A harsh decision was handed down by the Supreme Court of Queensland this year rejecting a claim by an injured motorbike rider who failed to make proper inquiries following a motor vehicle accident.
Case: Ford v Nominal Defendant [2022] QSC 179
The circumstances of the accident were that a truck and motorbike were travelling on a motorway when the truck overtook the motorbike and a piece of timber from the rear of the truck slipped off and landed in the path of the motorbike. The motorbike rider was unable to avoid the piece of timber, and it caught the rear tyre. The rider was injured by the jarring impact of the timber but was able to continue riding without losing control. He did not however record the registration plate of the truck ahead of him.
Had the truck's registration number been recorded, a simple search via the Motor Accident Insurance Commission would have revealed the relevant compulsory third party (CTP) insurer, allowing the motorbike rider to bring his claim against the CTP insurance policy.
Because the injured claimant did not know the registration number, he brought his claim against the State of Queensland's Nominal Defendant instead.
Suing the Nominal Defendant as the insurer of an unidentified vehicle
In Queensland, when at-fault motor vehicles are unable to be identified, or in circumstances where the vehicle does not have compulsory third party insurance, the State's Nominal Defendant is capable of being sued in the place of a standard compulsory third party insurer. When suing the Nominal Defendant under the Motor Accident Insurance Act 1994 (Qld) on the basis of being unable to identify the at-fault vehicle, there is a presumption set out at Section 31(2) that "proper inquiry and search" has been undertaken by the claimant which failed to establish the identity of the at-fault vehicle.
The Nominal Defendant opposed the claim on the basis that the injured motorbike rider did not make proper inquiry and search which would have revealed the truck's registration plate, and therefore a 'proper' CTP insurance company to be sued instead.
A claim was brought before the court to determine whether, on the facts, proper inquiry and search had been made by the motorbike rider in the circumstances. The court said that the motorbike rider only had to do what was reasonable in the circumstances with respect to making inquiries and searches. Effectively, if the motorbike rider did all that was reasonable, he would win his claim. But if he did not make reasonable inquiries and searches, he would lose.
The key circumstances were that the motorbike rider:
- saw the piece of timber drop off the truck when the truck was about 10 metres ahead of him;
- felt a degree of pain riding over the piece of timber and knew he had been injured by it, in addition to being frightened by the impact;
- was travelling slower than the truck;
- was unable to see any signage on the truck in front of him to help identify it;
- had the truck in view for about 25 seconds, with traffic around him at the time;
- said he could have positioned himself so that he could see the registration number of the truck but made no attempts to do so;
- attended the scene the following day and took photos of the site;
- only saw a doctor about 4 months later when his symptoms did not fully resolve;
- made enquiries with a solicitor about 7 months after the
incident about his right to claim and subsequently:
- made inquiries with three businesses in the area to attempt to obtain CCTV from the time (unsuccessfully);
- engaged an investigator to make further inquiries.
Court Decision
The court considered the circumstances and held that because the motorbike rider admittedly could have put himself in a position to observe the registration details of the truck, and did not take any other immediate or urgent enquiries at the time, he did not make proper enquiries and searches.
Accordingly, the presumption of Section 31(2) was successfully rebutted, disentitling the motorbike rider to bring his claim against the Nominal Defendant.
The motorbike rider's claim was dismissed.
Opinion
Is it reasonable for a motorbike rider who simply had a possibility of gaining a view of the at-fault truck's registration number for a matter of seconds to have somehow recorded it? Whilst registration plates are typically only 6-digits, it is not always easy to remember details like that. The decision implies that there was an expectation that the motorbike rider should have done so. Realistically, the process required by the rider would therefore have been for him to (whilst in a state of shock) sight the truck's registration number, pull over to the curb or a safe space on the motorway, dismount and then note the number plate correctly on his phone (if he had one on him) to be able to properly make his claim.
Roche Legal respects the decision of the court, but are of the opinion that the judgement was harsh on the motorbike rider in the circumstances.