Tag: Nominal Defendant

#38 – Due Inquiry & Search Conducted Before Scent Went Cold

Decision

Raad v Nominal Defendant by its agent Allianz Australia Insurance Limited [2026] NSWPIC 173

Sixty-Second-or-Less Read

A pedestrian is run down by a vehicle exiting a driveway. The offending driver leaves the scene without exchanging details. The Claimant says that he did not record the details of the offending vehicle, at the scene, because he was in pain. He reported the accident to the police the day after the accident and canvassed the businesses in the area for CCTV eleven days post-accident. Further steps were taken 18 months after the accident.

Has the Claimant conducted due inquiry and search into the identity of the offending vehicle?

In Raad v Nominal Defendant, a PIC Member found that the steps taken by the Claimant immediately after the accident, which included reporting the accident to the Police, constituted due inquiry and search even if subsequent steps, undertaken 18 months later, were undertaken after the scent had grown cold.

Principles

✅ Section 2.30 of the Motor Accident Injuries Act 2017 (MAIA) provides that the Nominal Defendant is not liable for death or injury caused by an unidentified vehicle unless the Claimant has conducted due inquiry and search into the identity of the offending vehicle.

✅ Due inquiry and search must be prompt and as thorough as the circumstances permit.

✅ Due inquiry and search must be conducted before the scent grows cold.

✅ The Claimant, however, is not required to take steps which are likely to be futile or purely ritualistic.

✅ Due inquiry and search may be conducted by another person or entity in the interests of the Claimant.

Facts

The Claimant was involved in a pedestrian accident on 6 February 2023. Whilst crossing Canterbury Road, Bankstown, a blue sedan exited a driveway and knocked him down.

The offending vehicle was either a Ford or a Holden. The offending driver exited his vehicle and asked whether the Claimant was alright, before departing the scene. No details were exchanged before the offending driver left.

At the time of the accident, the Claimant was taking a lunch break after attending some workplace training. The other trainees assisted him following the accident. The Claimant was subsequently diagnosed with a fractured right leg and other musculoskeletal injuries.

The Nominal Defendant denied the claim for statutory benefits on the grounds that the Claimant failed to conduct due inquiry and search into the identity of the offending vehicle, as required by section 2.30 of MAIA.

Due Inquiry and Search

The Claimant took the following steps to identify the offending vehicle:

📆 7 February 2023 – the Claimant reported the accident to Bankstown Police who conducted their own inquiries, including canvassing for CCTV footage of the accident.

📆 17 February 2023 – the Claimant sent emails to businesses adjacent to the accident site, requesting CCTV footage.

📆 25 September 2024 – the Claimant placed an advertisement in the Sydney Morning Herald requesting information from the public.

📆 September 2024 – the Claimant placed flyers around the accident site requesting information about the at-fault driver.

The Claimant also sought information from his employer regarding the identities of the other trainees who assisted him following the accident. His requests, however, were denied on privacy grounds. Once proceedings were commenced in the Personal Injury Commission, the Claimant sought to obtain that information via a Direction for Production.

The Member’s Decision

The Member concluded that the Claimant had conducted due inquiry and search for the following reasons:

🟪 The Claimant had an opportunity to photograph the offending vehicle at the scene or to otherwise record its details. A reasonable person in the Claimant’s position, however, may not have had the presence of mind, at the scene, to record the details of the offending vehicle given the pain they were experiencing immediately following the accident.

🟪 The Claimant reported the MVA to the Police the day after the accident and emailed local businesses, seeking relevant CCTV, within 11 days of the accident. These enquiries were appropriate and sufficiently prompt.

🟪 The steps conducted in September 2024 – over 18 months post-accident – were undertaken after the scent had gone cold.

My Perspective

The decision in Raad provides a useful summary of the principles which must be applied in assessing whether a claimant has conducted due inquiry and search into the identity of an offending vehicle.

Whilst the Member found that steps undertaken over 18 months post-accident were undertaken after the scent had gone cold, the Member appears to have accepted that the steps taken promptly – within the first 11 days post-accident – were sufficient to discharge the Claimant’s statutory obligation to conduct due inquiry and search. Those steps included reporting the accident to the Police the day following the accident.

PJH

#11 – When is Due Inquiry & Search Reasonable?

Decision

Palmer v Allianz Australia Insurance Limited [2025] NSWPIC 440

Sixty-Second-Or-Less Read

A motorist is stationary in traffic when her vehicle is hit from behind. They are on a busy road, so the Claimant suggests the parties move to a nearby carpark to exchange details. The offending driver agrees but takes the opportunity to abscond.

Has the Claimant failed to conduct due inquiry and search into the identity of the offending vehicle given that she could have taken a photo of the offending vehicle’s number plate at the scene.

In Palmer v Allianz, a PIC Member found that the Claimant’s actions were reasonable and that she could not have anticipated that the offending driver would flee the scene. Furthermore, she reported the accident to the Police within hours, conducted her own search for CCTV and posted messages on Facebook for witnesses. The PIC Member, therefore, concluded that the Claimant had conducted due inquiry and search.

Principles

✅ Pursuant to s 2.30(2) of the Motor Accident Injuries Act 2017 (MAIA), a claim cannot be made against the Nominal Defendant, in respect of injury caused by an unidentified vehicle, unless the Claimant has conducted due inquiry and search into the identity of the offending vehicle.

✅ What constitutes reasonable due inquiry and search depends upon the circumstances.

✅ Due inquiry and search must be thorough and must be conducted promptly.

Facts

On 27 November 2024, the Claimant was involved in a motor accident whilst driving to work. She was stationary in traffic when another vehicle collided with the rear of her vehicle, pushing it into the vehicle ahead.

The three drivers exited their vehicles in order to examine the vehicle damage and exchange contact details. Given, however, that the accident occurred on a busy road, during the morning rush hour, the Claimant suggested that they all return to their vehicles and drive into a nearby TAFE car park. The car park was only some 30 metres further down the road.

The Claimant and the driver of the vehicle she was pushed into both drove into the car park, but the at-fault driver drove away.

The Claimant proceeded to exchange details with the innocent party. She then drove straight to Burwood Police Station to report the accident.

The Claimant made a claim against the Nominal Defendant because she could not identify the vehicle she alleged to be at fault.

The Nominal Defendant, however, denied liability on the grounds that the Claimant had failed to conduct due inquiry and search into the identify of the offending vehicle, as required by s 2.30(2) of MAIA. The Nominal Defendant alleged that the Claimant had the opportunity to record the details of the offending vehicle, at the scene, but failed to do so.

The Member’s Reasons

🟪 The Member found that the Claimant had discharged her obligation to conduct due inquiry and search for the following reasons:

🟪 The Court of Appeal’s decision in Nominal Defendant v Meakes [2012] NSWCA 66 establishes that “what is reasonable depends on the circumstances and must be prompt and thorough as the circumstances permit”.

🟪 Given the accident occurred on a single lane roadway in heavy traffic, during the morning rush hour, it was reasonable for the Claimant to suggest that the parties drive to a nearby carpark to exchange details

🟪 The Claimant had no reason to assume that the offending driver would abscond, given that he had agreed to re-convene in the nearby carpark.

🟪 There was evidence that the front number plate had fallen off in the collision and the offending driver had picked it up. If that is correct, the Claimant was not able to take a photograph of that number plate.

🟪 The Claimant report the accident to the police within hours of the accident occurring and liaised with the police, over the following weeks, in the hope that some CCTV might help to identify the offending vehicle.

🟪 Furthermore, the Claimant had scouted the area around the accident site to look for cameras and had joined a Facebook group and posted about the accident.

Pete’s Perspective

The Insurer’s reliance on Nominal Defendant v Meakes was well placed given that both the claimant in Meakes and the claimant in this dispute had an opportunity, at the scene, to record the registration number of the vehicle but did not do so.

In Meakes, the Claimant was a partner in a law firm. He was crossing a busy city intersection on a marked pedestrian crossing when he was run down by a vehicle in the kerbside lane. The driver jumped out of the vehicle and spoke to the Claimant. The Claimant, however, was in a rush to attend a meeting so he left the scene without first taking down the details of the vehicle which struck him.

Contrary to the typical hit and run accident, the Claimant got hit and he was the one to run.

The Court of Appeal accepted in Meakes that the Claimant had not conducted due inquiry and search. He knew he was injured, at the scene, but his injuries did not prevent him from opening the brief case he was carrying, retrieve a pen and a piece of paper and write down the registration number of the vehicle which was still stationary next to him. The driver, after all, was co-operating and made no attempt to abscond.

The Court of Appeal’s decision in Meakes, however, accepted that every case is different and what is reasonable depends on the prevailing circumstances of the case.

In this dispute, the PIC Member accepted that the Claimant acted reasonably by moving the conversation to the nearby carpark – in order to allow the motorists on the busy single-lane road to get on with their days – and that the offending driver’s subsequent decision to flee the scene was something she could not have anticipated.

PJH