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Is a road accident injury victim required in an unidentified vehicle claim to give hot pursuit to identify an at-fault vehicle in an attempt to read and remember its registration number?
That’s exactly what was required according to Queensland’s Nominal Defendant, the insurer of unidentified vehicles under the state’s Compulsory Third Party injury compensation insurance scheme.
Postal delivery worker Trent Ford was riding his 100 cc motorcycle towards his depot at the end of his shift inbound on Redland Bay Road in March 2019 when he struck an obstacle that had fallen from the back of a ute into his path.
Badly shaken, Ford remained in one piece unbelieving of his luck at avoiding serious injury with just a jolt to his back and left ankle.
By the next morning though pain in his back and ankle had escalated and he struggled to get out of bed. He returned to work a week later on light duties and a subsequent MRI revealed a disc prolapse.
In October 2019 he reported the accident to police and in an effort to identify the ute from which the obstacle had fallen, tramped along Redland Bay Road to enquire as to the existence of any CCTV footage near the scene of the accident.
Ford needed to establish – if he were to succeed in an injury compensation claim against the Nominal Defendant – that the at-fault vehicle could not be identified after conducting “proper enquiry search”.
Justice Glenn Martin concluded that by failing to pursue the other vehicle or at least engage in “some form of reconnaissance” on nearby streets to locate it he had failed to comply with his search obligations, thereby barring his claim.
He appealed on the basis that in the immediate aftermath of the impact he was in shock and had no idea he sustained injuries significant enough to warrant an injury compensation claim.
“All I was thinking about was I’m not hurt,” Ford swore from the witness box.
The lead judgement of the appeal court was delivered by Justice Peter Applegarth who noted that a person’s apprehension of whether they have been injured is a relevant circumstance, in deciding what reasonable steps should be taken to identify the at-fault vehicle.
Likewise, the person’s physical and mental state, the location of the accident and the likelihood of obtaining information from a means of enquiry were equally relevant.
If investigations are likely to be unproductive in establishing the identity of the vehicle, those of a perfunctory nature, for example a Facebook notification or a newspaper advertisement, may be sufficient.
In this instance, it was reasonable for the in-shock Ford to not take the risk of a pursuit but instead reach the safety of his nearby depot.
The appeal judges also observed that the primary judge had failed to draw a distinction between suffering pain and suffering a compensable injury.
“The possibility that pain is due to an injury, as distinct from physical contact or other force, does not mean that the person who experiences pain knows or believes at the time that he or she has been injured,” Justice Applegarth adjudged.
Neither did the obligation to conduct proper enquiry and search require the establishment of an observation post at the accident scene on the following day or days given there was no evidence to suggest that the driver was likely to return at the same time each day.
“It seems most unlikely that on a subsequent evening the appellant would have observed and identified the same vehicle at about the same time by standing beside the road. The suggested exercise was not required in order to make “proper inquiry and search”.
The same could be said of a search of the local road network on a subsequent occasion or occasions as contended as appropriate by the Nominal Defendant. That also was “unlikely to be productive” in the appeal court’s view.
Having overcome the initial adverse ruling as a result of the appeal, Ford can now present evidence as to the extent of his injury and seek a further ruling from the court in that regard.
Ford v Nominal Defendant [2023] QCA 83 Morrison JA and Gotterson AJA and Applegarth J, 28 April 2023
Categories: Unidentified vehicle