NOMINAL DEFENDANT v BEATTIE [1996] NSWCA 401

NOMINAL DEFENDANT v BEATTIE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 25, 26 September 1996

[1996] NSWCA 401

MOTOR VEHICLE ACCIDENTS — unidentified vehicle — right of action against Nominal Defendant — due inquiry and search.

MOTOR VEHICLE INSURANCE — unidentified vehicle — due inquiry and search.

In April 1984 the plaintiff, travelling between Sydney and Canberra, sustained injuries after his motor vehicle left the road on its incorrect side, mounted an embankment and rolled over. The driver claimed that while attempting to overtake a slow vehicle it veered to its right and he was forced off the road. Section 30 (2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942 which was in force at the time provided that a claim cannot be enforced against the Nominal Defendant in respect of an unidentified vehicle unless identity cannot be ascertained after due inquiry and search. The police accident report contained the name and address of the driver of the other vehicle. A typed copy of his statement was sent to the plaintiff's solicitor in October 1984. No attempt was made to contact the other driver until April 1986. Attempts to contact the driver were made in 1986, 1987, 1988 and 1994 but he was no longer at the address provided and he could not be traced. The trial Judge found that there had been due inquiry and search.

HELD, allowing the appeal: (1) "Due" accommodates the nature and extent of the inquiry and search which is required to the circumstances of each case: Harrison v Nominal Defendant (1976) 50 ALJR 330; Slinn v Nominal Defendant (1964) 112 CLR 334 considered; (2) A finding that there had been due inquiry and search was not open because the plaintiff had made no attempt to communicate with the other driver for 18 months after learning of his identity and address.