A harsh decision was handed down by the Supreme Court of Queensland this year rejecting a claim by an injured motorbike rider who failed to make proper inquiries following a motor vehicle accident.
The circumstances of the accident were that a truck and motorbike were travelling on a motorway when the truck overtook the motorbike and a piece of timber from the rear of the truck slipped off and landed in the path of the motorbike. The motorbike rider was unable to avoid the piece of timber, and it caught the rear tyre. The rider was injured by the jarring impact of the timber but was able to continue riding without losing control. He did not however record the registration plate of the truck ahead of him.
Had the truck’s registration number been recorded, a simple search via the Motor Accident Insurance Commission would have revealed the relevant compulsory third party (CTP) insurer, allowing the motorbike rider to bring his claim against the CTP insurance policy.
Because the injured claimant did not know the registration number, he brought his claim against the State of Queensland’s Nominal Defendant instead.
Suing the Nominal Defendant as the insurer of an unidentified vehicle
In Queensland, when at-fault motor vehicles are unable to be identified, or in circumstances where the vehicle does not have compulsory third party insurance, the State’s Nominal Defendant is capable of being sued in the place of a standard compulsory third party insurer. When suing the Nominal Defendant under the Motor Accident Insurance Act 1994 (Qld) on the basis of being unable to identify the at-fault vehicle, there is a presumption set out at Section 31(2) that “proper inquiry and search“ has been undertaken by the claimant which failed to establish the identity of the at-fault vehicle.
The Nominal Defendant opposed the claim on the basis that the injured motorbike rider did not make proper inquiry and search which would have revealed the truck’s registration plate, and therefore a ‘proper’ CTP insurance company to be sued instead.
A claim was brought before the court to determine whether, on the facts, proper inquiry and search had been made by the motorbike rider in the circumstances. The court said that the motorbike rider only had to do what was reasonable in the circumstances with respect to making inquiries and searches. Effectively, if the motorbike rider did all that was reasonable, he would win his claim. But if he did not make reasonable inquiries and searches, he would lose.
The key circumstances were that the motorbike rider:
- saw the piece of timber drop off the truck when the truck was about 10 metres ahead of him;
- felt a degree of pain riding over the piece of timber and knew he had been injured by it, in addition to being frightened by the impact;
- was travelling slower than the truck;
- was unable to see any signage on the truck in front of him to help identify it;
- had the truck in view for about 25 seconds, with traffic around him at the time;
- said he could have positioned himself so that he could see the registration number of the truck but made no attempts to do so;
- attended the scene the following day and took photos of the site;
- only saw a doctor about 4 months later when his symptoms did not fully resolve;
- made enquiries with a solicitor about 7 months after the incident about his right to claim and subsequently:
- made inquiries with three businesses in the area to attempt to obtain CCTV from the time (unsuccessfully);
- engaged an investigator to make further inquiries.
First Court Decision
The court considered the circumstances and held that because the motorbike rider admittedly could have put himself in a position to observe the registration details of the truck, and did not take any other immediate or urgent enquiries at the time, he did not make proper enquiries and searches.
Accordingly, the presumption of Section 31(2) was successfully rebutted, disentitling the motorbike rider to bring his claim against the Nominal Defendant.
The motorbike rider’s claim was dismissed.
Is it reasonable for a motorbike rider who simply had a possibility of gaining a view of the at-fault truck’s registration number for a matter of seconds to have somehow recorded it? Whilst registration plates are typically only 6-digits, it is not always easy to remember details like that. The decision implies that there was an expectation that the motorbike rider should have done so. Realistically, the process required by the rider would therefore have been for him to (whilst in a state of shock) sight the truck’s registration number, pull over to the curb or a safe space on the motorway, dismount and then note the number plate correctly on his phone (if he had one on him) to be able to properly make his claim.
Roche Legal respects the decision of the court, but are of the opinion that the judgement was harsh on the motorbike rider in the circumstances.
In September of 2022, the motorbike rider lodged an appeal against the decision which is yet to be heard. This article will be updated with the outcome of the appeal in due course.
Second Court Decision – Appeal Outcome
[Update: 28 April 2023] The outcome of the plaintiff’s appeal of the original court decision that caused him to lose his claim was handed down by the court. (In the appeal, the plaintiff clarified that the at-fault vehicle was a ute and not a truck).
Citation: Ford v Nominal Defendant  QCA 83
Two essential factual issues were raised for reconsideration by the Court of Appeal:
- During the 20 seconds or so following the incident, and in circumstances in which the plaintiff did not believe that he was injured, should he have pursued the vehicle by crossing lanes on his motorcycle in the hope of observing and remembering the ute’s registration number?
- Should the plaintiff have returned to the scene of the incident on a subsequent evening at about the same time, in the hope of observing the same vehicle?
Framed in their legal context, the issue is whether the plaintiff, in the circumstances in which he was placed, should have done those two things in order to make “proper inquiry and search”.
The appeal decision said that whether proper inquiry and search has been satisfied or not depends on the circumstances of each claim, and that potentially no inquiry or search may be required at all for certain situations. An example was given as an incident where a potential claimant thinks their injury was only trivial – such was the thought of Mr Ford at the time who didn’t realise he was injured at all at the time. The court referred to previous case law, drawing a distinction between suffering pain versus knowing that a compensable injury has been sustained.
The relevant circumstances to consider were held to be only the circumstances at the time, with hindsight bias to be avoided.
In this regard, the opportunity available to a potential claimants was held to be a relevant circumstance. The appeal court offered an example: “an injured pedestrian with the time to record the details of a nearby stationary vehicle or an injured driver in a stationary vehicle near another stationary vehicle has a different opportunity to that of a driver who would have to pursue a vehicle in order to obtain its registration details”.
The appeal decision stated that there was no need for Mr Ford to return to the site of the incident because doing so was unlikely to have been productive in identifying the registration plate.
Overall, the court of appeal said that Mr Ford had established that “proper inquiry and search” did not require him to undertake the steps originally suggested by the Nominal Defendant that caused him to lose his claim in the first instance. Accordingly, the original court orders were set aside and the Nominal Defendant was ordered to pay damages to Mr Ford on account of his injuries that were agreed between the parties.
The amount of damages was not reported.
The trial court’s decision having been overturned by the Court of Appeal shows that common sense is able to prevail. The temporary elevated burden on injured road users by consequence of the prior decision has been restored to require only inquiries and searches that are reasonable in the circumstances of the accident.