Ford v Nominal Defendant [2023] QCA 83
Background:
On March 11, 2019, Mr Ford (appellant) was riding his motorcycle on Redland Bay Road when a piece of wood fell from a passing utility vehicle. The appellant managed to avoid the wood with his front wheel but ran over it with the back wheel, causing the motorcycle to jump. Despite initially thinking he was fine, he later experienced worsening back pain.
After consulting with various doctors, it was revealed that he had a disc prolapse and torn nerve sheathing. This led to ongoing pain and numbness. The appellant eventually filed for workers’ compensation, and efforts were made to identify the vehicle involved in the incident, but no CCTV footage or information was found.
The appellant lodged a claim against the Nominal Defendant. An investigator engaged by the Nominal Defendant did searches and made inquiries in the local area about the possible identification of the unidentified vehicle.
Initial Decision - QLD Supreme Court:
The sole issue litigated by the respondent was whether the appellant had made a “proper inquiry and search” so as to engage the presumption in s 31(2) of the Motor Accident Insurance Act 1994 that the relevant motor vehicle “cannot be identified”. In such an event, the Nominal Defendant is the insurer. Under s 31(2) it is to be presumed that a motor vehicle cannot be identified if it is established that “proper inquiry and search have been made and have failed to identify the identity of the motor vehicle”.
The primary judge found that the appellant:
- could have, without great difficulty, observed and remembered the numberplate of the other vehicle.
- was aware, immediately after his motorcycle passed over the piece of timber, that he had suffered pain; and
- could reasonably have been expected to obtain the relevant details at the scene.
The primary judge then found that by failing to attempt to obtain the number-plate details, the appellant failed to engage in a proper inquiry and search.
Issues on the Appeal:
The essential factual issues raised by the appeal and by the notice of contention were:
- Whether, immediately after the incident, the appellant should have chased the other vehicle on his motorcycle to try and see its registration number, even though he didn’t believe he was injured.
- Whether the appellant should have returned to the scene of the incident on another evening at the same time to potentially spot the same vehicle.
Final decision – QLD Court of Appeal:
It was decided in the Court of Appeal that the appeal be accepted. The judges concluded that the appellant has established that “proper inquiry and search” did not require him to undertake the steps suggested by the respondent.