to record that the proceedings in the District Court had been commenced by the plaintiff as early as 13 April 1987. It is not clear, at least there is no finding, as to when the plaintiff saw his solicitor, but it appears from the date of the commencement of the proceedings that he was in touch with his solicitor at an early stage. The proceedings in the District Court proceeded reasonably rapidly in that on 9 June 1987 a defence was filed which put in issue the due search and inquiry requirement and in July 1987 an amended statement of claim was filed dealing with, inter alia, that particular matter. It was therefore clear that the statutory requirement was brought to the attention of the plaintiff and his legal advisers at an early stage. Notwithstanding this, there was, as his Honour pointed out, no or little attempt to comply with the statutory requirement. His Honour, in the course of his judgment, referred to the "gentleman" who, at the scene immediately after the accident, indicated that he would go off and "chase the car" to endeavour to find the identity of the person. By the time the plaintiff left the scene that person had not returned. His Honour recorded that no attempt was made to find him or to find out what was discovered. His Honour said, "For all we know he may have found the vehicle or its owner or its driver'. His Honour then recorded that no attempt had been made to find if there was any witness who might have been able to identify the vehicle. No search by way of, as it was described, "door knocking" was undertaken. In so far as a report was made to the police, it is understandable that, having regard to the sparsity of that report, they thought it was not practicable to make further inquiries at the time in question, namely by about June 1987. His Honour recorded that for a number of years no advertisements were placed in the newspapers directed to ascertaining what had occurred from people in the area who might have known something about the matter. And, as I have said, there was no action by way of visiting homes in the vicinity to inquire what had been seen. These are steps as to which there would be, not a probability, but at least a possibility that something might have been found which would have assisted in finding who was the person involved in the accident. It is not necessary that there be a probability that the identity of the person will be discovered; it is, in my opinion, sufficient if there be a possibility, something which is not merely, for example, fanciful, that information could or might have been obtained. None of those matters were pursued. In all the circumstances, I do not think that the statutory requirement was satisfied. I agree with the finding of the trial judge. I would propose that the appeal be dismissed with costs. Sheller JA I agree. Powell JA Although, when I first read the appeal papers, I was disposed to think that the learned trial judge had erred, having had the advantage of reading the submissions of Mr Di Suvero, who appears today for the respondent, and the various passages in the transcript to which he referred us, I have come to the conclusion that my initial view was in error. This, so it seems to me, is not a case in which it can be said, of necessity, that the identity of the vehicle could not be established by due search and inquiry, in which event, even though there had been no search, the statutory condition would 4 UNREPORTED JUDGMENTS have been fulfilled. As Mahoney AP has pointed out, the learned trial judge pointed to a number of aspects of the evidence which tended to suggest that there may have been a prospect of obtaining further information which could lead to the identity of the vehicle in question. This being so, as I previously indicated, my initial reaction was misconceived, and I join Mahoney AP and Sheller JA in the order that the appeal should be dismissed with costs. Mahoney AP: The order of the Court is: Order that the appeal is dismissed with costs. COUNSEL: Appellant: RJ WEBB Respondent: HM DI SUVERO SOLICITORS: Appellant: NICHOLAS EDDY AND CO Respondent. GOVERNMENT INSURANCE OFFICE - PARRAMATTA REGION