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. Handley JA. On 6 April 1984 the plaintiff was driving from Sydney to Canberra where he had an appointment for a job interview. At about midday, near Collector, he was involved in a serious motor car accident in which he sustained head and other injuries. It seems evident that his car left the road on its incorrect side, mounted an embankment, then returned towards the highway, struck a causeway and rolled over. The plaintiff was taken to Canberra Hospital by ambulance and he does not have a complete recollection of the events leading up to the accident. However, he claims to recall, without the benefit of the hypnotherapy that he had later in order to improve his recollection of the relevant events, that there was a slow vehicle in front, that he attempted to overtake that vehiclewhich then veered to its right, and that in taking evasive action the plaintiff's vehicle left the road and the accident occurred. On 8 May the plaintiff was discharged from Canberra Hospital to Lidcombe Hospital, where he remained until late in June or possibly early July that year. He first consulted his original solicitor, Mr Birzulis, on 6 September 1984. Unfortunately, Mr Birzulis died prior to the trial, and the case was taken over by Mary Khoury, the plaintiff's present solicitor. Legal proceedings were commenced in March 1986 joining as defendants a Mr Lindsay O'Brien, who 2 UNREPORTED JUDGMENTS was alleged to have been the driver of the slow vehicle in front and the Nominal Defendant. Mr O'Brien was never served with process and the action proceeded against the Nominal Defendant alone. The action came on for trial before Garling DCJ who, in a reserved judgment delivered on 8 September 1994, found a verdict for the plaintiff for $344,649. The Nominal Defendant has appealed on a number of grounds, and it will be convenient to consider first the appellant's challenge to the Judge's finding that there had been due inquiry and search. On that issue, the Judge simply said: There is an argument about due inquiry and search and I am satisfied that there was adequate due inquiry and search and I am satisfied that the plaintiff or someone on his behalf did enough to satisfy those requirements. I am further satisfied that the probable driver of the defendant's vehicle cannot be located. The provisions of the Motor Vehicles (Third Party Insurance) Act 1942 which are relevant in this case are those which were in force at the date ofthe accident. Although the Act was extensively amended later in 1984, by Act No 86 of 1984, the amendments made by that Act, including those to the Nominal Defendant provisions were not retrospective, see Sch 6 cl 2. In the case of an unidentified motor vehicle, the relevant provision was s 30 (2)(a) which provided: Where the death of or bodily injury to any 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, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the Nominal Defendant the claim which he could have enforced against the owner or driver of the motor vehicle. I should perhaps mention that s 30 (2)(b) required notice of intention to make such a claim against the Nominal Defendant to be given within three months after the accident, or within such further time as the Court might allow. It does not appear that such a notice was ever given in this case, but the point was never taken. The right of action against the Nominal Defendant required the plaintiff to establish that the identity of the motor vehicle cannot after due inquiry and search be established. The decision of the High Court in Harrison v Nominal Defendant (1976) 50 ALJR 330, and the earlier decision in Slinn v Nominal Defendant (1964) 112 CLR 334, establish that there need not be evidence of search and inquiry in every case, and that the word 'due' accommodates the nature and extent of the inquiry and search which is required in the circumstances of each case. The P 4 police accident report, signed by Senior Constable Wells from Collector Police Station on 20 April 1984, discloses as a witness a Mr Lindsay O'Brien of 18 Glenorchy Street, Lyons ACT. The plaintiff was assisted at the scene by a nurse, Robyn Jenkins, who had not witnessed the accident. By a strange coincidence while the plaintiff was on weekend leave from Lidcombe Hospital he met Miss Jenkins and learnt of the existence of Mr O'Brien. This meeting occurred, of course, before the plaintiff consulted Mr Birzulis. The Court may infer that the meeting with Miss Jenkins had something to do with the plaintiff consulting a solicitor. Thereafter a statement, given by Mr O'Brien to the police, came into the possession of the plaintiff's solicitor, but it does not appear when this occurred. The statement is dated 25 October 1984 and is in the following form: URJ NOMINAL DEFENDANT v BEATTIE (Handley JA) 3 I was driving south along the Federal Highway along Lake George. There was a blue car behind me. I looked in the rear view mirror, and the car appeared to veer across the roadway onto the wrong side. He then ran off the road and up an embankment, along for about 50 metres, and then flipped over and landed back on the roadway. The statement indicates that the original, which was signed by Mr O'Brien, was recorded on pp 45 and 46 of the official police notebook on issue to Constable 1/C of Collector Police Station. The Court may infer that the typing up of this statement on 25 October occurred at the request of the solicitor for the plaintiff. It does not appear when and where the statement was taken from Mr O'Brien by Constable Wells, but it is a reasonable inference from the P 4 form, with its description of the accident and the identification of Mr O'Brien as a witness, that thestatement was taken at the scene of the accident. The plaintiff had been driving a blue car. When this statement came into the possession of the plaintiffs solicitor, he knew that Mr O'Brien was the driver of the vehicle that the plaintiff had attempted to overtake. The plaintiff's solicitor may have become aware of the existence and identity of Mr O'Brien and his address in the ACT earlier when he obtained a copy of the P 4 form from the police. At some stage, probably during November or December that year, the plaintiff went back to the scene of the accident, as described in the P 4 report, and took photographs of the area. He also went to Collector Police Station and took photographs of his damaged car. It does not appear that any action was taken during 1984 or the following year to follow up the information about the existence and whereabouts of Mr O'Brien. The proceedings were commenced in March 1986, and the plaintiff's solicitor then made attempts to locate Mr O'Brien, no doubt in part for the purpose of serving process on him. Such attempts were made, commencing from late April. I need not record the various steps taken thereafter from time to time during that year, 1987, 1988 and 1994 to locate and serve Mr O'Brien. It seems clear that he was no longer at the address recorded in the P 4 form and in his statement to the police officer. Attempts to locate him through searches of the electoral rolls and of licensing and vehicle registration records and inquiries at his former address proved unavailing. The problem in the present case, therefore, is whether the steps taken between September 1984, when the plaintiff first consulted Mr Birzulis, and April 1986, when the first serious attempts appear to have been made to communicate directly with Mr O'Brien, constitute due inquiry and search within the meaning of s 30 (2)(a) of the Act. In my opinion, they do not. Effectively, the evidence discloses that no action was taken until more than two years after the accident to endeavour to locate and serve Mr O'Brien, despite the information available to the plaintiffs solicitor, in October-November 1984, if not earlier, of his existence and the address at which he had resided in April of that year. When attempts were made to trace Mr O'Brien in 1986, it was no longer possible to do so, and the trail had gone cold. Further attempts made in later years were equally ineffective. This is an unusual case where it may be inferred that the existence, identity and address of the driver of the unidentified vehicle became known to the plaintiff's solicitor within six months of the accident, if not earlier. In the light of these circumstances, the failure for a further 18 months to take any effective steps to communicate with Mr O'Brien demonstrates, in my view, that due inquiry and 4 UNREPORTED JUDGMENTS search was not made in this case, and that the condition precedent to the plaintiff's right of action against the Nominal Defendant has not been made out. In these circumstances there is no need for me to express any view on the other challenges to the judgment of the trial Judge, including those based upon the alleged recollection of the plaintiff following hypnotherapy. I would therefore propose that the appeal be allowed, the judgment of the trial Judgeset aside, and in lieu thereof there be judgment for the defendant in the action with costs. The respondent should pay the appellant's costs of the appeal, but is to have a certificate under the Suitors Fund Act. Clarke JA. I agree. Cole JA. I also agree. Clarke JA. The orders of the Court will be as Mr Justice Handley has announced. Orders accordingly. Counsel for the appellant: R C Tonner Solicitors for the appellant: Moray and Agnew Counsel for the respondent: E Wasilenia Solicitors for the respondent: Mary Khoury: Rydalmere