Workers Compensation Nominal Insurer v Nominal Defendant

Judgment 1McCOLL JA: Mr Iyad Tallouzih, who was employed by Oxford Shop Menswear Pty Ltd ("Oxford Shop"), was injured on 13 March 2000 when the car he was driving was struck by another vehicle while he was driving to a bank with the store's takings. He ceased work, sought medical treatment and submitted a workers compensation claim under the Workers Compensation Act 1987 (the "WC Act"). 2Allianz Australia Workers Compensation (NSW) Ltd ("Allianz") and Gallagher Bassett Services Pty Ltd ("GBS") acting successively as scheme agents of the appellant, the Workers Compensation Nominal Insurer, paid workers compensation to Mr Tallouzih. References to acts of the appellant in this judgment include activities undertaken (or not undertaken) by the scheme insurer acting in the matter at the relevant time. 3The present proceedings were first commenced in Oxford Shop's name as employer of Mr Tallouzih claiming, relevantly, that the plaintiff was unable after due inquiry and search to identify the vehicle which had collided with Mr Tallouzih's vehicle so that his injuries were caused in circumstances creating a liability in the Nominal Defendant, the respondent, to pay damages in respect of the accident, pleading that the employer had paid, and was under a continuing obligation to pay, compensation to Mr Tallouzih in respect of his injuries and seeking indemnity from the Nominal Defendant in respect of the compensation payments pursuant to s 151Z(1)(d) of the WC Act. Oxford Shop went into liquidation and leave was granted at trial to amend the Statement of Claim to substitute the appellant as plaintiff. 4Olsson DCJ found that the appellant was not entitled to a s 151Z(1)(d) indemnity and ordered it to pay the respondent's costs: Workers Compensation Nominal Insurer v Nominal Defendant (District Court of NSW, Olsson DCJ, 5 April 2012, unreported). The appellant appeals against this decision. In the event it succeeds on liability it contends that her Honour erred in assessing the notional damages payable to Mr Tallouzih under the Motor Accidents Compensation Act 1999 ("MAC Act"). 5The liability appeal turns on whether the appellant established that the identity of the vehicle which collided with Mr Tallouzih's vehicle could not be established after due inquiry and search, such as to satisfy s 34 of the MAC Act and, in turn, enliven the respondent's liability under s 151Z(1)(d) of the WC Act. 6For the reasons which follow, I have concluded that the appellant has not demonstrated that the primary judge erred in concluding that the appellant had not satisfied its s 34 obligation. I would dismiss the appeal with costs.

Legislative framework 7Section 151Z of the WC Act relevantly provides: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: ... (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)," 8At the time of the accident s 34, which appears in Part 2.4 of the MAC Act, provided: "34 Claim against Nominal Defendant where vehicle not identified (1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault 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. (2) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search. (3) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle." 9Section 34 was amended by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (the "2007 Amending Act") to omit "after due inquiry and search" from s 34(1) and insert s 34(1AA) which provides: "(1AA) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned." 10The 2007 Amending Act also inserted s 34A into the MAC Act which provides: "34A Rejection of claim for failure to make due inquiry and search to establish identity of vehicle (1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 34 cannot be referred for assessment under Part 4.4 unless: (a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or (b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for failure to make that due inquiry and search, assessed that due inquiry and search has been made, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (2) The Nominal Defendant loses the right to reject a claim for failure to make due inquiry and search to establish the identity of a vehicle if the Nominal Defendant: (a) does not, within 2 months after the claim is made, reject the claim for failure to make that due inquiry and search or ask the claimant to make that due inquiry and search, or (b) does not, within 2 months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due inquiry and search to establish the identity of the vehicle. (3) If court proceedings are commenced on a claim against the Nominal Defendant under section 34, the Nominal Defendant may apply to the court to have the proceedings dismissed on the ground that due inquiry and search to establish the identity of the vehicle has not been made. (4) An application to have proceedings dismissed on that ground cannot be made more than 2 months after the statement of claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground. (5) On an application to have proceedings dismissed on that ground, the court must dismiss the proceedings unless satisfied that due inquiry and search to establish the identity of the vehicle has been made. " 11The amendments effected by the 2007 Amending Act commenced on 1 October 2008: New South Wales Government Gazette, No 92, 25 July 2008, at 7281. They did not apply in respect of a motor accident that occurred before the commencement of the amendment except as otherwise provided by Schedule 5, Part 6 or by regulations under that Schedule: MAC Act, Schedule 5, Part 6, cl 25. However the amendments effected to Part 2.4, in which, as I have said, s 34 appears, did extend to a "claim" made after the commencement of the amendment even if the motor accident concerned occurred before that commencement: MAC Act, Schedule 5, Part 6, cl 31. 12Claim is defined in s 3 to mean "a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." 13The primary judge ruled (at [48]) that because a s 151Z(1)(d) claim was not a claim for damages (as to which see [64] - [65]) below) the provisions of the 2007 Amending Act did not apply and, accordingly, the due search issue was to be determined in accordance with s 34 as in force at the time of the accident. There is no challenge to that ruling. 14The expression "due inquiry and search" has been described as expressing "a compound idea", such that "it ought not to have each of the integers segregated so as to require them each to be satisfied in every case [rather] that there should be inquiry and that inquiries when they yield leads should be followed up": Slinn v Nominal Defendant [1964] HCA 72; (1964) 112 CLR 334 (at 339) ("Slinn") per Barwick CJ. References in this judgment to "due inquiry" should be taken as referring to that compound idea.

Factual Background 15The following facts are uncontroversial and are taken from the primary judgment or the appeal books. 16Mr Tallouzih worked for Oxford Shop at Birkenhead Point between 1994 and 2000. He was the store manager at the time of the accident. 17Mr Tallouzih gave evidence at trial that on 13 March 2000 at about 10 am he was driving his car out of a car park in Birkenhead Point Shopping Centre taking the store's takings to the bank when his motor vehicle was struck by another vehicle which was reversing out of a car parking space: primary judgment at [11]. He said the point of impact was at the offside door and panel of the car, and shattered the driver's window: primary judgment at [12]. 18Mr Tallouzih said that the driver of the other car, who he described as a young man dressed in a suit with a white shirt and tie, approached him and apologised. He also said (primary judgment at [13]): "[W]e exchanged details and I wrote his details on a piece of paper and he jumped into his car and just left. There was no need to call the police, there was nobody injured ... he didn't hit and run. He did it, just hit. That's it." 19In cross-examination, when asked what he wrote down, Mr Tallouzih said: "I don't know what I wrote down. Obviously licence details - his name, address, car registration number and there you go." 20After the accident, Mr Tallouzih said that he returned to the shop, rang Mr George Akkawi, the general manager of Oxford Shop and told him what happened. He said that he met Mr Akkawi shortly after and showed him the scene of the accident. Mr Tallouzih said that he also gave Mr Akkawi the piece of paper which contained the other driver's details and was told that Oxford Shop would "fix it": primary judgment at [14]. 21A statement from Mr Akkawi dated 24 October 2010 was admitted at trial without objection. Mr Akkawi was not required for cross-examination. In his statement Mr Akkawi confirmed that Mr Tallouzih had called him on 13 March 2000 to advise that he had been in a motor vehicle accident. He was unable to recall whether Mr Tallouzih had given him a piece of paper which contained the name of the other driver and the car's registration details. He said that had that occurred, he "would have either handed that piece of paper to the secretary of Oxford Shop Pty Ltd, Mr Ray Bryant, or put that piece of paper in [his] diary". He said that he discarded the relevant diaries in or around 2006: primary judgment at [15]. He did not recall Mr Tallouzih calling him after the date of the incident in order to ascertain the identity of the driver of the other vehicle. 22Mr Tallouzih did not think he had been seriously injured and returned to work that day: primary judgment at [16]. However the morning after the accident he woke up "with a massive pain in [his] left arm [and] hardly had any power in it." By the third day his arm was "useless" and his neck was "hurting a lot". He took sick leave and consulted a Dr Munro on 21 March 2000, who completed a WorkCover medical certificate stating that Mr Tallouzih was unfit for work because of a whiplash injury and soft tissue injury to his left wrist: primary judgment at [18]. Dr Munro also referred him to a nerve specialist. 23On 22 March 2000, Mr Tallouzih submitted a claim for workers compensation. Liability was accepted and payments in the amount of $324,414.57 as at the date of the amended statement of claim were made to Mr Tallouzih by the appellant. 24Mr Tallouzih was unable to return to work. After about two weeks off work, he was summoned to Oxford Shop's head office and told that his employment was terminated because of a complaint that had been made about him by a customer to the shop. Mr Tallouzih denied that any misconduct had occurred. He alleged Mr Akkawi had told him that Oxford Shop could not afford his workers compensation claim. After his dismissal he made an unsuccessful attempt to run his own café. He also had some short-term employment. Otherwise he was unemployed from the date of his dismissal until the trial and subsisted on his workers compensation payments: primary judgment at [20]. 25Mr Tallouzih retained P.K. Simpson & Co, solicitors, from at least May 2002 in respect of his accident. The firm commenced proceedings against the respondent on his behalf but they were discontinued. There was no evidence of the date of discontinuance. 26The appellant retained Goldbergs Lawyers from at least 2002 until 2004 apparently in relation to workers compensation proceedings brought by Mr Tallouzih. It also instructed Sparke Helmore Lawyers from on or about 20 May 2008 to act on its behalf in respect of the indemnity claim. 27The evidence relevant to the due inquiry issue, other than that to which I have referred, was: (1)Mr Tallouzih said that there were no witnesses to the accident; (2)The employer's report of injury form completed on 22 March 2000 identified "Birkenhead Point Maintenance" and "Birkenhead Point Security" as witnesses; (3)Mr Tallouzih said that he informed the Birkenhead Point Shopping Centre car park security about the accident shortly after it occurred ("because they have to know") and went back to the car park with the security guards; (4)Mr Tallouzih said that he learnt three or four days after the accident that Mr Akkawi no longer had the piece of paper recording the other driver's details that he had given to him; (5)Mr Tallouzih did not do anything to try and identify the other vehicle after learning Mr Akkawi no longer had the piece of paper; (6)On 31 March 2000, Mr Tallouzih attended Balmain Police Station and reported the accident; he did so in case the other driver informed the police the accident was Mr Tallouzih's fault; he wanted to be "in the clear" (7)On 31 March 2000, the appellant started paying workers compensation to Mr Tallouzih; (8)On 15 May 2002, P.K. Simpson & Co responded to a request for particulars from Goldbergs Lawyers in relation to the workers compensation proceedings and said that the "[o]ther vehicle left the scene of the accident and the Applicant was unable to take details"; (9)On 1 July 2002, P.K. Simpson & Co wrote to Mr Tallouzih relevantly seeking full details of the other driver involved in the accident and notification of whether third party proceedings had been commenced against the driver; (10)On 11 May 2003, Goldbergs Lawyers applied to the NSW Police Insurance Services Unit for an Incident Report regarding the accident. On 24 March 2003, the Insurance Services Unit responded stating that a thorough search of existing Police Reports had failed to uncover any record of it; (11)Goldbergs Lawyers retained a firm of private investigators, Milne & Associates Pty Ltd, who investigated the circumstances of the accident in a report dated 12 July 2004; the employer told the investigator that Mr Tallouzih reported the incident occurred but, other than what was in the workers compensation claim form, they had no other relevant information; the investigators' inquiries appear to have been directed to where the accident occurred; it does not appear they took any steps to seek to identify the other driver or, presumably, the other vehicle; and (12)Ms Therese Hanna, a solicitor employed by Sparke Helmore Lawyers with day to day carriage of the matter on behalf of the appellant, took a series of steps in 2008 to seek to identify the other vehicle, including making inquiries of Mr Tallouzih, Mr Akkawi and the Birkenhead Point Shopping Centre and requesting the registration number of the vehicle from P.K. Simpson & Co. P. K. Simpson & Co advised on 11 June 2008 that Mr Tallouzih was not aware of the driver at fault as well as of the fact that a claim had been commenced against the Nominal Defendant, but discontinued. 28Both parties tendered medical reports. None of the medical practitioners was cross-examined.

Primary Judgment 29The primary judge identified four questions for determination: (1)whether there had been an injury to a worker for which compensation was payable under the WC Act; (2)whether the injury was caused in circumstances that created a liability in the Nominal Defendant to pay damages in respect of the injury; (3)whether it was necessary for the plaintiff to prove that due inquiry and search had been made out, and if so, whether it was the search and inquiry of the plaintiff or the worker that is relevant; and (4)if the Nominal Defendant was liable, how should the notional assessment of the worker's damages under the MAC Act be calculated?

Whether workers compensation was payable 30Although her Honour observed (at [27]) that Mr Tallouzih "was not an impressive witness", describing him as "openly hostile, argumentative and histrionic during most of his evidence", she accepted his evidence on the basis (at [28] - [29]) that it was more or less consistent with the version of events he gave in consultations with medical practitioners and with his immediate complaint about the incident to Mr Akkawi, and that she did not think he was untruthful. Accordingly, her Honour concluded (at [30]) that: "Mr Tallouzih sustained an injury to his left ulnar nerve and a soft tissue injury ... more probably than not, he sustained those injuries in the car accident described by him. I also find that the accident occurred whilst he was carrying out the activities of his employment and accordingly, I find that he suffered an injury for which workers compensation was payable." 31The primary judge found (at [29]) that the accident happened as Mr Tallouzih said, that it was caused by the negligence of an unidentified driver in an unidentified vehicle (at [31] - [33]) and that there was no contributory negligence.

Liability of the Nominal Defendant 32The primary judge then turned to the question whether Mr Tallouzih's injury was caused in circumstances that created a liability in the Nominal Defendant to pay damages. 33The primary judge found (at [38]) that the first three requirements in s 34(1) were satisfied as the accident resulted in injury to a person, occurred by the fault of the driver of another vehicle and on a road in NSW. The critical issue was whether there had been due inquiry to establish the identity of the vehicle. 34The appellant sought to argue that the s 34 obligation of due inquiry did not apply to an employer (in whose shoes it was effectively standing) in circumstances where it sought indemnity pursuant to s 151Z(1)(d). The primary judge rejected this submission (at [55]), applying Sidis DCJ's observation in Hunter New England Area Health Service v Nominal Defendant [2008] NSWDC 13; (2008) 6 DCLR (NSW) 348 (at [8]), that because s 151Z(1)(d) liability depended upon "the injury for which compensation is payable [having been] caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury", the "Nominal Defendant's liability, if any, to pay damages in respect of the injury to the worker [arose] only under s 34(1) of the Motor Accidents Compensation Act." 35Accordingly the primary judge concluded (at [57]) that the elements required to be proved by a plaintiff claiming against the Nominal Defendant under s 34(1) of the MAC Act must also be proved by a plaintiff claiming a s 151Z(1)(d) indemnity. There is no challenge to that ruling. 36The primary judge also found (at [59] - [60]) that s 34 did not limit the identity of the person who carried out the inquiry and search and that there was no impediment to the insurer carrying it out. Her Honour observed (at [59]) that the insurer would generally be on notice of the potential for an action for indemnity from the outset of the claim and had the opportunity to conduct its own inquiry and search. 37The primary judge reviewed the evidence of the steps taken by Mr Tallouzih (see [18] - [21], [27] above) and concluded that due inquiry on his part had not been established. Her Honour observed (at [68] - [69]), that Mr Tallouzih knew within three to four days of the accident that the piece of paper with the other driver's details had been lost but had made no further inquiries such as reviewing closed circuit television of the car park, asking staff at the car park exit booths whether they had seen the other vehicle or putting up a notice seeking witnesses. 38The primary judge noted (at [71]) the response to the request for particulars in which Mr Tallouzih's solicitors advised Goldbergs Lawyers that the "[o]ther vehicle [had] left the scene of the accident and the Applicant [had been] unable to take details" and inferred those particulars were answered on instructions. 39Insofar as Mr Tallouzih was concerned, her Honour concluded: "73 On any view of the evidence, Mr Tallouzih made little or no inquiry and made no search to identify either the other driver or other car, notwithstanding that he knew, within three to four days of the accident occurring, that the piece of paper with the other driver's name on it (assuming for the moment that it in fact existed) had been lost. He could not satisfy the requirement that due search and inquiry had been made. ... 78 ... I find that Mr Tallouzih did not carry out due inquiry and search ... In fact he did nothing at all. This is not a case where it would have been futile to make inquiries: reasonable steps were open to him and he failed to avail himself of them." 40The primary judge then considered whether the appellant had caused due inquiry to be made. Her Honour found (at [79] - [83]) that the appellant did not do so. The appellant had made workers compensation payments since 2000 and was informed that the injury occurred in a car accident on the workers compensation claim form dated 22 March 2000. Given that the appellant had been paying Mr Tallouzih compensation since 2000 arising from the worker being injured by a vehicle, her Honour concluded (at [83]) that the appellant "could and should have appreciated that a cause of action against the Nominal Defendant might arise" and could have made its own inquiries and searches, but did nothing, or nothing of any substance, for a number of years after the event. 41Her Honour concluded (at [84]) that neither Mr Tallouzih nor the appellant was able to establish that due inquiry had been undertaken and, accordingly, the appellant could not establish the respondent was liable to Mr Tallouzih in respect of the accident. Hence the appellant could not establish the precondition to any s 151(1)(d) indemnity.

Notional assessment of damages 42The primary judge assessed the damages that would have been awarded to Mr Tallouzih had he successfully sued the Nominal Defendant. I will refer to her Honour's findings only insofar as they are relevant to economic loss which is the only issue on damages in the appeal. 43The primary judge reviewed the voluminous medical reports which differed, in particular, on the question whether Mr Tallouzih had developed a psychological condition and pain disorder as a result of the accident or whether it was caused by subsequent events. Her Honour concluded (at [93]) that Mr Tallouzih's psychological symptoms were not caused by the accident, but by the loss of the café business into which he had invested his life savings after his employment with Oxford Shop ended. Her Honour also found (at [95], [98]) that Mr Tallouzih's back pain was not caused by the accident, but developed after it. 44The primary judge concluded (at [106]) that Mr Tallouzih was not entitled to damages for non-economic loss under s 131 of the MAC Act as she was not persuaded that his degree of permanent impairment was greater than 10%. Her Honour found (at [119]) that he was capable of returning to work by September 2001, but on restricted hours and restricted duties. She allowed (at [120]) past economic loss from 13 March 2000 to 30 September 2001 at the sum of $750 per week, which amounted to $61,647.12, in addition to loss of superannuation calculated at 11% on his net loss. Her Honour also found (at [121]) that Mr Tallouzih was capable of returning to work from October 2001, but was not capable of returning to his pre-injury duties. However, her Honour did not include a notional award of damages for past economic loss for the period from October 2001 to the date of judgment, a matter that is the subject of appeal. 45As to Mr Tallouzih's future lost earning capacity, the primary judge found (at [123], [131]), pursuant to s 126(1) of the MAC Act, that his most likely future circumstances, but for the injury, were that he would have been able to resume work, but would have been restricted to work that did not require heavy lifting or carrying, such as in the retail clothing industry in a managerial role. Her Honour took into account the fact that Mr Tallouzih had been dismissed by Oxford Shop but said that whether or not that dismissal was for misconduct or rather, as he contended, because Oxford Shop did not want to deal with another workers compensation claim, Mr Tallouzih was highly motivated to work and succeed and would have continued working until aged 67. 46Her Honour calculated (at [131] - [132]) Mr Tallouzih's likely earnings in 2011, based on CPI figures, as $1,060.76 per week and discounted his wages by a factor of 25% to allow for the diminution of his earning capacity caused by his restricted capacity to perform work involving heavy lifting and carrying. Accordingly, her Honour allowed future economic loss of $187,019.55, calculated as $281 per week for 27 years ($220,023) less 15% for contingencies ($33,003.45). However her Honour did not allow for lost superannuation on the future economic loss. The parties agree an amount of $20,572.15 should be notionally allowed in this respect. 47The primary judge assessed (at [145]) future out of pocket expenses at $5,920.90. It is common ground that in so doing, her Honour miscalculated the sum notionally allowable and that it ought to have been $9,722.59. 48Having regard to the passage of time it was common ground that the appellant could not recover $148,085.87 of the compensation it had paid. Its recovery, if otherwise available, was limited to compensation payments of $204,978.60. Having regard to the hypothetical nature of the exercise in which she was engaged, her Honour did not calculate interest allowable on that sum. It is common ground that $24,626 represents the notionally allowable interest.

Issues on Appeal 49The appellant pressed the following grounds from its Further Amended Notice of Appeal. First, as to liability, that the primary judge erred in concluding it had failed to establish that it had undertaken due inquiry in accordance with s 34 of the MAC Act. Secondly, that, in assessing the notional damages payable to the worker, the primary judge erred in failing to assess damages for past economic loss for the period from October 2001 to 2011, in failing to assess superannuation on future economic loss and in calculating future out-of-pocket expenses.

Liability: appellant's submissions 50Mr D Kelly, who appeared for the appellant on appeal and at trial, first submitted that the primary judge erred in finding that the appellant had failed to establish due inquiry for the purposes of s 34 of the MAC Act. He argued that the question whether due inquiry had been established had to be determined by considering all steps which had been taken to that end up to the time the action was brought against the Nominal Defendant. He accepted that the primary judge was correct in concluding that due inquiry could be conducted by whomever or by whatever means. He argued, however, that even if her Honour was correct in concluding that Mr Tallouzih had failed to undertake proper inquiries, the appellant's claim under s 151(1)(d) of the WC Act was independent of Mr Tallouzih's claim, and the due inquiry issue had to be assessed in relation to what inquiries it could and should reasonably have undertaken. 51Mr Kelly submitted that the "other vehicle" was not identified for the purposes of s 34 even though Mr Tallouzih recorded the details at the scene of the accident, as it was not identified at the time the claim was made against the respondent. He argued that once the piece of paper with the other driver's details could no longer be located, any further inquiry, whether by Mr Tallouzih (or someone on his behalf) or the appellant was futile. He contended that her Honour erred in determining as a matter of fact that there were other steps which could have been taken to seek to identify the other vehicle. 52In particular, Mr Kelly submitted that there was no evidence to support her Honour's conclusion (see [37] above) that there were closed circuit televisions, exit booths or notice boards at Birkenhead Point Shopping Centre which would have enabled Mr Tallouzih to make additional inquiries. Accordingly, he submitted that Mr Tallouzih had acted logically and reasonably in recording the relevant information and giving it to his employer and, effectively, that once the details were lost there was no realistic further inquiry which could, or should, have been taken. This was particularly the case, he argued insofar as Mr Tallouzih was concerned, because initially he did not think he was particularly badly injured, was being paid compensation and was also undergoing treatment and was referred for rehabilitation. 53Furthermore, Mr Kelly contended that with regard to the appellant, the only step that could have been taken that would not have been purely ritualistic would have been to send a letter to the employer soon after the worker's compensation claim was submitted seeking details of the other driver and vehicle. However he argued that to suggest that the appellant should have made inquiries as to the other vehicle's identity early in the piece (when either the piece of paper could have been provided or a realistic search for the other vehicle undertaken) would impose an unreasonable burden as it often only became clear long after a claim had been made that further legal proceedings might be necessary. Even if early inquiry by the insurer was a reasonable proposition, Mr Kelly contended the Court could not infer such inquiry could have identified the other vehicle. He also argued that the primary judge failed to identify the specific steps that could have been taken by the appellant to discharge its due inquiry obligation.

Liability: respondent's submissions 54Mr J Guihot, who appeared for the respondent at trial and at appeal, submitted that in order for the appellant to succeed on liability, it had to demonstrate error in the primary judge's factual findings, not merely that another conclusion could have been reached. He contended that due inquiry could not be proved where there was a possibility that the identity of the other vehicle could be obtained. He argued that it was open to the primary judge to conclude that that possibility existed. 55Mr Guihot agreed with Mr Kelly's submission that the question whether due inquiry had been made had to be determined as at the time proceedings were commenced against the respondent. In the course of argument Mr Guihot also conceded in response to a question from the Bench that the respondent could not defend the claim on the basis that if the other vehicle's identity was known at some stage, it could not be considered an unidentified vehicle. He withdrew that concession after the hearing, however he did not advance any argument that the Court should consider the appeal on the basis that because the other vehicle was identified in the piece of paper, the precondition to the respondent's s 34 liability could not be established. 56Mr Guihot argued that the appellant or Mr Tallouzih could have made inquiries regarding the identity of the other vehicle that would not have been futile. He pointed out that Mr Tallouzih had been driving a very distinctive car (a 1985 model burgundy coloured Cadillac) and had been able to give a detailed description of the other vehicle (a yellow Corolla with red P plates) and other driver, a young man wearing a black suit, white shirt and tie. Armed with those details, he contended, Mr Tallouzih was well placed to make inquiries in the relatively closed environment at Birkenhead Point to see if the other driver was employed, or otherwise known to any one, in the shopping centre. Instead he had made no inquiries at all even though he knew the critical piece of paper with the other vehicle and driver's details had been lost. 57Finally, Mr Guihot submitted that the appellant had also failed to undertake due inquiry. It had done nothing after the compensation claim had been lodged by way of inquiry of Oxford Shop, nor had the solicitors or investigators it engaged in 2004 done any more than seek to determine whether the accident had happened, rather than seek to identify the other vehicle involved. He argued that the claims assessor who reviewed Mr Tallouzih's claim in 2000 or Goldbergs Lawyers, which was retained by the appellant from at least May 2002, could have undertaken the inquiries Ms Hanna made in 2008 when she wrote to Oxford Shop, telephoned Mr Tallouzih and recorded a file note. He argued that the appellant, Goldbergs Lawyers and/or the investigators could have made inquiries of Mr Akkawi and/or Mr Bryant early in the piece and at a time when it was reasonable to infer Mr Tallouzih's piece of paper may still have existed in Oxford Shop's records.

Liability: consideration 58In order to determine the appeal it is necessary first to bear in mind that the appellant is standing in the shoes of Oxford Shop, Mr Tallouzih's employer, which paid compensation to Mr Tallouzih. 59Secondly it is necessary to understand the nature of a s 151Z claim. 60Section 151Z(1) addresses the situation of an injured worker entitled both to compensation under the WC Act from an employer and to damages at common law from a tortfeasor. It regulates, first, the worker's rights against the employer and the tortfeasor and, secondly, the ultimate burden for the worker's compensation as between the employer and the tortfeasor: Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336 (at [28]) ("Kurnell") per McColl JA. 61In its first sphere of operation, s 151Z(1)(a) - (c) reflects the intention of Parliament that a worker should not receive double compensation: Kurnell (at [29]). In its second sphere of operation, the policy of s 151Z is to ensure that "an employer who paid the statutory compensation to an injured employee or, in the case of his death, to his dependants, where the injury or death, though occurring in the course of employment, was caused by the wrongful act or omission of another person was to be entitled to be indemnified against the payment of that compensation by that other person": Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321 (at 326) per Barwick CJ (McTiernan J agreeing); referred to with approval in Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520 (at [13]) per Gleeson CJ, Gummow, Hayne and Callinan JJ. 62Thus s 151Z creates a legislative scheme designed to reimburse the party liable to pay compensation out of the fund provided by the party liable to pay damages (the "wrongdoer") but it applies only where the "'circumstances creating' liability for the compensable injury also create a liability in the tortfeasor to pay damages": Kurnell (at [31]); Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249 (at [52], [53], [99]) per Mason P (Sheller JA and Cole AJA agreeing). 63The right which is given to the employer who has paid compensation rests on the existence for however brief a time of a true liability to pay damages in some wrongdoer or wrongdoers in respect of the injury for which compensation was payable and has been paid and, in that sense, has been described as "derivative": Tooth & Co Ltd v Tillyer [1956] HCA 49; (1956) 95 CLR 605 (at 612) per Dixon CJ, Williams, Webb and Fullagar JJ; QBE Workers Compensation (NSW) Ltd v Dolan [2004] NSWCA 458; (2004) 62 NSWLR 42 (at [42] - [43]) per Beazley JA (Mason P and Tobias JA agreeing). 64The statutory right of indemnity conferred by s 151Z(1)(d) upon the person who has paid the compensation is not to be equated to the cause of action which the worker would have had against the wrongdoer. Section 151Z(1)(d) creates a cause of action separate to that vested in the worker: WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420 (at [14], [19]) per French CJ, Gummow, Crennan, Kiefel and Bell JJ. The claim to enforce the entitlement to indemnity is not a claim in tort, rather it is a cause of action created by statute for an indemnity against a person liable to pay damages to another: Esso Australia Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246 (at [28]) per Winneke P (Tadgell and Chernov JJA agreeing); approved Victorian WorkCover Authority v Esso Australia Ltd (at [14]) per Gleeson CJ, Gummow, Hayne and Callinan JJ. The liability of the wrongdoer is a "'notional liability at common law [or under a statute other than the Compensation Act] for pecuniary and non-pecuniary loss' ... having regard to limitations on the liability of the wrongdoer to the person who has received compensation": WorkCover Queensland v Amaca Pty Ltd (at [26]). 65Accordingly, the appellant's s 151Z(1)(d) entitlement is not, in form or substance, a claim for damages, but a cause of action created by statute for indemnity against a person liable to pay damages to another; the wrongdoer's liability is an ingredient of the statutory right: WorkCover Queensland v Amaca Pty Ltd (at [53]). 66The wrongdoer's liability to pay damages is to be assessed at the time of the act or omission causing the compensable injury and not at some later time such as when proceedings for indemnity are brought: Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; (2006) 67 NSWLR 516 (at [42]) per Bryson JA (Handley and Ipp JJA agreeing); United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24; (2012) 260 FLR 37 (at [22]) per Allsop P (Macfarlan JA and Handley AJA agreeing). 67In Kurnell (at [39]), I explained: "39 Determining the compensation the employer can recover from the tortfeasor pursuant to s 151Z(1)(d) involves a 'trial within a trial': Hickson (at [44]). The employer must establish five separate constituent elements: (a) that a worker was injured; (b) that the injury was one for which compensation is payable under the 1987 Act; (c) that it was caused under circumstances creating legal liability in the tortfeasor; (d) that the worker has recovered compensation under the 1987 Act for that injury from the employer; (e) that the employer has paid the compensation so recovered: Frank G O'Brien Ltd v Bain [1975] 1 NSWLR 373 (at 381) per Glass JA (with whom Reynolds and Hutley JJA agreed); see also Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343 (at 347) per Glass JA; Kempsey District Hospital v Thackham (at 507) per Handley JA; Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; (2006) 67 NSWLR 516 (at [10]) per Bryson JA (Handley JA agreeing)." 68As the High Court explained in WorkCover Queensland v Amaca Pty Ltd (at [21]) when considering s 207B(7) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the "Qld Act"), which for relevant purposes is in substantially the same terms as s 151Z(1)(d), "[w]hereas the right of indemnity is distinct from the cause of action of the person to whom compensation has been paid, the scope of the indemnity necessarily is tied to that cause of action." 69In WorkCover Queensland v Amaca Pty Ltd, the court explained (at [25] ff) why to say the phrase "to the extent of that person's liability" in s 207B(7)(a) of the Qld Act (cf s 151Z(1)(d): "liable to pay those damages (being an indemnity limited to the amount of those damages)") requires "a hypothetical assessment of damages that would have been payable had the person to whom compensation has been paid brought an action against the wrongdoer" is "apt to mislead". 70The court distinguished the liability of the wrongdoer per se to the worker from the liability of the wrongdoer to pay damages to the worker. It is the liability in the first sense to which the court looks in determining whether the wrongdoer had legal responsibility for the worker's injury or death at some point in time: WorkCover Queensland v Amaca Pty Ltd (at [26] - [28], [51]). A provision which imposes a condition which is of the essence of the jurisdiction of the court to entertain the worker's claim against the wrongdoer would, if unsatisfied, bar the employer from enforcing the right of indemnity: WorkCover Queensland v Amaca Pty Ltd (at [30]) and the cases referred to in footnote (40), in particular, Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471 (at 488 - 489) per Windeyer J and Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 (at 169) per Windeyer J. 71Conversely, a general limitation on a personal action which does not affect the liability of the wrongdoer, but would operate "as a bar, when pleaded, to any remedy the [worker] may seek when bringing an action for damages pursuant to that liability", does not "affect an assessment of the right of the insurer to indemnity": WorkCover Queensland v Amaca Pty Ltd (at [28], [31]). 72This distinction is important in the context of the question raised at trial but not pursued on appeal, namely whether in seeking to enforce its statutory right of indemnity, the appellant was required to discharge the s 34 obligation of due inquiry. The primary judge held that the appellant was required to do so. In my opinion her Honour was correct in this respect. 73As I explain later in these reasons (see [81]), s 34(1) creates a cause of action against the Nominal Defendant, a condition precedent of which is that there must have been due inquiry for the purpose of identifying the motor vehicle for whose owner or driver's fault the Nominal Defendant is liable: s 34(3)). Thus, the only way the Nominal Defendant can be found to be "some person other than the worker's employer" (s 151Z(1)), in other words, to be statutorily liable for the true wrongdoer's fault, is if due inquiry has been undertaken, but been unsuccessful. Nevertheless, "the liability of the Nominal Defendant arises at the time of injury and the accompanying departure of the offending vehicle": Nominal Defendant v Australian Associated Press [1982] 1 NSWLR 127 (at 132) per Moffitt P (decided in respect of s 30(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942 and s 64(1)(b) of the Workers' Compensation Act 1926 neither of which is relevantly different from the provisions presently under consideration): Nominal Defendant v Hi-Light Industries Pty Ltd [2004] NSWCA 423; (2004) 61 NSWLR 585 (at [27]) per Ipp JA (Beazley and Tobias JJA agreeing). 74Mr Kelly submitted that Penrith City Council v East Realisations Pty Ltd (in liquidation) [2013] NSWCA 64; (2013) 63 MVR 180 ("Penrith City Council") was authority for the proposition that where an employer sought a s 151Z(1)(d) indemnity in an unidentified motor vehicle accident case, the time for assessing whether due inquiry has been undertaken was when the claim for indemnity is made. 75Penrith City Council was a case in which a worker, who was an employee of the Council, was injured in 2003 whilst a passenger on a bus when she was thrown from her seat as a consequence of the bus driver braking heavily in order to avoid colliding with a motor vehicle which had come to an abrupt stop in front of it. There was no collision and, apart from the bus driver apparently indicating from within the bus his ire at the other driver's actions, there was no interaction between them and the motor vehicle continued on its course: Penrith City Council (at [39]). The Police were not involved and the bus driver did not report the matter to his employer: Penrith City Council (at [30], [80]). 76The worker was travelling from her place of employment to her residence at the time. Accordingly she claimed, and was paid, workers compensation, but she did not claim damages from either the owner of the bus or the owner of the car: Penrith City Council (at [17]). The Council's workers compensation insurer pursued a s 151Z(1)(d) claim against, relevantly for present purposes, the Nominal Defendant to recover the compensation paid to the worker: Penrith City Council (at [18]). 77Tobias AJA (with whom Meagher JA and I agreed) observed (at [80]) that "the issue of establishing the identity of the car did not arise until 2008 when the appellant first made a claim for indemnity under s 151Z(1)(d) [by which stage] [t]he trail was not merely cold, but frozen". His Honour concluded (at [82]) "that as at 2008 there was no inquiry or search which would have established the identity of the relevant car ... [and that] any such inquiry of the liquidator of the [alleged bus owner] would have been purely ritualistic and would have proved futile". 78I do not understand Tobias AJA to have been enunciating a special rule for the purposes of a s 151Z(1)(d) action where the worker's claim involved an unidentified motor vehicle as to when the court considers whether the due inquiry obligation was satisfied. Rather, in my view, his Honour was merely dealing with the facts of that case where there was no collision, no exchange of details between the two drivers (or opportunity to do so) and the worker never sought to bring proceedings against the other driver. The only submission the Nominal Defendant made as to due inquiry was that the appellant should have made inquiries of the liquidator of the owner of the bus. In circumstances where there was no evidence the incident was ever reported to the bus owner, Tobias JA correctly rejected the proposition that that was a viable line of inquiry. 79The consequence for the present case is that the question whether the due inquiry obligation was satisfied had to be determined in a notional trial of Mr Tallouzih's proceedings against the tortfeasor. The case was conducted on the basis that that "tortfeasor" was the Nominal Defendant. Accordingly the primary judge had to consider, as her Honour did, whether Mr Tallouzih had a cause of action against the Nominal Defendant because due inquiry had been undertaken and been unsuccessful. Contrary to Mr Kelly's submissions, the case was not to be approached as if the appellant's indemnity action under s 151Z(1)(d) was itself an action under s 34 of the MAC Act. Rather, as I have said, the Nominal Defendant's liability to Mr Tallouzih was an ingredient of the appellant's statutory right of indemnity. 80Accordingly, the primary judge was correct in considering the due inquiry question from the time Mr Tallouzih's cause of action accrued and not, as Mr Kelly submitted, as if the clock started running when the indemnity proceedings were commenced.

Due inquiry 81Section 34(1) of the MAC Act creates a cause of action against the Nominal Defendant, a condition precedent of which is that there must have been due inquiry for the purpose of identifying the motor vehicle and that it must have been impossible thereby to establish the identity of the vehicle: Blandford v Fox (1944) 45 SR (NSW) 241 (at 244 - 245); Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 (at [29]) ("Meakes") per Sackville AJA (McColl JA agreeing); see also (at [3]) per Basten JA. 82It must be the plaintiff or those acting for or on behalf of the plaintiff or in the plaintiff's interest who cannot establish the identity of the other vehicle: Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375 (at 380) ("Cavanagh") per Dixon CJ (Kitto, Taylor, Menzies and Windeyer JJ agreeing). However, that does not mean that the inquiry and search must have been made by the plaintiff or on his or her behalf. "There may be situations in which the tribunal of fact can find that the identity of the vehicle cannot be established on evidence of inquiry and search by others than the plaintiff": Slinn (at 338 - 339) per Barwick CJ. As might be expected, the class of inquirers includes, but does not mandate, the police: Cavanagh (at 381, 384) per Dixon CJ; see also (at 390) per Windeyer J. 83In Blandford v Fox (at 245), Jordan CJ in delivering the judgment of the Court (Jordan CJ, Davidson J and Nicholas CJ in Eq) described the nature of the inquiries which would satisfy the s 34 obligation (then found in s 30(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942 relevantly in the same terms) as follows: "[D]ue inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit. It must be such as a reasonable man who had recourse only against the actual offender would make if he were desirous of identifying the offender in order to commence proceedings against him. The inquiries must if possible be set on foot before the scent is cold, and they must be made by all such means as are reasonably practicable in all quarters in which there is a reasonable prospect of obtaining useful information." (Emphasis added) In Cavanagh (at 381), Dixon CJ referred to Jordan CJ's examination of the due inquiry obligation approvingly. His Honour also said (at 380) that the "word 'established' [in s 30(2)(a)] seem[ed] to have been employed to convey something more than 'ascertained' and something less than 'judicially proved by evidence'." 84In Slinn (at 339), Barwick CJ observed that "the concept [of due inquiry] is that there should be inquiry and that inquiries when they yield leads should be followed up [and that] [a]sking questions without pursuing answers may very well be found insufficient." His Honour observed that "the word 'due'" was the "controlling word for relevant purposes" which "accommodate[d] to the circumstances of the case the nature and extent of the inquiry and search which is required [and that it was] essential that close regard be had to the nature of the situation in which the need to establish the identity of a vehicle arises." 85The "statutory obligation must be considered in a realistic manner": Nominal Defendant v Swift; Wollondilly Shire Council v Swift [2007] NSWCA 56 (at [38]) per Santow JA (with whom Beazley and McColl JJA agreed); Meakes (at [45]). Thus, the plaintiff is not required to take steps which are "no more than a ritual and unlikely to be productive" or a "search or inquiry destined to be futile": Harrison v Nominal Defendant (1975) 50 ALJR 330 (at 331 - 332) ("Harrison") per Barwick CJ (with whom McTiernan, Stephen, Mason and Jacobs JJ agreed); Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259 ("Oztan") (at 265) per Kirby P (with whom Clarke and Powell JJA agreed); Nominal Defendant v Browne [2013] NSWCA 197 (at [14]) per Basten JA (Barrett and Gleeson JJA agreeing). 86However, the plaintiff will not have satisfied the due inquiry obligation if inquiries, which were not merely fanciful, could have been made as to which there was a possibility that something might have been found which would have assisted in establishing the identity of the other vehicle: Bonnici v Government Insurance Office of New South Wales (Court of Appeal, 16 August 1995, unreported) (at 3) per Mahoney AP (Sheller and Powell JJA agreeing). 87Thus, in summary, in order to establish due inquiry, a plaintiff must show, to the appropriate standard, either that there has been "due inquiry and search" but that the identity of the relevant vehicle has not been established or that, although there has not been due inquiry, such an inquiry would not have established the identity of the relevant vehicle: Meakes (at [55]) per Sackville AJA (McColl and Basten JJA agreeing). 88The relevant issue in a s 34 case as to "[w]hether or not the identity of the vehicle might have been established after inquiry and search appropriate to the circumstances of the case ... is a question of fact": Harrison (at 332) per Barwick CJ. Accordingly, an "affirmative finding that the identity of the vehicle cannot be established in terms of the subsection" is one "which a court of appeal must rarely be able to set aside as erroneous": Harrison (at 332). 89The same can be said about a conclusion that due inquiry has not been established. Both are findings of fact about which reasonable minds may differ. A party seeking to challenge a primary judge's finding in that respect, even in a Court such as this where the appeal is by way of rehearing, must establish that the finding was erroneous: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [27]) per Gleeson CJ, Gummow and Kirby JJ. To do otherwise would be to treat the "trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal": Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (at [2]) per Gleeson CJ.

Some other s 34 cases 90The respondent was unable to identify any authority involving a claim against it by a person who had obtained the details of the offending vehicle and then lost them. It was for that reason that Mr Guihot withdrew the concession he had made in the course of argument (see [55] above). 91Although as will be apparent from the foregoing whether the due inquiry obligation has been satisfied turns on the facts of each case (see Harrison (at 332)), brief reference to some cases casts helpful light on the how s 34 has been applied. 92In Blandford v Fox, as Sackville AJA explained in Meakes (at [32]): "... the plaintiff was a pedestrian crossing a road on crutches. He was injured when one of his crutches was hit by a passing car. The car stopped, but the plaintiff did not report the matter to the police or take down any details. Even after he realised the next day that his injuries were serious, he made no further inquiries, except for a 'perfunctory' inquiry made by his solicitors to the police some four weeks later. The Court found (at 246) the evidence was insufficient to establish due inquiry and search." 93In Oztan, the plaintiff's car was stopped at traffic lights when it was struck from behind by another vehicle, which had in turn been struck from behind by a third vehicle. The third vehicle did not remain at the scene. An eyewitness observed the third vehicle's number-plate (which he said was "definitely New South Wales plates with 'P' plates") and gave the information to the second driver who, in turn, told the plaintiff. The eyewitness also recalled the make of the car (a Renault) and described the driver. The vehicle's number was given to the police. A police computer check revealed the third vehicle was stolen and that the number plate was registered in another state. The police inquiries failed to identify the vehicle, leading to the conclusion, at least in the Court of Appeal, that the number was mistakenly recorded: Oztan (at 265). 94The plaintiff retained solicitors soon after the accident to commence a claim for damages on his own behalf and on behalf of his wife and his two children, the other occupants of his vehicle. The solicitors obtained a statement from the eyewitness. They also obtained the P4 motor traffic report and called the constable who prepared it and, apparently, conducted a vehicle registration search. No advertisements were placed to seek to identify the vehicle nor were any inquiries made of interstate motor vehicle registries or at least the Victorian registry: Oztan (at 264). The trial judge dismissed the claim on the basis that there had not been due inquiry. 95Kirby P (with whom Clarke and Powell JJA agreed) concluded that "[a]dvertisements, door knocks and other investigations seem[ed] unlikely to produce the identity of the vehicle, given the way in which it hastened away from the point of impact": Oztan (at 265). His Honour acknowledged that the case was "borderline", but found that, in the circumstances, other inquiries were "unrealistic" and due inquiry had been undertaken: Oztan (at 265). 96In Nominal Defendant v Smith (1998) 28 MVR 165 ("Smith"), the plaintiff said he was injured in October 1993 when he was hit by a car while crossing a busy road. The car stopped. The driver and passenger got out and waited at the scene with the plaintiff. An ambulance, the police and a tow truck arrived. There was no eyewitness to the accident, but a number of people emerged from surrounding houses to observe the aftermath. The plaintiff refused treatment and left the scene in a taxi. The people in the car which hit him offered him assistance, remained at the scene of the accident until he left and helped carry him to the taxi. The car, the ambulance, the police and the tow truck left the scene. The ambulance driver noted on his report that the plaintiff's person damaged the motor vehicle which struck him. There was no evidence that anyone noted the name of the driver of the car or its registration number. The next day the plaintiff went to hospital where he remained for 10 days for treatment to his right leg. He did not report the accident to the police until April 1994 (apparently as part of his attempt to establish due inquiry) when he alleged that he tripped, fell, got up and then was hit by a car which he did not see. He claimed damages against the Nominal Defendant on the basis that he had been injured by the negligent driving of an unidentified driver driving an unidentified vehicle. At trial he said he thought that the police would have taken details of the driver of the other car: Smith (at 169). It did not appear they did so, an omission Sheppard AJA described (at 170) as "quite remarkable", nor was there any record made by the police of any kind in relation to the accident. The trial judge found in favour of the plaintiff. 97Sheppard AJA (with whom Priestley and Meagher JJA agreed) held (at 171) that the plaintiff had not established that the accident was caused by the other driver's negligence. However his Honour also considered the trial judge's ruling that the plaintiff had established due inquiry had been undertaken. His Honour considered (at 174) that there were inquiries the plaintiff could have undertaken which although "a long shot" may possibly have yielded some result. Nevertheless, his Honour was mindful of Barwick CJ's admonition in Harrison against "overzealous interference with the findings of trial judges on matters of this kind" and, accordingly, concluded it was open to the trial judge to form the view he did and would not have interfered with the judgment on the s 34 ground. 98In Meakes the plaintiff, a solicitor who going to the settlement of a commercial transaction, was injured when he was struck by a motor vehicle as he was walking across a pedestrian crossing on Park Street, at the intersection of Elizabeth Street, Sydney. The accident occurred shortly before 4 pm on a Friday. The vehicle stopped and the driver spoke to the plaintiff, however, the plaintiff did not record the registration number of the vehicle before he resumed his walk to the meeting. Within a week of the accident, the plaintiff made inquiries in the vicinity of the accident and identified a witness who, however, was unable to provide any information as to the identity of the vehicle. The plaintiff also undertook other inquiries in the area, including an inquiry as to whether CCTV footage of the incident was available. None of these inquiries yielded worthwhile information. 99Sackville AJA upheld an appeal against the primary judge's finding that due inquiry had been undertaken. His Honour held (at [60]) that "due" inquiry required the plaintiff "to have taken steps at the time of the accident to obtain the registration details of the vehicle that struck him." Thus (at [72]) the case was "one of the relatively rare cases in which a trial Judge's finding that s 34(1) of the MAC Act had been satisfied should be set aside" by reason of, inter alia, the circumstances that: "- unlike most cases involving 'due search and inquiry', the identity of the vehicle which struck the respondent was readily ascertainable by him, had he made a simple inquiry at the scene of the accident; - the respondent was aware at the time of the accident that he had suffered injuries as the 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."

Conclusion: liability 100Both parties to the appeal approached the issue of due inquiry in this Court on the basis that Mr Tallouzih obtained the other driver's details as he said at trial, and that he was told soon after the accident that they had been lost, rather than, as Mr Tallouzih's solicitors wrote to Goldbergs Lawyers in 2002, that, in essence, the other driver had fled the scene: see [27(8)] above. Mr Tallouzih's evidence in chief was to the former effect. He denied in cross-examination having given his solicitors the instructions referred to in their letter. 101The primary judge was clearly troubled by the contents of the solicitors' letter, which she reasonably inferred (at [71]) would have been written on instructions. Her Honour appears to have approached the due inquiry issue (at [73]) on both bases, that is to say that Mr Tallouzih had obtained, but lost, the details or that he had never obtained them, perhaps concluding that once the piece of paper was lost, Mr Tallouzih was in substantially the same position as if he had never obtained the details. Her Honour did not refer to Mr Tallouzih's denial and, even if she had, in my view the inference her Honour drew would have been available. 102There is an argument that, on one view of the evidence, Mr Tallouzih obtained the other driver's details at the scene of the accident so that the case could never be one which fell within s 34. As I have said, the respondent did not advance an argument to that effect. In my view, it is unnecessary to consider it as the appeal can be resolved on the basis of the manner in which the trial was conducted. 103In my view the primary judge did not err in concluding the appellant had not established due inquiry. 104Within a day or so of the accident, Mr Tallouzih believed that he had been badly injured. Within a week, on the same assumption the primary judge made that he had received the other driver's details, he knew those details were lost. That was at the time that his pain was increasing. By the end of the first week he had consulted a doctor following which he lodged a workers compensation claim. He never returned to work. 105Even if Mr Tallouzih had not obtained the other driver's details, he knew what he and his vehicle looked like: he was able to give a good description of both at trial more than eleven years after the accident. This was not a case where there was "no clue of any kind": Harrison (at 332). 106In those circumstances, in my view, a reasonable person in Mr Tallouzih's position should have made prompt inquiries (including placing notices seeking information) in and around Birkenhead Point Shopping Centre, including inquiring of others employed in the Centre to see if anyone either was, or knew, a young man of that description, or someone who drove a car which matched the vehicle which struck Mr Tallouzih's vehicle. The Centre was, as Mr Guihot submitted, a relatively confined area and was, in my view, one in which there was "a reasonable prospect of obtaining useful information": Blandford (at 245). 107The appellant complained that the primary judge identified avenues of inquiry such as reviewing CCTV film when there was no evidence such facilities were available. There is some force in that submission, however, that does not, in my view, undermine her Honour's fundamental conclusion that due inquiry could not be established where Mr Tallouzih made no inquiries after the accident. In those circumstances, the appellant bore the burden of establishing that inquiries in and around the vicinity of the Centre would not have identified the offending vehicle: Meakes (at [55]). 108The underlying premise of the due inquiry concept is that the respondent should not have to shoulder the burden of the negligence of the owner or driver of an unidentified vehicle at the suit of a plaintiff who has made no attempt to identify the vehicle, in circumstances where such inquiry cannot be said to be futile. 109As the due inquiry issue had to be determined in a notional trial of Mr Tallouzih's proceedings against the Nominal Defendant (see [79] above), it is arguable that it is irrelevant that the appellant made no inquiries to identify the other vehicle until 2008 by which stage, as the primary judge said (at [82]), the opportunity to make useful inquiries was limited. However, even if inquiries the appellant undertook were relevant, the fact is that in the period when inquiries should have been made, "before the scent was cold" (Blandford (at 245)), that is to say, before it might reasonably be expected the passage of time would have dulled people's recollections, it also did nothing to try to identify the other vehicle. It knew about the accident almost as soon as it occurred when the workers compensation claim form was submitted, whereupon it started paying Mr Tallouzih compensation. As is apparent (see [27] above), to the extent the appellant made any inquiries, none were made in or about the time it received that notification, and, even when an investigator was engaged, he does not appear to have been instructed to seek to identify the other vehicle. 110Accordingly I would dismiss the appeal, but in case other minds differ, turn to consider the damages issue.

Submissions: damages 111Mr Kelly challenged three components of the primary judge's notional assessment of damages, as to which, as I have said, the respondent conceded two - the mathematical error as to future out-of-pocket expenses and failure to allow for lost superannuation on future economic loss - should be accepted. 112The parties were at issue however, in respect of the amount which should have been allowed in respect of the primary judge's failure to make allowance for past economic loss for the period from 1 October 2001 to the date of trial in 2011 ("the missing period"). Mr Kelly argued that past economic loss for that period should be assessed at $125,028, an approach he submitted was consistent with the 25% diminution in earning capacity the primary judge applied to calculate Mr Tallouzih's future economic loss, and superannuation on that amount of $13,753.08. 113Mr Guihot submitted that the amount the appellant sought for past economic loss for the missing period should be substantially reduced to take into account factors the primary judge found affected Mr Tallouzih's exercise of his residual earning capacity throughout this period. These included Oxford Shop terminating his employment because of the abuse of one or more of his customers and problems he faced, such as back pain (which his surgeon opined required surgery) and depression, that her Honour found were not attributable to the accident. He argued that an appropriate allowance for past economic loss for the missing period, on a broad brush basis, would be no more than $50,000 with a corresponding amount of $5,500 for past loss of superannuation. 114Mr Kelly's response was that the global allowance approach for which Mr Guihot contended should not be adopted as the primary judge had accounted for these factors in using a 25% discount to calculate economic loss, an approach reflected in the figure the appellant sought.

Damages: consideration 115The debate between the parties as to the amount of past economic loss Mr Tallouzih might notionally have recovered against the respondent finds meaning in the appellant's "interest in maximising the seriousness of the injury suffered and the damages which might have been awarded, in order to maximise its recovery of compensation payments": Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 (at [38]) per Basten JA. 116The approach to the figure the primary judge ought to have allowed for the missing period can, in my view, be calculated by reference to the approach her Honour took to future economic loss. Her Honour found Mr Tallouzih was capable of returning to work from the start of October 2001, albeit not to his pre-accident duties. Her Honour's finding as to the future was more explicitly expressed by reason of her dealing with the matters set out in s 126 of the MAC Act, but substantially, in my view, amounted to the same proposition, namely that Mr Tallouzih would never be able to return to his pre-accident duties. Neither party contended that Mr Tallouzih's condition, at least so far as it was attributable to the accident, improved or deteriorated during the missing period. 117The primary judge had found that Mr Tallouzih's back condition and depression could not be attributed to the accident. She notionally allowed future economic loss on the basis that he had approximately a 25% loss of earning capacity attributable to the accident. It is reasonable to infer, in my view, that her Honour took her findings concerning the back condition and depression into account in calculating future economic loss. 118The missing period should, accordingly, be approached on the basis that from when he was certified fit to return to work, Mr Tallouzih had approximately a 25% loss of earning capacity attributable to the accident. That is the approach for which the appellant contended. Based on the figures in the schedule of damages Mr Kelly provided to the Court, I would allow $125,028 for that period and superannuation of $13,753.08.

Compensation: the affidavit issue 119The appellant sought to rely on an affidavit of its instructing solicitor, Mr Clohesy, dated 27 June 2013 which was forwarded to the Court the day before the hearing. The affidavit sought to explain that a solicitor with earlier carriage of the matter on the appellant's behalf had made an error at trial that led to the appellant claiming less compensation than it had paid. The error was identified in the two or so weeks before the hearing of the appeal when the present solicitor was preparing a schedule of interest in respect of the recoverable compensation from the date of payment to the date of the primary judgment. 120The primary judge relied upon the appellant's calculations in determining the amount it could have recovered had her Honour determined it was entitled to claim an indemnity from the respondent. The appellant sought to rely on the affidavit to ask the Court, should it determine the indemnity issue in its favour, in turn, to use what it said was the correct compensation figure disclosed in the affidavit. 121The respondent objected to the affidavit. Mr Guihot submitted that had the compensation figure the appellant now sought to place before the Court been relied upon at trial, the respondent would have conducted its case differently. In particular, he drew the Court's attention to the fact that at trial, the respondent disputed the compensation amount the appellant sought to recover on the basis that it probably included payments in respect of disabilities which her Honour ultimately found were not caused by the accident. He said that had the appellant advanced a ground of appeal which sought to dispute the primary judge's notional compensation figure, the respondent would have filed a notice of cross-appeal challenging the compensation claimed at trial as not being an appropriate amount in any event. 122The Court ruled that it would not permit the appellant to rely upon Mr Clohesy's affidavit and would give reasons in due course in its judgment. 123The Court could not have allowed Mr Clohesy's affidavit to be relied upon without giving the respondent leave to file a notice of cross-appeal out of time, which, in turn would have necessitated the filing, and possible further oral hearing, of submissions concerning the merits of that cross-appeal. 124To allow the appellant to rely upon Mr Clohesy's affidavit at the late stage of the appeal process in which it was produced would, in my view, be inconsistent with the overriding purpose set out in s 56 of the Civil Procedure Act 2005 of facilitating the just, quick and cheap resolution of the real issues in the proceedings and the requirement that parties to the proceedings and their lawyers co-operate in the fulfilment of that purpose. It would not be consistent with the timely disposition of litigation which is central to the administration of justice: see generally Richards v Cornford (No 3) [2010] NSWCA 134 (at [98] - [110]) per Allsop P (McColl and Basten JJA agreeing). 125Both parties are insurance companies. Such parties are expected to propound their commercial disputes with despatch: Richards v Cornford (No 3) (at [124]). Although it appears to have been the appellant's solicitors who were the effective instruments of default in not putting the correct figures before the primary judge (cf Richards v Cornford (No 3) (at [123]), those solicitors were obliged to ensure they did not cause their client to be put in breach of the overriding purpose: s 56(4). 126The Court's obligation to ensure the timely disposition of litigation requires it to consider the dictates of justice (s 58, Civil Procedure Act) not only insofar as it affects the parties to the instant case, but also in a manner which affords justice to all litigants: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [94]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Richards v Cornford (No 3) (at [119]). 127Taking the above considerations into account, it was, in my view, inconsistent with the dictates of justice to permit the appellant to rely upon Mr Clohesy's affidavit.

Orders 128I would dismiss the appeal with costs. 129BASTEN JA: Where a worker suffers an injury for which compensation is payable by his or her employer under the Workers Compensation Act 1987 (NSW) and the injury "was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury" the employer (or its insurer), having paid compensation, is entitled "to be indemnified by the person so liable to pay those damages": Workers Compensation Act, s 151Z(1)(d). In the present case the worker was injured in a motor vehicle accident. The identity of the vehicle is not now known, although it was known to the worker and his employer immediately after the accident. The issue raised by this case is whether the appellant, being the party who has paid workers compensation to the worker, is entitled to recover from the Nominal Defendant the amount of compensation so paid, up to the amount of the damages which would have been payable to the worker with respect to the injury caused by the driver of the other motor vehicle. 130Assuming that negligence could be established on the part of the other driver, it was the other driver who, in the first instance, is the "person other than the worker's employer" in whom a liability is created to pay damages to the worker, for the purposes of s 151Z(1). Because that person can no longer be identified, it is not his liability which is relied upon directly in the present case. Rather the appellant says that the Nominal Defendant is also a "person other than the worker's employer" which has a liability to pay damages in respect of the injury. Accordingly it is necessary to consider whether any such liability has arisen in the present case. It may also be necessary to consider whether, if such a liability has arisen, it can properly be said that "the injury ... was caused under circumstances creating a liability in [the Nominal Defendant]". The issue (not squarely addressed by the parties in this case) is whether the "circumstances" giving rise to liability in the Nominal Defendant were the same as the circumstances under which the injury was caused. 131The first step is to identify the circumstances which are said to create liability in the Nominal Defendant. That in turn depends upon the matters set out in s 34 of the Motor Accidents Compensation Act 1999 (NSW). At trial, an issue arose as to the date at which the Motor Accidents Compensation Act provisions should be addressed. Section 34 was amended by legislation which commenced on 1 October 2008. The transitional provisions stated that the relevant amendments extended to "a claim made after the commencement of the amendment or provision even if the motor accident concerned occurred before that commencement": Motor Accidents Compensation Act, Sch 5, Pt 6, cl 31. If that provision did not apply, then the general transitional provision stated that the Amending Act did not apply in respect of a motor accident that occurred before its commencement: cl 25. The trial judge concluded that the case was not concerned with proceedings for damages against the Nominal Defendant and therefore "there was no claim" made, either before or after the amendment. The special provision in cl 31 was therefore not engaged. 132While it is correct to say that the case is concerned with a statutory indemnity and not a claim for damages against the Nominal Defendant, if the statutory circumstances giving rise to liability on the part of the Nominal Defendant vary over time, it may be necessary to determine at what point in time the question of liability is to be addressed. In the case of a motor accident that occurred before 1 October 2008, it may be necessary to identify when the hypothetical claim for damages would have been made. In any event, it is not necessary to address this issue further as there was no challenge to the proposition that s 34, as in force at the date of the accident, namely 13 March 2000, was the relevant provision. Nor is it apparent that any different analysis would arise if the amendments were applied. 133The liability of the Nominal Defendant depends on three elements, namely, (a) an injury to the victim caused by the fault of the driver of a motor vehicle on a road in New South Wales, where (b) the identity of the vehicle "cannot ... be established", and (c) the inability to establish the identity of the vehicle depends on "due inquiry and search" being made. Nothing turns on the matters included in (a). 134The language noted in (b) and (c) raises a number of issues: three are relevant in this case. First, to say that the identity of the vehicle "cannot... be established" is to say that it is not known and cannot be discovered -the question of timing aside. 135Secondly, it is necessary to identify to whom the identity of the vehicle cannot be "established". Because the purpose of the section is to allow a claim for damages to proceed, the person who must be ignorant of the identity of the vehicle must be the putative plaintiff in an action for damages. That person is not the plaintiff in the statutory indemnity proceedings, nor is it the victim's employer. It may possibly be a family member in relation to a compensation claim brought by relatives, but that possibility can be put to one side. The identity of the vehicle is relevantly "established" if it is known to the person who was injured in the accident and has a claim for damages. 136Thirdly, the phrase "due inquiry and search" requires that all reasonable steps be taken in a timely manner to establish the identity of the vehicle. If those steps are taken and the identity of the vehicle is established, on one view a critical element in an entitlement to sue the Nominal Defendant is missing. 137There was a factual issue in the present case as to whether the worker had, as he asserted, written down the name (or details) of the other driver on a piece of paper immediately after the accident. The trial judge noted his evidence to that effect and his further evidence that he had given the piece of paper to his employer: at [68] and [73]. It is unclear whether the trial judge accepted that evidence. She appears to have dealt with the matter on the basis that the worker knew that his employer had lost the piece of paper within three or four days of the accident and did nothing to carry out any further inquiry or search to identify the other driver or the vehicle: at [78]. That approach assumed the details had in fact been obtained, noted and the note given to the employer. On that basis, the worker's evidence appears to have been accepted, as recorded by a solicitor in 2008, that he "gave details of other driver to employer after the accident". 138The precise facts as to what the worker did are not, however, critical. It is not in dispute that the other vehicle stopped after the collision; the worker was not incapacitated by the collision; he had the ability to obtain details of the driver and identity of the other vehicle and, his vehicle having been the subject of significant damage, appreciated the need to obtain relevant details from the other driver. Whether or not it was taken, there was an immediate opportunity to make "due inquiry" without the need for any "search". If the worker did not avail himself of that opportunity, he would not have been able to proceed against the Nominal Defendant: Nominal Defendant v Meakes [2012] NSWCA 66 at [72]-[74] (Sackville AJA, McColl JA at [1] and I at [3]-[4] agreeing). The result cannot be different if he did avail himself of the opportunity, but the record of the details of the other driver were later misplaced and lost or destroyed. It may be that in other circumstances a later inquiry will be sufficient, but the statutory precondition is not expressed as operating from time to time as the justice of the case requires. Where "due inquiry" is made and is successful, the temporal question falls away. 139In these circumstances, the debate as to what steps the worker (or anyone else) might or should have taken after he learned that his note of the details of the other driver had been misplaced or lost are irrelevant. A key precondition for liability on the part of the Nominal Defendant was not established. Accordingly, the appeal should be dismissed with costs. 140If this analysis be not correct, I am content to adopt the alternative approach of McColl JA and her reasons and conclusions with respect to quantum, including for the rejection of the affidavit. 141LEEMING JA: I agree that the appeal should be dismissed for the reasons given by Basten JA, and alternatively for the reasons given by McColl JA. I also agree with the reasons and conclusions of McColl JA in relation to damages, and the rejection of the affidavit.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2013