Australia: The Section 34 due inquiry and search requirement will likely fail if there was no difficulty in ascertaining the identity of the responsible vehicle

Curwoods Case Note
Last Updated: 11 April 2012
Article by Nabil Ghattas

Judgment date: 4 April 2012

Nominal Defendant v Meakes [2012] NSWCA 66

NSW Court of Appeal1

In Brief

  • The due inquiry and search under s 34 of the Motor Accidents Compensation Act 1999 may not be met if there was an opportunity to identify the offending vehicle.
  • What constitutes due inquiry and search must depend on the circumstances of the case, including the circumstances of an injured person.
  • The test of contributory negligence is an objective one and relates to the degree of care a person has taken for their own safety that an ordinary person would take.
  • A person is compensated for loss of earning capacity and not loss of earnings.


The case was heard in the District Court of New South Wales before Judge Levy2 at first instance. Judge Levy found in favour of the plaintiff and awarded damages in the sum of $433,565. The Nominal Defendant, represented by Allianz, appealed to the Court of Appeal.

On 1 August 2008, the plaintiff, a Partner at a law firm, was crossing a busy city intersection on a marked pedestrian walkway walking between gridlocked vehicles. As he was concluding his crossing he was struck by an unidentified vehicle in the kerbside bus lane. The driver of the unidentified vehicle alighted and had a brief conversation with the plaintiff. The plaintiff remained at the scene for a short period and then proceeded to his business appointment, without first recording the details of the offending vehicle.

As a consequence, the plaintiff brought a claim against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (MAC Act). At the time of the accident, s 34(1) was worded slightly differently to the current section and read as follows:

" (1) An action for the recovery of damages in respect of the death of or injury to a person caused by the plaintiff of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant."

It was common ground that the plaintiff bore the burden of establishing that the requirement of s 34(1) was satisfied.

Due Inquiry and Search

His Honour Sackville AJA referred to the High Court judgment in Harrison v Nominal Defendant3 with respect to the identification of a vehicle which cannot be established. Specifically, reference was made to the judgment of Barwick CJ at 682:

"... if, in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due search and inquiry the stipulation, in my opinion, may be held to be established, although no search or inquiry destined to be futile has been made ... the presence of the word 'due' in the subsection emphasises that the question is whether the identity of the vehicle cannot be established though such search and inquiry as might appropriate be made in the circumstances of the case had taken place."

Sackville AJA noted that this was a case where there was no doubt with respect to whether the accident had occurred and that the plaintiff suffered injuries as a consequence of an accident. However, Sackville AJA at 54 noted that:

"... the legislation must be applied according to its terms. In order to satisfy s 34(1) of the MAC Act, a plaintiff may show that the identity of the vehicle responsible for the accident cannot after due inquiry and search be established. It is true that neither the plaintiff nor the plaintiff's agents need themselves to conduct inquiries. Nor, as Harrison demonstrates had the courts insisted on inquiries that are likely to prove futile or purely ritualistic. Indeed, it is possible, depending on the circumstances, for a plaintiff to satisfy s 34(1) without any inquiries ever having been undertaking by anybody."'

Sackville AJA at 55 held that:

"... a plaintiff must show, to the appropriate standard, that:

  1. there has been 'due inquiry and search', but that the identity of the relevant vehicle has not been established; or
  2. although there has not been due inquiry and search, such an inquiry and search would not have established the identity of the relevant vehicle."

Sackville AJA noted that due inquiry and search needs to be considered with reference to the circumstances of the case, including (in the case of personal injury) the circumstances of the injured person (Per Dixon CJ Cavanagh -v- Nominal Defendant 4).

Relevant to this case:

  1. The plaintiff could have easily ascertained the identity of the vehicle as the driver did not abscond from the scene and in fact had a conversation with the plaintiff.
  2. The plaintiff, immediately after being struck by the vehicle, knew that he had sustained injuries and they were caused by the actions of the driver of the vehicle that struck him.
  3. The plaintiff was not severely incapacitated so that he was unable to record the registration number of the vehicle.
  4. The plaintiff is a Partner of his own law firm and did not suffer from any disabilities or want of information that may have impacted on his ability to record details of the unidentified vehicle. Circumstances which would be relevant would include a lack of English or lack of familiarity with local laws and customs which may be applicable to a recent arrival.

Sackville AJA considered the plaintiff to be a reasonably informed member of the community and he would have been expected to know that he was injured in a motor vehicle accident and may be able to claim compensation for his injuries.

Sackville AJA held that this is a rare case in which a trial judge's findings with respect to s 34(1) of the MAC Act had been satisfied should be set aside. The relevant circumstances of the case were expressed at 72 as follows:

Unlike most cases involving 'due search and inquiry', the identity of the vehicle that struck the respondent was rarely ascertainable by him, and he made a simple enquiry at the scene of the accident;

The respondent was aware at the time of the accident that he had suffered injuries as a result of being struck by the motor vehicle;

The respondent was not so injured as to be unable to perform the simple task of recording the registration details; and

An injured person in the situation of the respondent could reasonably have been expected to obtain the relevant details at the scene."

His Honour noted that whilst each case would be dependent on its own circumstances, in this case the plaintiff could have easily identified the registration number of the vehicle at the scene of the accident.

Contributory Negligence

The Court considered contributory negligence for the sake of completeness as it was determined at first instance.

At 80 Sackville AJA stated as follows:

"The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman 5."

His Honour held that on the evidence the plaintiff failed to take the degree of care for his own safety that a reasonable person in his position would have. The plaintiff emerged from between stationary vehicles while walking at a fast pace. He was not looking at oncoming traffic and as such failed to take the most basic precautions. His Honour disagreed with the primary judge's findings that the plaintiff was not contributorily negligent. Contributory negligence was assessed at 25%.

Economic Loss

The Court also considered economic loss for the sake of completeness as it was determined at first instance.

The primary judge awarded a buffer of $60,000 for past economic loss and a buffer of $250,000 for future diminution of earning capacity.

The principles to be applied with respect to economic loss are that a plaintiff is compensated for loss of earning capacity, not loss of earnings (Per McHugh J Medlin v State Government Insurance Commission 6).

In this case it was not argued that the plaintiff had lost pre-accident earning capacity.
His argument was that his injuries impaired his ability to attract business to the firm.

His Honour disagreed with the judge's primary findings as the evidence did not support the plaintiff's contention that his impaired ability to participate in sporting activities, for the purposes of entertaining clients, reduced his earning capacity. His Honour at 101 noted:

"... the primary judge relied on the respondent's claim that his marketing abilities had been impaired, but this seems to have been an assertion rather than a claim supported by objective evidence."

His Honour found that essentially the evidence did not support the plaintiff's assertion that his post-accident earnings were affected by his injuries. As such the award with respect to past economic loss was reduced to $10,000 in respect of loss of past earning capacity subject to 25% contributory negligence. His Honour allowed nothing for future loss of earning capacity. There were also submissions by the defendant with respect to loss of superannuation and it was found that the plaintiff had not discharged his burden of proving that he had lost any entitlements to superannuation mainly due to deriving his income from frank dividends rather than a salary.


This case demonstrates that due inquiry and search pursuant to s 34(1) is dependant on circumstances of the case including the circumstances of the injured person. The Court did acknowledge that this was a novel case but if the identity of the vehicle is ascertainable to a reasonable person, then the claim may fail the due inquiry and search threshold.

Contributory negligence may be higher if the plaintiff is unable to recall whether they were crossing with or against lights on a pedestrian crossing. The onus on the plaintiff is to keep a proper lookout for oncoming traffic.

Economic loss buffers will be hard to maintain if the plaintiff is unable to show a loss of earning capacity, rather than loss of earnings.


1 McColl JA, Basten JA and Sackville AJA
2 Meakes v Nominal Defendant [2011] NSWDC 9
3 (1974) 7 ALR 680
4 [1958] HCA 57; 100 CLR 375 at 380 - 381
5 [2003] HCA 34
6 [1995] HCA5; 182CLR 1, at 16

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.