Cyclist struck crossing driveway

Keywords

Nominal Defendant – reasonable search and inquiry – whether plaintiff appreciated the extent of injuries – collision between motor vehicle and cyclist – unidentified vehicle.

Facts

On 20 December 2019, the plaintiff was riding his bike along the footpath. As he crossed a driveway he was struck by a vehicle on his left side.  The driver exited the vehicle and offered to call an ambulance and two other bystanders offered assistance.  The plaintiff declined their offer, abandoned his bicycle in nearby bushes and walked home without recording any details of the vehicle.

On 4 February 2020, police notified the plaintiff they were unable to identify the vehicle.  The plaintiff’s injuries persisted, and he subsequently sought legal advice on 22 September 2020.

The issue at trial was whether the vehicle was an “unidentified motor vehicle” for the purposes of Section 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT).  This required the trial judge to determine whether the vehicle could have been identified after reasonable inquiry and search.  The plaintiff was successful at trial.  The trial judge was prepared to find that his failure to record the number plate details or otherwise identify the driver immediately after the accident was because he was experiencing an emotional shock, did not appreciate the extent of his injuries and due to his own peculiar personality traits, which caused him to react poorly to what had occurred.

The Nominal Defendant appealed on the basis that the plaintiff remained capable of reasoning and decision making at all relevant times, that the plaintiff had not proven the identity of the vehicle could not be identified after reasonable inquiry and search, and that the trial judge erred by finding that it was understandable and excusable for the plaintiff not to have recorded the registration details in the circumstances.

Decision

Taylor J, delivered 27 December 2024. Appeal dismissed.

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Ratio

Taylor J held that the plaintiff’s actions immediately after the accident (including getting up off the road, refusing assistance, making observation of people around him, abandoning his bicycle and answering a phone call) did not undermine the evidence that established that he did not appreciate the extent of his injuries. 

The plaintiff did not realise his thumb was bleeding and his right hand was not functioning until three to four minutes later, and when he returned to the scene 8 minutes later, the vehicle was gone.  There was therefore no error in finding the plaintiff did not appreciate the extent of his injuries in the time between the accident and his realisation the vehicle was gone. 

While the plaintiff appreciated he was hurt or in pain immediately after the collision, this did not mean he appreciated he had suffered anything other than minor or trivial injuries, as was observed in Ford v Nominal Defendant [2023] QCA 83. 

Taylor J went on to find that reasonable inquiry and search, in these circumstances, did not require the plaintiff to record the registration of the vehicle or identify information of the driver in the period until he realised his hand was not working and the driver had left the scene.