The Nominal Defendant v Ross

HEADNOTE [This Headnote is not to be read as part of the judgment] The respondent was injured when an unidentified minibus collided with him outside Terminal 2 at Sydney Airport. The respondent was exiting the terminal when he stepped off the footpath and a minibus collided with him. He suffered some cuts and was bleeding. The minibus stopped and the driver asked if the respondent was okay, to which he replied that he was. The driver then drove off without the respondent noting details of his name or the registration number of the minibus. The respondent did not think that he had been seriously injured and subsequently collected his visitor and drove from the airport. Sometime later the respondent discovered that he had suffered serious injuries to his right leg, including a fracture of the right foot. He continued to experience significant problems after the accident. In the District Court, the appellant did not dispute that the collision occurred at the time and place alleged by the respondent, but denied that the driver of the minibus was negligent. The appellant alleged a high degree of contributory negligence on the respondent's part. The appellant also asserted that the respondent failed to comply with his duty of due search and enquiry. The primary judge found that the driver of the minibus was negligent and that the respondent was contributorily negligent to the extent of 20 percent. The primary judge found that the respondent had satisfied his duty of due search and enquiry. On appeal to this Court the appellant challenged the finding that the driver of the minibus was negligent, and that if he were negligent he challenged the assessment of contributory negligence. Also challenged was the finding that the respondent had satisfied his duty of due inquiry and search pursuant s34(1) of the Motor Accidents Compensation Act 1999. Held by the Court, the appeal was allowed in part