Judgment date: 4 April 2012
Nominal Defendant v Meakes  NSWCA 66
NSW Court of Appeal1
- 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:
- there has been 'due inquiry and search', but that the identity of the relevant vehicle has not been established; or
- 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:
- 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.
- 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.
- The plaintiff was not severely incapacitated so that he was unable to record the registration number of the vehicle.
- 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.
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%.
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  NSWDC 9
3 (1974) 7 ALR 680
4  HCA 57; 100 CLR 375 at 380 - 381
5  HCA 34
6  HCA5; 182CLR 1, at 16
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