Nominal Defendant v Ayache

Background 7On 25 April 2012 the respondent, Mr Ali Ayache, was injured when he fell from his motor bike while riding along Reservoir Road at Mt Pritchard. In 2013 he commenced proceedings in the District Court against the Nominal Defendant seeking damages in respect of the injuries he suffered. He alleges that his accident was caused by a "white Holden utility motor vehicle" failing to give way to his cycle which caused him to take evasive action and fall. 8Subsection 34(1) of the Motor Accidents Compensation Act 1999 (NSW) (the "Compensation Act") conferred on Mr Ayache an entitlement to bring an action against the Nominal Defendant for the recovery of damages in respect of his injuries if the identity of the other vehicle said to be at fault "could not be established". However s 34(1AA) provides that such a claim cannot be made against the Nominal Defendant "unless due inquiry and search has been made to establish the identity of the motor vehicle concerned". 9Further, s 34A(3) provides that if such proceedings are commenced under s 34, the Nominal Defendant may apply to have them dismissed "on the ground that due enquiry and search to establish the identity of the vehicle had not been made". Subsection 34A(5) obliged the Court to dismiss the proceedings unless it was "satisfied that due inquiry and search to establish the identity of the vehicle has been made". In this Court Senior Counsel for the Nominal Defendant, Mr Rewell SC, accepted that a finding on such an application determined the issue of "due inquiry and search" on a final basis 10On 1 May 2013, the Nominal Defendant made an application under s 34A(3) by notice of motion. On 16 August 2013 its notice of motion was dismissed. The Nominal Defendant applied to this Court for leave to appeal. On 20 December 2013, this Court granted leave.

The Accident 11The following is taken from the evidence that was led before his Honour. Except where indicated, the evidence was not the subject of any dispute before his Honour, although the Nominal Defendant reserved its position in respect of any final hearing. 12In his affidavit Mr Ayache stated that, due to the actions of the white utility, he lost control of his motorcycle and struck the gutter. He said this caused him to be thrown into the air. He landed on the roadway opposite a driveway. 13Mr Ayache said that he was in considerable pain and was shocked. He said that he realised he had suffered multiple injuries. Despite that, he was able to retrieve his iPhone and sit on an adjacent fence. He stated that he realised that he had fractured his left collar bone, suffered a "serious injury to [his] right wrist and hand" and injuries to both his knees and elbows which were bleeding, and that his right hand was also bleeding. This is consistent with the ambulance and hospital records which record him suffering a broken right clavicle, a broken right wrist, severe pain on palpation of his spine, abrasions to his left elbow and right flank. They also record that he was in "severe pain". His pain level was given a severity rating of eight out of ten by the ambulance staff who attended at the scene. 14Mr Ayache stated that he tried to telephone his brother, but he did not answer. He then telephoned a friend, Mr Shadi Rustom, who lived nearby. In his written submissions, Mr Rewell SC contended that the purpose of these phone calls by Mr Ayache was to retrieve his motorcycle. There is no evidence to support that contention. To the contrary, Mr Rustom's uncontradicted evidence was that Mr Ayache told him that he had had an accident, where he was, that he was hurt and asked him to come to the scene. 15Mr Ayache said that he then telephoned '000'. He was advised that an ambulance was being despatched. In his affidavit he said that he spoke to the '000' operator until the ambulance arrived. He said the conversation lasted about ten minutes, and that during this period he was sitting on the fence in extreme pain. In cross-examination Mr Ayache recalled that this conversation lasted "[m]aybe five minutes". 16Mr Ayache stated that the driver of the utility stopped his car at the scene. He said the driver approached him while he was on the telephone and attempted to speak to him. Mr Ayache said he had trouble understanding him. He recalled the driver wandered away and stood on the roadway. He also recalled that the driver and an occupant of one of the nearby houses picked up his motorcylce, which was lying on the road, and moved it to the side. 17Mr Ayache's brother stated that at some point he returned his brother's telephone call. He said Mr Ayache told him he had fallen off his motorcylce and was at Reservoir Road. 18Mr Ayache recalled that Mr Rustom arrived just prior to the ambulance attending. Mr Rustom stated that when he attended Mr Ayache was bleeding from his hands, seemed to be very injured and "seemed in shock". Mr Rustom then spoke briefly to the driver of the utility and then went back to assist Mr Ayache as the ambulance had arrived. Mr Rustom said that by this time Mr Ayache was experiencing greater pain and that he started "moaning, groaning and yelling". Mr Ayache's brother arrived and saw his brother in the ambulance. He said that Mr Ayache had a tube in his mouth but "was also screaming in pain about his shoulder". 19I have already described the ambulance officer's observation of Mr Ayache pain levels at the time they attended him. 20Mr Rustom stated that when he came out of the ambulance two police officers had arrived. After the ambulance left, he noticed that the utility driver had left the scene. He did not see him leave. Mr Ayache's brother recalled Mr Rustom advising him that the driver had left before the police arrived. It was not suggested that anything turned on any difference in their evidence on this point. 21Mr Ayache stated that once the ambulance had arrived he was given medication and was not capable of speaking. In his affidavit he stated: "20. ... Because the driver had stopped and approached me I believed that he would stay at the scene and that there would be no difficulty in obtaining his details. I was very surprised to hear that he had left without providing his details; 21. I was in shock and in a lot of pain and I was in no position to recall the details of the vehicle involved." 22As an indication of the level of pain relief that was applied, a statement from police records indicates that police attended the hospital and attempted to speak to Mr Ayache, but were told that it was not possible because he was "heavily medicated". 23Mr Ayache was discharged from hospital on 30 April 2012. He stated that by 7 May 2012 he felt "a bit better" and commenced making enquiries in an attempt to identify the driver of the vehicle. It is unnecessary to describe them in detail. It was not contended that there was anything deficient in the form of inquiry and search that was conducted by him and on his behalf after he left hospital. It involved canvassing neighbours and the police, and the publication of advertisements. Even though the ambulance and police attended, none of their records note either the existence of another vehicle involved in the accident, much less any details as to the identity of the vehicle or driver.

The respondent's cross-examination 24It is necessary to note certain answers given by Mr Ayache in cross-examination as Mr Rewell SC contended that they were of particular significance to the appeal. 25First, Mr Ayache accepted that, while he was sitting on the fence making phone calls, the utility vehicle was approximately six metres from him and readily visible. He was able to describe its make and model. He also said the number plate was visible "at times" 26Second, Mr Ayache conceded that when the driver of the utility attempted to speak to him he "wasn't really concerned about what he was saying" because he was making telephone calls. 27Third, he agreed that during the time when the driver of the utility was removing his motorcycle from the roadway he was standing within a few metres. 28Fourth, Mr Ayache said that he had had a car accident prior to this one, and that he knew that after an accident "you need to exchange details" to identify the other party, especially if they are at fault. 29Fifth, he agreed that while he was at the scene he "could have" used his iPhone to take notes to record the identification details of the other driver and the utility, or photograph the other vehicle. He also agreed that he "could have" asked the driver his details. 30The effect of Mr Ayache's evidence was that there was a period of approximately ten minutes between the time of the accident and the time he entered the ambulance in which he had the opportunity by various means to record the name of the other driver and the registration of the utility vehicle. The critical part of the cross-examination concerned why Mr Ayache did not do that. He was asked: "Q. So you could have asked this gentleman for his name. A. At the time, no. At the time I was in shock, had a lot of pain. The most important thing was to make the phone calls to get help. ... Q. And you were compos mentis, in other words, you knew what was going on around you. A. At the time when I got off the phone with the ambulance, I had the wife of [a nearby resident who attended] next to me tissuing all the blood, checking my broken bones, assisting me, helping me, and he wasn't going anywhere. The guy was standing there." 31To the extent in these answers that Mr Ayache referred to being in shock and in pain, I have already described the evidence concerning the injuries he suffered, and both the ambulance officers and Mr Rustom's observations as to his levels of pain. Otherwise, this part of his oral evidence was completely consistent with the extract from his affidavit set out above (at [21]).

The judgment appealed from 32Counsel for the Nominal Defendant submitted to the primary judge that there was no due inquiry and search because of the failure of Mr Ayache to take steps to obtain the identity of the other driver and vehicle in the period up to the time of his removal from the scene of the accident in an ambulance. In particular, counsel submitted that there was no relevant difference between the circumstances of this case and those the subject of the appeal in Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 ("Meakes"). 33At the conclusion of submissions, the primary judge gave ex tempore reasons. His Honour briefly recounted the events noted above. He also noted Mr Ayache's injuries, the various telephone calls he made, his concessions to the effect that he had the opportunity and means to record the driver's name, address and registration number as well as an appreciation of the necessity to do so. The primary judge also recorded the effect of the first of the answers that I have extracted in [30] above. His Honour then referred to Meakes and briefly summarised the nature of the enquiries undertaken after the discharge of Mr Ayache from hospital. 34The critical part of the primary judge's reasons was as follows: "In Meakes the plaintiff failed because the Court was not satisfied that he was disabled from making the obvious inquiries. In that case the plaintiff, while he said he was in shock, was able to proceed directly from the scene of the accident to a business appointment. The present plaintiff says that he was disabled by shock and pain from making the obvious connection between the circumstances of his accident and the need to identify the vehicle. In the present case I accept that proposition. Until he was attended to by the ambulance and administered morphine I accept that because of the severity of his injuries he was disabled from making the obvious inquiries and in his case those inquiries were not 'due'." (emphasis added)

Due inquiry and search 35I have referred to the relevant provisions of s 34 so far as they concern this appeal. As noted by Sackville AJA in Meakes at [30], a provision substantially in the form of s 34 of the of the Compensation Act was first legislated in this State in 1942 and similar legislation has existed in other States for a long period. 36The effect of the statutory provisions is to create a condition precedent to the existence of any cause of action that Mr Ayache has against the Nominal Defendant, namely that there has been due inquiry and search "for the purpose of identifying the motor vehicle, and that it must have been impossible thereby to establish the identity of the vehicle" (Meakes at [29]; Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301; 64 MVR 542 at [81] ("Workers Compensation Nominal Insurer")). To meet the statutory test the plaintiff must establish either that there has been "due inquiry and search" but that the identity of the vehicle cannot be established, or that any such inquiry would not have established the vehicle's identity (Meakes at [55]; Workers Compensation Nominal Insurer at [88]). 37The landscape of the decisions construing the phrase "due search and inquiry", as used in legislation in this and other States, was surveyed by Sackville AJA in Meakes at [30] to [44]. For the purposes of this appeal it is only necessary to note two relevant statements of principle that were adverted to in his Honour's judgment. 38The first concerns the difficult task faced by an appellant such as the Nominal Defendant in this case when it seeks to overturn a finding that "due" inquiry was made. In Harrison v Nominal Defendant (1975) 7 ALR 680 at 682 ("Harrison"), Barwick CJ found that an "affirmative finding that the identity of the vehicle cannot be established ... is ... a finding which a Court of Appeal must rarely be able to set aside as erroneous". In Workers Compensation Insurer at [88], McColl JA referred to this passage from Harrison and stated that it was equally applicable to a finding that due inquiry had not been established, and that "[b]oth are findings of fact about which reasonable minds may differ" (at [89]) and which cannot be interfered with by this Court on a rehearing unless error is demonstrated. 39This is reinforced by the presence of the word "satisfied" in s 34A(5). Where a statutory test turns on whether or not the Court is "satisfied" of a matter involving a broad evaluative judgment, the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word (see Vines v Australian Securities and Investments Commission [2007] NSWCA 126; 63 ACSR 505 at [8]-[9] per Spigelman CJ). 40The second is to identify the correct approach to be adopted, especially in cases such as this where the alleged failure in the search and inquiry concerns the actions of a driver injured at the scene to ascertain the identity of the other vehicle. In Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375 at 380-1 ("Cavanagh") Dixon CJ stated: "But the word 'due' brings with it the circumstances of the case as the test of what inquiry and search will suffice. And it is the circumstances of the case of the person suffering bodily injury or, where death has been caused, of the claimant that must be considered. It is the word "due" which connects the inquiry and search with the person injured where, as here, the claim is for bodily injury. You must look at the circumstances in which he or she was placed and, bearing in mind that the question is one affecting that person's rights, say whether in those circumstances enough was done by or on behalf of or in the interest of that person to warrant the description 'due' inquiry and search. A man picked up by the roadside with a fractured skull who remains unconscious for weeks cannot be denied the application of the provisions because no one has been active on his behalf in looking for the motor vehicle while he lay in that condition. But a very different view might be taken of the case of a man suffering a minor injury in comparatively full possession of his physical faculties. Perhaps the effect of the material part of the provision might be summed up by saying that the condition it imposes is that the claimant is not able to provide any adequate information as to the identity of the vehicle notwithstanding that the claimant and those acting for the claimant with his or her authority have taken such measures to ascertain it as were reasonable in the circumstances of the case having regard to the situation of the claimant. (emphasis added) 41It is clear that Dixon CJ regarded the two examples in this passage as being part of a spectrum of possible circumstances to which the test identified at the end of the passage must be applied. Thus the approach Dixon CJ might have taken to a person who suffered (say) a skull fracture but who was in possession of some of his faculties at the scene of an accident is not known. What matters at present is the approach this Court must take in relation to the assessment of such cases at first instance. It has already been outlined. 42Two recent examples of cases which scrutinised a failure to record the identity of a vehicle at the scene of an accident are Meakes and Nominal Defendant v Ross [2014] NSWCA 212 ("Ross"). 43In Meakes the injured claimant was a solicitor who was struck by a vehicle while crossing a city street. When he was close to the kerb he was lifted by the vehicle and thrown a distance of approximately two metres. He landed on his right side. He stated that he was "initially shocked" and believed he would die. However, according to Sackville AJA, he "gathered himself, and retrieved the bag and glasses from the roadway" (at [22]). He had a brief conversation with the driver. He stayed at the scene for "between a minute and a minute and a half" and then attended an appointment (at [23]). Later in the afternoon the claimant realised that he had suffered injuries beyond bruises and grazing and then conducted inquiries to find the driver, but they were unsuccessful (at [47]). 44The primary judge in Meakes found that the claimant had undertaken a due search and inquiry. The primary judge rejected a submission that the failure of the claimant to record the details of the driver and her vehicle at the scene meant that he failed to make due inquiry and search. The primary judge found, inter alia, that that it was not "unreasonable" for the claimant to have "got himself off the roadway and assessed himself as not having sustained serious injury, that he [waved] off the driver of the vehicle without taking her particulars" before attending the appointment (at [47]). 45The Court of Appeal overturned this finding. Sackville AJA (with whom McColl and Basten JJA agreed on this issue, at [1] and [4] respectively), held that the question for the primary judge was "not whether it was 'understandable and excusable' for the respondent not to have recorded vehicle identification details immediately after the accident", nor whether it was "unreasonable" for the respondent to have allowed the driver to leave the scene without taking his or her details, but rather "whether the respondent had shown that the identity of the vehicle would not be established after due inquiry and search" (at [56]). 46His Honour found (at [72]) that four circumstances warranted a reversal of the primary judge's finding, namely, the identity of the vehicle was readily ascertainable at the scene; the claimant was aware at the scene that he had suffered injuries after having been struck by a vehicle; "the [claimant] was not so injured as to be unable to perform the simple task of recording the registration details"; and an injured person in the claimant's situation could reasonably have been expected to obtain details at the scene. 47In relation to the third of these circumstances, Sackville AJA addressed evidence given by the claimant that he was "confused and suffering from shock" at the scene stating (at [69]): "The respondent's evidence perhaps suggests that the shock of being struck by a vehicle contributed to his determination to get to his appointment as soon as possible. And while obtaining the number may not have come to his mind at the time, he did not say that he was incapable of appreciating the significance of obtaining the registration number. No medical evidence was adduced on the respondent's behalf suggesting that the shock was such as to render him unable to direct his mind to the need to obtain the relevant details. Certainly any shock the respondent suffered was insufficient to prevent him from proceeding almost immediately to his meeting and completing the 'very difficult commercial transaction'." 48His Honour explained the outcome of Meakes as follows (at [74]): "... While there may be cases where a failure by an injured (but not incapacitated) person to record the relevant details prevents a finding that there has been 'due inquiry and search' for the purposes of s 34 of the MAC Act, I do not think that this is such a case. On the evidence, the respondent was not disabled from making the obvious inquiry and his main motivation appears to have been to get to his business appointment as quickly as possible." (emphasis added) 49As noted in this case, the primary judge referred to Meakes and found that the respondent to this appeal was "disabled" during the period that the driver of the vehicle was at the scene of the accident. I address this finding below (at [58]). 50In Ross the injured claimant was struck by a minibus as he left an airport terminal. The claimant described himself as "groggy", "confused", bleeding and bruised (at [50]). The driver of the vehicle stopped, alighted, inquired of the claimant and provided some tissues, before departing the scene without warning. Their interaction occupied approximately one and half minutes and the claimant was unable to observe the number plate of the minibus during that time (at [68]). 51In Ross Hoeben CJ at CL, with whom Beazley P agreed, held that given the claimant's "mental state of being groggy and in shock during the one and a half minutes available to him ... 'due inquiry or search' did not require him to record the registration number of the vehicle or the identity of the driver" (at [69]). Meagher JA's reasoning was to similar effect, with his Honour adding that the actions of the driver would have given the claimant "no reason ... to think that he should obtain immediately information as to the identity of the driver and the vehicle" (at [4]). 52Further, Hoeben CJ at CL distinguished the facts in Ross from Meakes (at [68]) stating: "This was not a situation such as occurred in Meakes where the injured party left the scene in order to attend an appointment, thereby allowing the opportunity to obtain the relevant details to be lost. Such a choice was taken away from the respondent by the actions of the driver." 53Ross is an example of the type of case referred to by Sackville JA in Meakes at [74], namely an injured (but not incapacitated) claimant who failed to record the relevant details of the at fault vehicle who was nevertheless found to have conducted due inquiry and search. The nature of the claimant's injuries and the brief time that the driver stayed at the scene before departing meant that overall the searches he undertook were "reasonable in the circumstances of the case having regard to the situation of the claimant ..." (Cavanagh id at 380-1). Unlike Meakes, there was no action or conduct of the claimant in Ross, such as attending a legal appointment, that suggested he had the capacity to record the vehicle's details but chose not to. In Meakes the claimant's action in waving off the driver before leaving to attend an appointment enabled her to leave (see [44] above) and the opportunity to obtain her details was lost. In Ross it was the driver's actions that removed that opportunity.

The Appeal 54The Nominal Defendant's notice of appeal identifies three grounds. The first was that the primary judge erred in finding that the requirement of due inquiry and search were satisfied by Mr Ayache. The second was that the primary judge erred in "misunderstanding and/or misapplying the requirements of s 34(1AA)" of the Compensation Act. The third was that the primary judge erred in finding that Mr Ayache "satisfied his obligation of due inquiry and search" notwithstanding that the relevant identification details were "readily available for a period of up to 10 minutes after the accident occurred". 55No part of the Nominal Defendant's submissions was directed to the second ground. Instead the written and oral submissions of Mr Rewell SC were directed to the first and third grounds. He contended that there was no "reasonable basis for distinguishing Meakes from the present case". He further submitted that every one of the circumstances that required the claimant in Meakes to record the details of the vehicle at fault were "present in, and are equally applicable to, the present case". Thus he emphasised the period of time that Mr Ayache had to observe the driver and his vehicle, his appreciation of the injuries he suffered and his actions in making three telephone calls and receiving another before the arrival of the ambulance. He submitted that Mr Ayache's conduct was analogous to that of the claimant in Meakes in leaving the scene to attend a legal appointment. 56It can be accepted that Mr Ayache had an opportunity to record the at fault vehicle's details in the sense that the driver stayed at the scene after the accident, Mr Ayache was conscious and he could have recorded the vehicle's details on his iPhone or speak to the driver. However the passage from Meakes (at [74] ) noted above confirms that the existence of an opportunity to record the details of the at fault vehicle is not determinative in the case of an injured but not incapacitated claimant. Otherwise the facts and outcome in Meakes do not of themselves establish a rule that in all similar cases a claimant must fail. 57In Meakes one of the principal bases for intervention by this Court was the absence of "medical evidence ... suggesting that the shock [said to have been suffered by the claimant] was such as to render him unable to direct his mind to the need to obtain the relevant details" (at [69]), bearing in mind that the claimant in Meakes decided to leave the scene of the accident and proceed immediately to attend a legal appointment. In an endeavour to maintain the analogy between this case and the facts in Meakes, Mr Rewell SC submitted that there was no medical evidence to support the primary judge's finding that Mr Ayache "was disabled from making the obvious inquiries because of the severity of his injuries". 58I have described Mr Ayache's injuries and the assessments of his pain level that was made at the scene. The primary judge's reference to Mr Ayache being "disabled" was made in the context of the use of that phrase in Meakes at [74] (noted above at [48]). It is to be understood as referring to Mr Ayache's shock and pain as being such as "to render him unable to direct his mind to the need to obtain sufficient details" (cf Meakes at [69]). Unlike Meakes, I consider that the medical evidence and Mr Ayache's evidence supported that finding. His injuries were significant and his level of pain was severe. 59Otherwise, as I have noted, Mr Rewell SC emphasised the actions of Mr Ayache in making three telephone calls and receiving one from his brother. However all of those calls were directed to obtaining assistance because he was hurt. They are qualitatively different to the actions of the claimant in Meakes in attending a legal appointment. They are not inconsistent with Mr Ayache being unable to direct his mind to obtaining the details of the at fault vehicle. 60In this case the driver remained at the scene for a much longer period than either of the drivers in Ross or Meakes. Unlike Meakes but as in Ross, the driver did not leave the scene as a result of any conduct of the claimant, and his actions up until that time suggested he would remain and provide his details. However the most significant feature of this case was the level of injuries Mr Ayache suffered, along with accompanying shock and severe pain. In a sense it is true, as contended for by Mr Rewell SC, that the extent of Mr Ayache's injuries was such as to give him greater reason to obtain the driver's registration details. However, in my view, their real significance was that they justified the primary judge's finding that the "respondent was disabled from making the obvious inquiries because of the severity of his injuries". When that finding is understood in the way I have explained it, it is not erroneous. 61Further, although it was not referred to in the primary judge's judgment, some further support for his Honour's conclusion can be drawn from the actions of the driver until the time he left. As I have stated they suggested he would remain and provide his details. As noted, no issue was taken with the searches and inquiries that took place after Mr Ayache was taken from the scene. In my view, no basis for interfering with the primary judge's decision has been made out. The present is not one of those "relatively rare cases" (Meakes at [72]) in which the trial judge's finding as to due inquiry and search should be set aside. 62I would dismiss the appeal. 63The orders I propose are: (1)the appeal be dismissed; and (2)the Appellant pay the Respondent's costs.

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