SUPREME COURT OF QUEENSLAND

CITATION:	Ford v Nominal Defendant [2023] QCA 83	
PARTIES:	TRENT ANTHONY FORD
(appellant)
v
NOMINAL DEFENDANT
(respondent)	
FILE NO/S:	Appeal No 11582 of 2022
SC No 317 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal	
ORIGINATING COURT:	
Supreme Court at Brisbane – [2022] QSC 179 (Martin SJA)	
DELIVERED ON:	28 April 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	22 March 2023	
JUDGES:	Morrison JA and Gotterson AJA and Applegarth J	
ORDERS:	1.	Appeal allowed.
2.	The orders dated 31 August 2022 be set aside.
3.	The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.
4.	The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.
5.	The respondent pay the appellant’s costs of the appeal.	
CATCHWORDS:	INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – DUE INQUIRY AND SEARCH – where the appellant suffered injuries as a result of a motor accident – where the appellant was unable to establish the identity of the vehicle or driver – where the primary judge found that by failing to attempt to obtain the number-plate details immediately after the accident, the appellant failed to engage in a “proper inquiry and search” – where the appellant contends that “proper inquiry and search” did not require the appellant to pursue the vehicle immediately after the incident in circumstances where he did not know he was injured – where the respondent contends that “proper inquiry and search” required the appellant to return to the incident site on a subsequent evening to look for the vehicle – where the respondent contends that “proper inquiry and search” required the appellant to look for the unidentified vehicle in the local road network – whether the appellant, in the circumstances in which he was placed, had made a “proper inquiry and search” so as to engage the presumption in s 31(2) of the Motor Accident Insurance Act 1994
Limitation of Actions Act 1974 (Qld)
Motor Accident Insurance Act 1994 (Qld), s 31(2)
Cavanagh v Nominal Defendant (1958) 100 CLR 375; [1958] HCA 57, cited
Harrison v Nominal Defendant (1975) 50 ALJR 330; (1975) 7 ALR 680, cited
Mason v Toowoomba City Council [2005] 1 Qd R 600; [2005] QCA 46, followed
Nominal Defendant v Ayache (2014) 67 MVR 473; [2014] NSWCA 253, cited
Nominal Defendant v Browne (2013) 64 MVR 214; [2013] NSWCA 197, cited
Nominal Defendant v Meakes (2012) 60 MVR 380; [2012] NSWCA 66, distinguished
Nominal Defendant v Ross (2014) 87 NSWLR 230; [2014] NSWCA 212, cited
Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259; [1996] NSWSC 36, cited
Workers Compensation Nominal Insurer v Nominal Defendant (2013) 64 MVR 542; [2013] NSWCA 301, cited	
COUNSEL:	C C Heyworth-Smith KC, with M A Eade, for the appellant
G W Diehm KC, with M G Zerner, for the respondent	
SOLICITORS:	Travis Schultz & Partners for the appellant
Jensen McConaghy for the respondent	
[1]	MORRISON JA:  I have read the reasons of Applegarth J.  I agree with those reasons, and the orders his Honour proposes.
[2]	GOTTERSON AJA:  I agree with the orders proposed by Applegarth J and with his Honour’s reasons for them.
[3]	APPLEGARTH J:  The appellant was a postal delivery worker.  A block of wood fell from the back of a large utility vehicle into the path of his motorcycle.  The appellant was jarred as the back wheel of his motorcycle went over the wood, stayed upright, and felt uninjured.  He returned in a state of shock to his depot, “gobsmacked” that he had not been hurt.  His motorcycle was undamaged.
[4]	A crucial issue is whether, in the circumstances in which the appellant found himself for the 20 seconds or so after the incident, he should have pursued the vehicle in an attempt to read and remember its number-plate.
The facts
[5]	On 11 March 2019 at around 5.15 pm the appellant was riding a 100 cc motorcycle to his depot at the end of his shift.  He was in the left lane of the dual carriageway of Redland Bay Road, heading in a north-westerly direction.
[6]	The speed limit on that arterial road was 80 kph.  The appellant estimated that his low-powered motorcycle had been travelling at about 60 or 70 kph at the time of the incident.  The utility passed him and then entered the left lane of the dual carriageway.
[7]	Just as it entered the left lane, a large piece of wood fell from the back of its tray.  By quick action, the appellant managed to avoid the wood with his front wheel, but the back wheel ran over it.  The back of the motorcycle did a “bunny hop”.
[8]	The incident jarred the appellant and he was in a state of shock.  As he said in his evidence:
“I was pretty thankful to not be on the bitumen.  I was – that was honestly – all I was thinking about was I’m not hurt, I’m not on the ground, get back to the office.” 
[9]	The tray of the large utility or small truck from which the wood fell contained the type of equipment that concreters use and the dirty piece of timber resembled the type of timber that is used to box concrete.  After the timber fell from it, the vehicle continued along Redland Bay Road, moved to the right lane, then went into a turning lane that would allow its driver either to turn right into Sevenoaks Street or do a U-turn.
[10]	This all occurred within about 20 seconds after the incident.
[11]	The appellant did not think about giving chase during those 20 seconds and before the vehicle turned in one of those directions.  He stayed in the left lane of Redland Bay Road, felt unhurt, and could not believe his luck at avoiding injury.  He said that he was just on “auto-pilot” on his way back to the nearby Australia Post Delivery Centre.
[12]	Back at the centre he parked his bike, walked into the office and told the administrator:
“I can’t believe I’m not hurt.  I’m not on the road.”
[13]	It was only at this point that he had “time to digest what just happened.”  He was “sort of still gobsmacked that [he] wasn’t hurt”.
[14]	At the time of the incident the appellant had used his left foot to lean the motorcycle to his left to avoid the wood.  The appellant felt a jolt and “a degree of pain” to his back and ankle at the time the back wheel went over the wood.  He believed at that time that he was uninjured.
[15]	By the time he returned home that night his left ankle and back felt sore.  The next morning he felt worse and struggled to get out of bed, but he went to work and saw his manager, who referred him to an employer-approved doctor.  That doctor told the appellant to take anti-inflammatory medication and some Panadol.
[16]	A week after the incident the appellant returned to work on light, administrative duties and made a formal incident report.  That day, the report-writer, the appellant’s team leader and the appellant went to the site of the incident to see if they could find the timber, but could not find anything.  They took photos in the vicinity of where the vehicle lost its timber.
[17]	After six to eight weeks on light duties, the appellant attempted a graduated return to work as a postal delivery officer, but his back remained very sore when riding the motorcycle.  After a few days he told his manager that he did not feel that he was getting better, did not want to ride the bike anymore, and wanted to see a different doctor.  He saw a different doctor who arranged an MRI, which revealed a disc prolapse and torn nerve sheathing.
[18]	Over the next few months the appellant’s back did not improve, and what had been a sharp, shooting pain was replaced by numbness.
[19]	Because the appellant was injured in the course of his work, he was entitled to workers compensation.  One of his workmates suggested in October 2019 that he should see a solicitor.  The appellant did so and, after discussion with a solicitor, reported the incident to police and went to businesses along Redland Bay Road to see if there was any CCTV footage.  However, none existed because the cameras did not record vehicles on the main road.
[20]	The appellant lodged a claim against the Nominal Defendant.  An investigator engaged by the Nominal Defendant did searches and made inquiries in the local area about the possible identification of the unidentified vehicle.
The proceeding
[21]	In a proceeding in the trial division for negligence, neither the negligence of the unidentified driver nor the quantum of the appellant’s claim was disputed.  The sole issue litigated by the respondent was whether the appellant had made a “proper inquiry and search” so as to engage the presumption in s 31(2) of the Motor Accident Insurance Act 1994 that the relevant motor vehicle “cannot be identified”.  In such an event, the Nominal Defendant is the insurer.  Under s 31(2) it is to be presumed that a motor vehicle cannot be identified if it is established that “proper inquiry and search have been made and have failed to identify the identity of the motor vehicle”.
[22]	The primary judge found that the appellant:
“(a)	could have, without great difficulty, observed and remembered the number-plate of the other vehicle;
(b)	was aware, immediately after his motorcycle passed over the piece of timber, that he had suffered pain; and
(c)	could reasonably have been expected to obtain the relevant details at the scene.”
The primary judge then found that by failing to attempt to obtain the number-plate details, the appellant failed to engage in a proper inquiry and search.
[23]	The appellant submits that the primary judge erred in so concluding.  In essence, he submits the following:
1.	At the relevant time during which the appellant might have pursued the vehicle, being the 20 seconds or so between the incident and when the motorcycle and the vehicle took different paths, the appellant did not believe that he had been injured, was in a state of shock, having narrowly escaped serious injury, and reasonably carried on in the left lane in the direction of his intended destination at his depot.
2.	The primary judge incorrectly equated the pain that the appellant felt from being jolted with the suffering of an injury, and then assigned that error to the appellant’s mind, as if the appellant knew he was injured from the moment of the incident.
3.	The primary judge then erred in treating the appellant’s short-lived jarring pain, as knowledge in the appellant that he was injured and injured to such an extent that he might have a compensable injury.
4.	The primary judge applied a standard of “proper inquiry and search” that is incompatible with authorities that require in this case close regard to the circumstances in which the appellant was placed at the time of the incident and for the following 20 seconds.
5.	During that 20-second period “proper inquiry and search” did not require the shocked rider of a small motorcycle, who believed he was not injured, to pursue a vehicle that was crossing lanes and then turning in a different direction, in order to observe and remember the details of its number-plate.
[24]	The respondent seeks to uphold the primary judge’s finding that the appellant could reasonably have been expected in the short period immediately after the incident to pursue the vehicle to obtain its number-plate details, and to then remember them.
[25]	In the alternative, and in reliance on a notice of contention, the respondent submits that the primary judge should not have rejected its alternative argument that “proper inquiry and search” required the appellant to return to the scene on a subsequent evening at about the same time, in the hope of seeing the vehicle.  The primary judge found that doing so:
“…would not have been reasonable given the traffic which passes along Redland Bay Road and the absence of any evidence to suggest that the vehicle might pass that way again.  It was unrealistic and a plaintiff is not required to take steps which are no more than a ritual and unlikely to be productive.”
[26]	The final issue on the appeal is the third basis upon which the respondent relied to contend that the appellant had failed to make “proper inquiry and search”.  It pleaded that “proper inquiry and search” included the plaintiff “looking for” the unidentified vehicle at one of the premises on streets into which it may have travelled if it had turned right off Redland Bay Road (namely, Sevenoaks Street or any road running off it, and nearby roads) or on the eastern side of Redland Bay Road in that vicinity (assuming the vehicle did a U-turn).
[27]	At the trial the respondent submitted that the appellant should have looked for the vehicle in the local road area after the incident, and even as late as the time he gave notice to the Nominal Defendant in November 2019.
[28]	The primary judge, having earlier found that the appellant had failed to engage in a “proper inquiry and search” by not attempting to obtain the number-plate details of the vehicle immediately after the incident, addressed this issue for completeness.  He observed that “some form of reconnaissance” in Sevenoaks Street and nearby areas within a short time after the accident would have been appropriate, but:
“…given that there was no unusual activity which might have alerted the residents of Sevenoaks Street, the inquiries might not have borne fruit.”
The primary judge went on to state that this observation was not to say, though, that appropriate inquiries taken within a short period would not have constituted “proper inquiry and search”, and stated that the “placing of notices seeking information in letter boxes in that street would, for example, have been a reasonable step to take in the circumstances.”
[29]	The appellant points out that such a form of inquiry was not a form of inquiry that the respondent relied upon.  The respondent pleaded that the appellant should have “looked for” the vehicle, not made other kinds of inquiry in the vicinity.  The respondent contends that the primary judge’s reference to letter box dropping was merely an example, and that the primary judge found that the appellant failed to engage in “proper inquiry and search” in not undertaking a search of the relevant surrounding area within a short time after the accident.  In reply, the appellant contends that both in evidence and submissions at trial the respondent focused on the three forms of inquiry and search pleaded by it, that no evidence was given and the appellant was not cross-examined about other, unpleaded forms of inquiry such as letter box dropping, and that no submissions were made about those additional forms of inquiry.  It submits that the respondent is bound by the case it pleaded and by its conduct of the case below.
[30]	As for the timing of what the primary judge referred to as “some form of reconnaissance” in nearby streets, the primary judge added that to go back some months later “would have been the triumph of enthusiasm over reason”, and that by then “it might reasonably be expected that the passage of time would have dulled people’s recollections.”  This observation suggests that the primary judge was addressing a different kind of inquiry to the third form of inquiry pleaded by the respondent, which was “looking for” the unidentified vehicle in those streets.  The respondent did not plead that the appellant should have made inquiries of residents about their recollections.
[31]	As it happened, the respondent’s investigator searched and made inquiries in the vicinity.  That evidence was relevant to the likelihood or unlikelihood that making observations at the scene of the incident, or in nearby streets, some months earlier was likely to have produced results.
[32]	The second and third forms of inquiry and search pleaded and advanced by the respondent at trial suggested that the appellant should have tried to observe the vehicle by looking for it on a subsequent occasion, not that he should have made inquiries with householders or letter boxed in certain relevant streets.  The respondent accepts that it is bound by the case it pleaded and conducted at first instance.
The issues on the appeal
[33]	The essential factual issues raised by the appeal and by the notice of contention are these:
1.	During the 20 seconds or so following the incident, and in circumstances in which he did not believe that he was injured, should the appellant have pursued the vehicle by crossing lanes on his motorcycle in the hope of observing and remembering its registration number?
2.	Should the appellant have returned to the scene of the incident on a subsequent evening at about the same time, in the hope of observing the same vehicle?
Framed in their legal context, the issue is whether the appellant, in the circumstances in which he was placed, should have done those things in order to make “proper inquiry and search”.
[34]	Depending on the resolution of those issues, the third form of inquiry and search pleaded by the respondent may arise for consideration.
Proper inquiry and search
[35]	In deciding whether a party has made “proper inquiry and search”, regard is to be had to the relevant circumstances in which the person, who later becomes a claimant, found himself or herself at a particular time.  As Dixon CJ (with whom Kitto, Taylor, Menzies and Windeyer JJ agreed) stated in relation to the phrase “due inquiry and search” you must look “at the circumstances in which he or she was placed.”  These include the person’s physical and mental state and his or her physical surroundings at a particular time.  One bears in mind that the question is one affecting that person’s rights to pursue a possible claim for compensable injuries.  The person’s apprehension of whether they have been injured is a relevant circumstance.
[36]	The phrase “due inquiry and search” and its modern counterpart “proper inquiry and search” raise the question of whether the person, who later becomes a claimant and those acting for the claimant with his or her authority, “have taken such measures to ascertain [the identity of the vehicle] as were reasonable in the circumstances of the case having regard to the situation of the claimant.”
[37]	That is not a general question in a particular proceeding.  The issue is focused by pleadings that define the respects in which a party like the Nominal Defendant alleges that a claimant failed to make “proper inquiry and search”.  Depending upon the circumstances of the case and the alleged failure to make “proper inquiry and search”, the issue is also time specific.  In this matter, the issues joined between the parties require the statutory phrase to be applied in respect of three alleged failures:
(a)	The first alleged failure was said to have occurred in the period of about 20 seconds after the incident and before the vehicles went their separate ways;
(b)	The second alleged failure was to not make observations near the scene of the incident on a subsequent evening; and
(c)	The third alleged failure was during an undefined period by not looking for the vehicle in nearby streets, which the respondent alleged should have occurred some time after the incident, and as late as when the appellant gave notice to the respondent.
[38]	A defendant does not have the onus to establish that the suggested inquiry or search would have identified the vehicle in question.  To engage the statutory presumption the plaintiff must make “proper inquiry and search” and prove it.
[39]	If the plaintiff does not prove that there has been due inquiry and search, then the plaintiff must show that such an inquiry and search would not have established the identity of the relevant vehicle.
[40]	The threshold issue, then, is whether there has been “proper inquiry and search” in the circumstances that prevailed at a certain time.
[41]	Depending on the circumstances of a particular case, no inquiry or search may be required.  This may be because in the circumstances in which the person was placed at the particular time, the suggested inquiry or search would not be reasonable due to the person’s physical condition or state of shock.  It may be because the suggested inquiry or search would not be likely to be productive.  “Proper inquiry and search” do not require searches to be conducted that are unlikely to be productive in establishing the identity of the vehicle.  Courts have not insisted on inquiries that are “purely ritualistic” and unlikely to be productive.  Expressed differently, steps that are not realistically likely to produce results are not required by “proper inquiry and search”.
[42]	Depending upon the circumstances in which the person is placed and the relevant time at which an inquiry or search might be undertaken, a claimant may be required to undertake inquiries that were not possible at or very shortly after the incident.  Proper inquiry is not limited to the period immediately following the incident.
[43]	The content of “due inquiry and search” in a particular case might be influenced by the “physical ability of an accident victim to seek information” or the victim’s mental state at the time.  The cases illustrate that a person who is in shock or who considers at the time that any injury he or she has suffered is trivial may not be required by “due inquiry and search” to record the registration of the vehicle or ascertain the identity of its driver during the time the unidentified vehicle is at the scene.  In other cases, the person’s appreciation that he or she has suffered an injury that may be compensable makes it reasonable to record a registration number that the person is able to observe and record.
[44]	An opportunity to record the details of the vehicle at fault is not determinative.  A person who is not aware that he or she has been injured or thinks that any injury might have been suffered was trivial is in a different circumstance to a person who knows of an injury and whose physical and mental state does not make it unreasonable to record the details of the vehicle at fault.
[45]	The nature of the opportunity to record the details of the vehicle at fault is a relevant circumstance.  For example, an injured pedestrian with the time to record the details of a nearby stationary vehicle or an injured driver in a stationary vehicle near another stationary vehicle has a different opportunity to that of a driver who would have to pursue a vehicle in order to obtain its registration details.
[46]	As in other areas of the law in which an assessment is made by a court of what is reasonable, having regard to the circumstances in which a person is placed at a certain time, hindsight bias must be avoided.
[47]	This observation applies to this case in at least two respects.  The first is the circumstances in which the appellant experienced some pain, but felt he had not been injured, reported as much shortly after the incident, but over time was found to have suffered a serious injury.  The second is to have regard to what a person in his shocked mental state would reasonably have appreciated in the seconds immediately after the incident about his physical state and any consequential need to identify the vehicle by pursuing it, rather than remaining in the left lane of Redland Bay Road, and returning as safely as he could to his nearby destination.  A later, calm assessment that pursuing the vehicle would have been a reasonable thing to do should not be substituted for what a reasonable course of action was for a person in a state of shock, with only seconds to decide what to do.
Should the appellant have pursued the vehicle immediately after the incident, rather than return to his depot?
[48]	The appellant challenges the primary judge’s finding that he knew he was injured at the relevant time.
[49]	The primary judge stated:
“Mr Ford knew, almost immediately upon passing over the piece of timber, that he had suffered some form of injury.  He had felt pain.  As Sackville AJA observed in Meakes: “While the respondent, like many people injured in accidents, may not have appreciated at once the full extent of his injuries, he was aware that he had been injured and that his injuries were caused by the actions of the driver of the vehicle that had struck him.”  Mr Ford was in the same position.
Mr Ford was cross-examined about his knowledge of the ability to seek compensation for injuries caused to him.  He accepted that he had seen advertisements to that effect.  Sackville AJA did not appear to regard evidence on that as essential.  He said:
‘[71]	In assessing the “due inquiry and search” that should have been undertaken in this case it is appropriate to treat the respondent as a reasonably informed member of the community.  Such a person could be expected to know that a victim injured in a motor vehicle accident, where another person is at fault, may be able to claim compensation from the person at fault.’”
[50]	The appellant accepted at the trial that he felt pain after his motorcycle passed over the timber, and said that immediately after the incident he did not believe that he was hurt.  He believed that he had not been hurt.  In response to a question about whether at that time he felt injured, he responded, “All I was thinking about was I’m not hurt.”
[51]	During cross-examination it was not put to him that he knew or believed he was injured when he felt pain shortly after riding over the timber.  The primary judge appears to have based his finding that immediately after the incident the appellant knew he was injured on the fact he had felt pain at that time.
[52]	The appellant contends that the primary judge failed to draw a distinction between suffering pain and suffering a compensable injury.  The primary judge is said to have incorrectly equated the pain that the appellant felt from being jolted with the suffering of an injury, and then assigned that error to the appellant’s mind, as if the appellant knew he was injured from the moment of the incident.
[53]	The appellant correctly draws a distinction between pain and injury.  He relies on a passage in Mason v Toowoomba City Council, while acknowledging that those statements were made in a different legal context.  In that case, this Court was concerned with a limitation point under the Limitation of Actions Act 1974 (Qld).  Keane JA (with whom Jerrard JA and White J agreed) stated:
“It is, in my respectful opinion, quite apparent from this passage that the respondent was endeavouring to make a distinction between the experience of symptoms of back pain and an appreciation that their source was in an actual injury of a structural kind to the spine as distinct from the aches and pains which attended heavy physical work.
The applicant contends that the distinction between, on the one hand, the back pain to which the respondent admitted and, on the other, that pain sourced upon “injury”, is specious.  I reject this contention.  This distinction between aches and pains and the existence of a structural reason for their occurrence is real, and indeed, commonplace.”
[54]	The issue in Mason was whether the respondent knew that certain heavy work he had done had caused injury to his back.  He gave evidence that he knew he had back pain, but did not know that he had injured his back before a certain date.  The legal issue concerned “means of knowledge” of a fact and included an inquiry into whether the person “does not know” the fact at that time.  The different legal context does not alter the distinction that the appellant draws between pain and injury, and which derives support from Mason.
[55]	One cannot necessarily equate the experience of pain with the existence of an injury, let alone with knowledge of injury.  For instance, participants in contact and non-contact sports, who are jolted or jarred, may feel pain without the pain being the result of an injury.
[56]	The possibility that pain is due to an injury, as distinct from physical contact or other force, does not mean that the person who experiences pain knows or believes at the time that he or she has been injured.
[57]	In this case, the pain that the appellant experienced shortly after he was jolted or jarred, as his motorcycle went over the block of timber, was consistent with the pain being of a kind that subsides without any noticeable or lasting injury.
[58]	The possibility that the pain was due to an injury does not mean that the appellant knew almost immediately after passing over the piece of timber that he had been injured.
[59]	The fact that he felt tender later that evening at the depot and that his ankle and back felt sore after he returned home later that evening does not mean that he felt sore much earlier, during the seconds immediately after the incident.  It is consistent with the onset of inflammation over time.
[60]	This is not a case like Meakes in which the claimant knew he had been injured, but did not appreciate the full extent of his injuries.  In this case, the evidence did not prove that the appellant knew immediately after the incident that he had been injured.
[61]	In the circumstances in which the appellant found himself immediately after the incident, the fact that he experienced pain from the jolt and the possibility that the pain may be due to a compensable injury, did not make it reasonable for him to pursue the unidentified vehicle.  At that time, the appellant was in a state of shock.  He could not believe that he had not been hurt and said that he was on “auto-pilot”.  In that state of mind, and not appreciating that he had been hurt, it was reasonable for him to continue on his way in the left lane at a safe speed in the direction of his depot.
[62]	The possibility that he could have pursued the vehicle by accelerating after it, crossing lanes at a busy time of day on a busy road on his low-powered motorcycle, and the possibility that he might have reached the vehicle at the place it was turning, and possibly pursued it further in the hope of observing and recording its number-plate, do not make it reasonable to have done any or all of those things.  There are a number of reasons to conclude that the appellant acted reasonably in continuing as he did on his way, in a state of shock.
[63]	First, the appellant did not know he had been injured.
[64]	Second, while the statute does not make knowledge of injury a precondition to “proper inquiry and search”, a person’s lack of knowledge that he or she has been injured is relevant to the issue of what is reasonable in the circumstances in which the person is placed.  Pain is not compensable without injury.  The possibility of being injured should not be equated with knowledge that one has been.
[65]	Third, the course of pursuing a driver whose conduct has caused pain, but no known injury, is not something that would readily occur to someone in a state of shock who, after recovering from a potentially deadly incident, is on “auto-pilot”.
[66]	Finally, even if that thought should reasonably have occurred to the appellant, it was reasonable to not take the risk of being injured in a pursuit, but to stay in the lane he was in and reach the safety of his nearby depot.  A reasonable person in the situation in which the appellant found himself immediately after the incident would tend to be risk-averse.  The person would not be inclined to pursue the vehicle across lanes on what the appellant described as a busy road where there is “always cars non-stop”.  After all, the appellant was not a police officer on a high-powered motorcycle who might reasonably have pursued a driver who had not secured a load.
[67]	In summary, I am not satisfied that during the period of about 20 seconds after the incident, “proper inquiry and search” required the appellant in the circumstances which he found himself to pursue the vehicle, rather than remain in the lane he was in.  At the time, the appellant did not know he had been injured.  It was reasonable to respond to the incident as he did.  “Proper inquiry and search” did not require him, in the circumstances in which he was placed during those 20 seconds, to pursue the vehicle and cross lanes on his small motorcycle in the hope of observing and remembering its registration number.
Should the appellant have returned to the scene of the incident on a subsequent evening at about the same time, in the hope of observing the same vehicle?
[68]	At trial, counsel for the respondent described its primary case as the one that I have just addressed.  An alternative case was that “proper inquiry and search” required the appellant to observe the unidentified vehicle “on a subsequent evening at about the same time as the alleged incident and at and about the said place”.
[69]	Its argument at trial about this alternative was that the unidentified vehicle was a work vehicle, appeared to belong to a concreter because of what it carried, and that a reasonable person would think the driver was likely to be on the way home from work.  The respondent argued at trial that the appellant ought to have conducted observations by looking for the vehicle from the day after the accident right up until the time he engaged solicitors, and that this would have involved him attending near the turning lane into Sevenoaks Street at a similar time to the time the incident occurred, to look to see if the vehicle returned on a subsequent occasion.  The argument was that the appellant should have made these observations while standing off the roadway of Redland Bay Road for some period of time, and should have gone on several occasions to that location to watch for a vehicle that resembled the vehicle he saw.
[70]	In submissions at trial, counsel for the appellant noted that the pleaded case was that such an observation should have been made “on a subsequent evening”, not on a number of evenings, but that even if it was suggested that it should have happened a few times, rather than one, such an exercise was unlikely to be productive.  Counsel for the appellant went so far as to argue that it would have been futile.
[71]	An unstated, or at least undeveloped, aspect of the respondent’s case at trial, is what the appellant should reasonably have done, in the event he observed a vehicle that resembled the unidentified vehicle.  Was he to return to his parked car and give chase?  Would he have been in a position to take a photo of the registration plate of any similar vehicle that presumably was travelling at a speed of between 70 and 80 kph along that busy arterial road, possibly in the fast lane?
[72]	As to the timing of any such observation, the appellant was not in a physical state to enable him to attend work the week after the incident.  It may not have been reasonable for him to stand for a prolonged period beside the road on any evening that week.  In any event, once he returned to work, he may have required permission from his employer to leave work early in order to take up a position at around 5 pm.  The respondent’s case was not clear as to how long he was expected to stand beside Redland Bay Road on an evening after the incident, and whether its case was that he should have stood in the emergency lane of such a busy road for a substantial time before it got dark, in the hope of observing a vehicle that resembled the vehicle in question.
[73]	The appellant’s main response at trial to this part of the respondent’s case was that it assumed, without a proper basis, that this was the unidentified vehicle’s regular route and that it took that route at about the same time each day.
[74]	The primary judge rejected the respondent’s alternative case on the ground that it would not have been reasonable for the respondent to have undertaken such inquiry and search in the absence of any evidence to suggest that the vehicle might pass that way again, and that such steps were unlikely to be productive.
[75]	I am not persuaded that the primary judge erred in reaching that conclusion.  In this Court the respondent again relies upon the fact that the unidentified vehicle was a work vehicle and upon the time of day the incident occurred.
[76]	The vehicle did not appear to be new.  It was white, with a tray that had equipment and “a little box” for power tools and other equipment.  The appellant described it as the type of equipment that concreters use.  The vehicle may have been a couple of metres longer than a normal ute but the appellant’s evidence clarified “it’s not a truck”.  It had no signage on its door.  The appellant thought that it may have been a vehicle used by a concreter because the dirty piece of timber that fell into his path was the kind that concreters use to box out concrete.  The vehicle clearly was a work vehicle but not an especially distinctive one, given its colour and lack of signage.
[77]	There is little, if anything, to prove that the unidentified vehicle was on its way home at the time of the incident.  It might have been in the north-bound lanes of Redland Bay Road at that time of day for any number of reasons.  The driver may have been on his way to the city, to quote on a job, or to attend a sporting or social event.
[78]	The fact that, after overtaking the appellant, the unidentified vehicle entered the left lane in front of him, assumes significance.  That manoeuvre is something that is unlikely to have been done if the driver intended within 20 seconds to enter the turning lane that opened to the right of the dual carriageway.  This would have required him to re-enter and cross the lane he had just been in before entering the turning lane at a time of day when the road was busy.
[79]	The appellant at trial pointed to the vehicle’s movements as suggestive of someone who was not entirely certain of where they were going, and did not use Redland Bay Road as a regular route at that time of day.  Alternatively, he submitted that the vehicle’s movement into the turning lane from the left lane may have been because the driver realised that something had fallen from the tray, and was intending to do a U-turn so as to be able to return and collect it.  This is a possibility but, as against that, there is the possibility that, having realised that the wood had fallen, the driver would have stopped in the emergency lane and walked back to where the timber remained.
[80]	The fact that the unidentified vehicle went into the left lane after overtaking the appellant, tends to suggest that its driver was intending to travel inbound, rather than turn right at Sevenoaks Street.  It suggests that before the incident the driver intended to continue in a north-west direction along Redland Bay Road to an unknown destination before the incident.
[81]	I shall assume that the appellant would have been able to obtain any necessary leave from work to be able to go to Redland Bay Road on a subsequent evening in order to make observations close to the scene of the incident, and at about the same time.  The contention of the respondent is that he should have observed large, white utility vehicles which passed him as he stood beside the road or, perhaps, sat in his car parked off the road.  If he had parked his vehicle in such a place and remained in it at the parking location depicted in one of the photos in evidence (rather than in the emergency stopping lane), then he would have had to observe any similar vehicle in his rear-view mirror or, having seen a similar vehicle pass him, given chase.  If, instead, he was expected to stand in a safe position on the footpath, then his task might have been to take a photograph of the registration plate of a vehicle that passed him at speed of between 70 and 80 kph in one or other of the lanes.  It is not apparent that he would have been successful in doing so.  But if he had done so, what would the registration details, if recorded in a photograph, have proven?  They would be the registration details of a vehicle or vehicles that resembled the vehicle from which the timber had fallen.
[82]	Simply observing a passing vehicle would not be enough to establish that the vehicle was the same as the one he had observed on 11 March 2019.  An undeveloped part of the respondent’s argument is that having made the observation of a vehicle that looked like the unidentified vehicle, something more could have been done by him or his agents, but that making the observation was a reasonable first step.
[83]	Did “proper inquiry and search” require the respondent to give chase in his car after every white, large utility vehicle that resembled the vehicle in question?  If it did and he was able to catch up with the vehicle, without exceeding the speed limit, what was he then to do?  Unlike an officer in a police vehicle, he would not have been in a position to attempt to require the vehicle to pull over.  He might have stopped the pursuit and written the registration details down.  However, that would simply be the registration details of a vehicle that resembled the relevant vehicle.  Further inquiries and questioning would need to follow and there is nothing to say that those inquiries were likely to be fruitful in producing an admission.
[84]	The respondent’s alternative case that it was reasonable for the appellant to have made observations on a subsequent evening at about the same time as the alleged incident, and at about the same place, assumes that the same vehicle would travel the same route at about the same time.  But this was not a vehicle like a school bus that might have been expected to travel according to a timetable and along the same route each afternoon.
[85]	The respondent’s case assumes that the driver of the vehicle had just finished work at 5.15 pm on 11 March, and that he would finish work and travel the same route at the same time each day.  There was insufficient evidence to suggest a likelihood that the driver had just finished work and did so at around the same time each day.  He might have finished work much earlier and been on that road on 11 March for any number of reasons.
[86]	It would not have been reasonable to expect the appellant to stay at his observation post for a long period starting at around 5 pm.  The respondent’s pleaded case was that the appellant should make observations on one subsequent occasion for an unstated length of time.  If he had done so, then there was a chance that on such an occasion he may have seen a white utility or small truck that resembled the vehicle in question.  It is possible that he may have seen a number of vehicles of such a description.  Work vehicles with white cabs that have longer trays than a normal utility are not uncommon.  Simply observing passing vehicles that resembled the vehicle in question would do little without further steps.  Those further steps are not pleaded and their likely outcome is speculative.
[87]	Any observation at about the same time and in the same vicinity may have produced, depending upon the appellant’s position and his ability to give chase, the registration details of a vehicle or a number of vehicles that resembled the vehicle in question.  Any such observations were unlikely to have been productive in identifying the relevant vehicle.  The vehicle, whether described as a large utility or a small truck, was not particularly distinctive.  It had a common colour, features that are shared by similar vehicles, no signage and no other distinguishing features.
[88]	The issue is not the likelihood of observing vehicles that resembled the unidentified vehicle.  The issue is the likelihood of observing and identifying a particular vehicle: the unidentified vehicle.  The respondent’s case that the suggested observation was likely to be productive in identifying the unidentified vehicle assumes that the vehicle was on its way home and travelled the same route at about the same time. These assumptions lack sufficient evidentiary support.
[89]	Another matter that has some relevance to the chance of the appellant observing the unidentified vehicle on one such evening is that he drove along Redland Bay Road going to and from work in the normal course of his working day, and did not observe the unidentified vehicle on those many journeys over subsequent months.
[90]	In all the circumstances, it seems most unlikely that on a subsequent evening the appellant would have observed and identified the same vehicle at about the same time by standing beside the road.  The suggested exercise was not required in order to make “proper inquiry and search”.
[91]	The respondent has not shown that the primary judge erred in concluding that the suggested step of returning to the site of the incident, in order to observe traffic and look for the vehicle, was unlikely to be productive.
Should the appellant have looked for the unidentified vehicle in the local road network?
[92]	The respondent pleaded that the appellant should have looked for the unidentified vehicle “at one of the premises on Seven Oaks [sic] Street and any road running off it, Cannondale Street and any road running off it, or any other road south of there and on the eastern side of Redland Bay Road prior to its intersection with Boundary Road.”
[93]	This part of its case assumes, among other things, that:
1.	The driver of the unidentified vehicle always intended to turn off Redland Bay Road into one of those streets or do a U-turn; and
2.	The driver was on his way home and lived on one of those streets.
[94]	One must arrive at an overall assessment of the two assumptions, taken together.  The first assumption has been discussed above, and is weakened by the fact that before the incident, and not far from the start of the turning lane, the vehicle had entered the left lane of Redland Bay Road.  This was something a fast-moving vehicle was unlikely to do if its driver intended to make such a turn to the right within the next 20 seconds.
[95]	The second assumption involves the supposition that the driver was on his way home to one of those streets.  That is only one of many competing possibilities.  They include that the utility was intending to perform a U-turn to return to the scene of the incident to collect the timber it had lost.  Another is that, having realised that he had negligently lost part of his load, the driver did not wish to be pursued by the motorcycle and reported to police, and therefore went into the fast lane with a view to doing a U-turn at the next available opportunity, hoping that the small motorcycle would not follow him.
[96]	If, however, these possibilities are disregarded, and the driver intended to enter Sevenoaks Street or do a U-turn, there were many reasons why he might do so.  The driver might have wanted to drop off a co-worker or other passenger, pick someone up, do a quote for work, visit a friend or collect some item.  The possibility that he was travelling to his own residence is one of many other possibilities.
[97]	If one assumes, however, for the purpose of argument that the driver resided in that neighbourhood, one must next consider the possibility that an attempt on some later date to observe the vehicle in that neighbourhood would have been productive.  It would not have been an attempt to look for the vehicle on the night in question, since the appellant understandably and reasonably went directly home.  The presumed date would have been when he was in a condition to go looking for the vehicle in those streets, having appreciated that he had suffered a compensable injury.
[98]	The present issue is whether an attempt to observe the unidentified vehicle in one of the streets nominated by the respondent was likely to be unproductive.
[99]	The relevant inquiry is not whether on such a search the appellant might see a large, white utility that generally resembled the unidentified vehicle, but the likelihood that he would have observed that vehicle.
[100]	The properties in that area include large lots.  The appellant did not think there were any under 6000 sq m along the eastern side of Redland Bay Road because it is still a rural setting that has never been allowed to be sub-divided, and that some were as large as 10-acre lots.  The area includes bushland.  The area around Sevenoaks Street was mainly residential, but had a high proportion of home-based businesses.  He thought that the properties along Sevenoaks Street were all blocks of 6000 sq m or more.  Many have long driveways and one cannot see places where vehicles and other plant are parked on many of the properties.
[101]	The primary judge conducted a view, and during submissions observed that having driven down Sevenoaks Street it was reasonably clear that there were areas or parcels of land where it would be possible to have a truck that was not visible from the road.  Counsel for the respondent agreed and also agreed that a limit on any available search was the inability to trespass onto properties.  Therefore, one is not concerned with a common suburban neighbourhood with relatively small lots where a resident’s vehicle is parked on a driveway, in an open carport, or on a road where it is easily seen.
[102]	The respondent correctly submits that driving along those streets looking for the unidentified vehicle would have been a low burden on the appellant.  That low burden should be taken into account, along with the possibility that the suggested step was likely to be productive, in deciding what was reasonable in the circumstances and, therefore, what “proper inquiry and search” required.
[103]	One matter affecting an assessment of likelihood is that the vehicle in question was not a fixture, and might not be expected to be present, let alone visible, at the assumed residence of its driver for substantial parts of the day.
[104]	The likelihood issue is also informed by the searches and inquiries that the respondent’s private investigator undertook in late 2019.  He conducted searches in the relevant streets and made inquiries at residential premises at different hours of the day and on different days.  Those inquiries and searches were not productive of any lead, let alone identification of the unidentified vehicle.
[105]	The searches and inquiries that the respondent’s private investigator did, and the suggested search without inquiries that the respondent contends the appellant should have undertaken, were not about a damaged vehicle or a vehicle that was particularly distinctive in its colour or make.  The investigator’s inquiries were not into some unusual activity that residents may have seen.  Residents were not being asked by him to recall an accident they had seen or some suspicious activity.
[106]	The inquiry was into a vehicle, quite possibly a concreter’s truck, that matched the description that the appellant had given in response to specific questions from the respondent.  He described the vehicle as a “light-coloured commercial concreter’s work truck” that had gates fitted around the sides of its tray.  He reported that prior to the incident he noticed things like tools, wood, a wheelbarrow, and work equipment that appeared to be concreter’s equipment in the tray of the truck.
[107]	The private investigator’s searches and inquiries in late 2019 did not lead to any such vehicle being identified in the neighbourhood or any information that such a vehicle had belonged to a resident in the neighbourhood in recent months.  Of course, it is possible that between 11 March 2019 and the dates of the investigator’s searches and inquiries, the assumed occupier of a house had moved out of the neighbourhood.  However, the lack of information obtained by the respondent’s investigator by search and inquiry weakens the assumption that the driver was a long-term resident of that neighbourhood.  It seems unlikely that if the appellant or his agents had undertaken a search for the vehicle some months before the respondent’s investigator did, that their chance of identifying the vehicle would have been very different.
[108]	The key issue is whether looking for the unidentified vehicle in the nominated streets was unlikely to be productive.  One must have regard to the support or lack of support for the assumptions that I have identified and the lack of evidence from subsequent searches and inquiries that the driver of the unidentified vehicle was a resident of that neighbourhood.
[109]	The respondent’s theory is that the driver was on his way home, always intended to turn where the appellant last saw the vehicle in the turning lane, and that the driver lived in that area.  If one makes those assumptions, another factor concerns the likelihood that looking for the vehicle by driving along the streets in that neighbourhood would result in a sighting of the unidentified vehicle.
[110]	Competing possibilities or a low probability that the driver was a resident in one of those streets do not mean that the suggested search should not have been undertaken.  However, when account is taken of the assumptions and the various possibilities are considered, the suggested step of looking for the vehicle along those streets on some subsequent occasion or occasions, was unlikely to be productive.  The possibility that the vehicle belonged to a resident in that neighbourhood and that the appellant (or his agents) would observe it by looking for it in that neighbourhood was slight.  One reason is that the likelihood depends upon the correctness of the first assumption that have identified, namely, that the driver of the vehicle always intended to turn off Redland Bay Road or do a U-turn.
[111]	The relevant issue is not whether searches by the appellant might have located a concreter’s vehicle or another work vehicle that had similar equipment and features to the one that he had seen.  The issue is the likelihood of his observations being productive in identifying the unidentified vehicle.  I conclude that they were very unlikely to do so.  As with the previous suggested step of attempting to observe the unidentified vehicle as it drove along Redland Bay Road on a later occasion, the step of looking for the vehicle by driving along the nominated roads was unlikely to be productive.
[112]	The 1975 decision of the High Court in Harrison v Nominal Defendant has been described as having “injected an element of enhanced realism in what could reasonably be expected of an injured person (or that person’s agents).”  Searches and inquiries that are not realistically likely to produce results are not a requirement of “proper inquiry and search”.  “Proper inquiry and search” do not require a person to undertake steps that have only a faint possibility of being productive.
[113]	The suggested search of the local road network on a subsequent occasion or occasions was unlikely to be productive.  As a result, and as with the respondent’s alternative of observing at the scene of the incident on a subsequent evening, “proper inquiry and search” did not require those steps to be carried out.
Conclusion
[114]	The appellant has established that “proper inquiry and search” did not require him to undertake the steps suggested by the respondent.
[115]	I would order:
1.	Appeal allowed.
2.	The orders dated 31 August 2022 be set aside.
3.	The appellant’s claim be allowed, with judgment entered for the appellant against the respondent for the agreed quantum of his claim, together with interest to be assessed, if not agreed.
4.	The respondent pay the appellant’s costs of and incidental to proceeding BS317/21.
5.	The respondent pay the appellant’s costs of the appeal.
[116]	Submissions may need to be made at an appropriate time as to whether the costs at first instance and on appeal should be on the indemnity basis, as sought in the Notice of Appeal.