His Honour Judge McGill SC had to consider this issue in the matter of Drzyzaga v Nominal Defendant1. Here the Plaintiff was a driver of the semi trailer exiting off the Pacific Highway to the Nerang – Broadbeach Road at Nerang on 24 February 2009.
The exit ramp itself was divided into two lanes with traffic turning left under the control of a “Give Way” sign and traffic travelling either right or straight through under the control of traffic lights.
The Plaintiff stated that as he went up the exit lane he did a right sided mirror check and then saw in front of him on the slip lane to turn left an unidentified white tray back Utility stationary on the exit ramp. He said that he moved to the right and then was faced with traffic waiting under the control of the traffic lights and then moved back to the left to avoid them and went up the median strip and stopped. The unidentified white tray back Ute left the scene.
Proper enquiry and search
The Nominal Defendant said the Plaintiff did not inform the Police promptly after the accident about the information in his possession concerning the unidentified vehicle.
His Honour Judge McGill followed the High Court decision of Harrison v Nominal Defendant2. His Honour Justice Barwick CJ said the following as to proper enquiry and search:
“The question is whether the identity of the vehicle cannot be established through such enquiry and search as it might appropriately be made in the circumstances of the case had taken place”.
His Honour Judge McGill said on the facts of this case that there was:
- Nothing distinctive about the vehicle;
- Nothing about its description;
- Nothing distinctive about its driver;
- The unidentified vehicle was not directly involved in the collision;
- There was apparently no serious injury suffered by the Plaintiff in the accident.
In light of the above, he said it was inconceivable that any serious attempt would be made by the Police to identify the driver of the white Ute no matter how promptly the matter had been reported to them.
He acknowledged that attempts were made subsequently by advertising in the newspaper, that was unsuccessful.
His Honour Judge McGill then concluded proper enquiry and search had been undertaken following the High Court authority.
His Honour found that it was plainly negligent and in fact serious negligence on the part of the driver of the unidentified vehicle to stop his vehicle in the position where he had on the exit lane. It was the primary cause for the action of the Plaintiff to take avoiding action.
His Honour also found that the Plaintiff was contributing negligent. He acknowledged that it was not contributory negligence for him to do a mirror check on the right side. That was part of good driving practice.
However, he acknowledged that the Plaintiff admitted under evidence that he spent more than what he believed was reasonable time in trying to check his mirrors in the circumstances.
To that end, it was noted that a failure of reasonable care for his own safety and essentially failing to keep a proper look out. To that end, he found the Plaintiff to be contributory liable to the extent of 20%.
The Plaintiff post accident underwent a return to work program but did not resume his normal pre accident role as a semi trailer driver in that he had difficulties coping with unloading cargo. He was placed on ordinary truck delivery duties of pallet loading but again felt that this was beyond his capabilities and moved to delivery goods to department stores. Ultimately, at the time of the trial he was on a truck driving role of simply delivery soft drinks which were on pallets.
Dr Greg Gillett, Orthopedic Surgeon, assessed the Plaintiff with having a chronic musculoligamentous strain to the cervical spine with referred pain to the right shoulder and musculoligamentous strain to the thoracic spine with a 0% for the thoracic spine and 5% impairment for the cervical neck.
Dr David Morgan for the Defendant assessed a musculoligamentous strain to the neck, with a 5% loss of function, but said that he was able to perform long haul and short haul driving without impairment.
General damages were assessed at an ISV of 12 based on a dominant injury of 88 with an uplift to an ISV of 12 on account of multiple injuries and pain.
He was allowed ongoing future medical costs of $11.00 per week for pain relieving medication plus three visits with a Physiotherapist every two years discounted by 25%.
Past economic loss was limited to his earnings from loss of Workers’ Compensation plus a short period of overtime loss of 12 weeks of between his two driving roles.
Future economic loss, it was acknowledged that he was at risk on the open labour market notwithstanding an employer that could offer him full time employment to retirement age. It was on the basis that he had 20 years working life and may not in fact remain with his current employer and therefore, have to resort to the open labour market on more than one occasion. The global allowance was assessed at $80,000.00 which was less than 18 months of his current earnings.
As typical with most cases whether a person undertakes proper inquiry and search is a question of fact. The same applies to liability and contribution negligence as was determined here as well as the llowance of loss of earnings. Although they are useful guides, they can obviously have restrictions.