BOUQUET -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2026] WADC 37

[2026] WADC 37 [2026] WADC 37 (MJW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : BOUQUET -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2026] WADC 37 CORAM : ZEMPILAS DCJ HEARD : 15 APRIL 2026 DELIVERED : 12 MAY 2026 FILE NO/S : CIV 3234 of 2023 BETWEEN : KEVIN GERARD BOUQUET Plaintiff AND INSURANCE COMMISSION OF WESTERN AUSTRALIA Defendant Catchwords: Negligence - Motor vehicle accident - Unidentified vehicle - Whether plaintiff made due search and inquiry to identify vehicle - Whether failure to do so result of mistake, inadvertence or other reasonable cause - Proof of claim in absence of other evidence - Contributory negligence Legislation: Motor Vehicle (Third Party Insurance) Act 1943 (WA) -- 1 of 17 -- [2026] WADC 37 [2026] WADC 37 (MJW) Page 2 Result: Leave refused Representation: Counsel: Plaintiff : Mr J N Trigg Defendant : Mr J R Clyne Solicitors: Plaintiff : Trewin Norman & Co Defendant : Hall & Wilcox (Perth) Case(s) referred to in decision(s): Bald v Hesford [2024] WADC 87 Blum v Motor Vehicle Insurance Trust [1966] WAR 121 Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 Morrissey v Nigoscik (Unreported, WADC, Library No D970055, 27 February 1997) Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 Pennington v Norris (1956) 96 CLR 10 Westlake v Motor Vehicle Insurance Trust [1960] WAR 83 Zengin v Insurance Commission of Western Australia [2020] VSC 237 -- 2 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 3 ZEMPILAS DCJ: Introduction 1 The plaintiff, Mr Kevin Bouquet alleges that he sustained injuries in a motor vehicle accident on 28 January 2021 and claims damages against the defendant, the Insurance Commission of WA (Commission) on the basis that an unidentified driver's negligence caused the accident and his injuries. 2 The parties have agreed quantum and the matter proceeded to trial to determine liability only. 3 Mr Bouquet says that that the unidentified driver was negligent in that they: (a) failed to keep any lookout or any proper lookout; (b) failed to give way to Mr Bouquet; (c) failed to take heed of the presence of Mr Bouquet; and/or (d) changed lanes when it was unsafe to do so. 4 The Commission says that Mr Bouquet has not proved how the alleged accident occurred or that it was caused by the negligence of the unidentified driver. 5 The Commission says that even if the accident occurred as alleged by Mr Bouquet, it was caused or contributed to by Mr Bouquet's manner of driving, in that Mr Bouquet: (a) drove at an excessive speed in the circumstances; (b) drove after consuming methylamphetamine; and (c) drove without proper care and attention and exposed himself to the risk that drivers of other vehicles in the vicinity would not reasonably have been aware of his presence on the roadway. 6 The Commission also says Mr Bouquet failed to comply with the statutory requirements necessary to form the basis of his claim, where the vehicle was unidentified and Mr Bouquet did not take all practical steps to ascertain the identity of the other driver or the vehicle after the incident. -- 3 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 4 7 The issues to be determined by me are these: 1. Does Mr Bouquet have a statutory right to make a claim against the Commission where the other driver is unidentified? 2. Was the accident caused by the negligence of the unidentified driver? 3. Did any conduct of Mr Bouquet contribute to the accident? Background 8 At approximately 5 pm on 28 January 2021, Mr Bouquet was riding his Suzuki motorcycle east along the Graham Farmer Freeway (Freeway) in Burswood. The eastbound Freeway at that section consists of three lanes. Mr Bouquet was travelling in the left-hand lane and had just gone through the tunnel. 9 The speed limit in that location is 80 km per hour. 10 While travelling past an additional feeder lane on the left-hand side, which provided an entry point to the Freeway from Goodwood Parade, Mr Bouquet moved left into that feeder lane in order to overtake a four-wheel drive (4WD) vehicle travelling in front of him. 11 Mr Bouquet moved or merged back into the left-hand lane in front of the 4WD vehicle. 12 Mr Bouquet says it was at this point the unidentified driver in a black Holden Commodore moved into the left-hand lane from one of the lanes to the right. 13 Mr Bouquet says that, in order to avoid colliding with the Holden Commodore, he dropped his motorcycle to the ground and slid across the road. As a result, he sustained torn ligaments to his left thumb, a dislocated right big toe and a soft tissue injury to his neck/shoulder. 14 He was able to get up and walk a short distance to a toilet block and called a friend to come and collect his motorcycle, which was damaged. He subsequently called an ambulance via '000' when he realised he had injured his foot. -- 4 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 5 15 Ambulance officers attended and took Mr Bouquet to Royal Perth Hospital (RPH) where he was treated in the Emergency Department and discharged on 30 January 2021 after treatment. 16 Mr Bouquet completed the Commission's online crash report form relating to the incident on 1 February 2021. 17 He first consulted a lawyer in May 2021. Law Claim in respect of an unidentified vehicle 18 The statutory basis for making a claim against the Commission where a driver involved in an incident is unidentified falls under s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Act): Where the driver of a motor vehicle has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle but the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that driver may obtain by action against the Commission the judgment which, in the circumstances, he could have recovered against the driver of the vehicle: Provided that as soon as practicable after the happening of the accident (a) he made due search and inquiry to ascertain the identity of the vehicle; and (b) he gave to the Commission notice in writing of the claim and a short statement of the grounds thereof. 19 Section 29A of the Act provides that a court may grant leave for a plaintiff to proceed in a claim to recover damages pursuant to s 7(3) where the plaintiff's failure to make due search and inquiry: was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure … -- 5 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 6 20 The meaning of the words 'due search and inquiry' was discussed in Nominal Defendant v Meakes:1 In assessing the 'due enquiry 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. Where the victim is a pedestrian, a reasonably informed member of the community could be expected to appreciate that it is important to obtain the registration number of the vehicle and, if possible, the details of the driver in order to pursue any claim for compensation. 21 What a reasonable member of the community could be expected to know and do must be understood by reference to the facts of the particular case and informed by the purpose of the requirement: see Zengin v Insurance Commission of Western Australia.2 22 If the court can identify enquiries which would not have been burdensome to make, but were reasonable steps which, in the circumstances of the case, were required to be undertaken to ensure that due search and inquiry had been made to identify the vehicle involved in that incident, and the plaintiff has not made such inquiries, the court may not be satisfied on the balance of probabilities that the requirements of s 7(3) of the Act have been met.3 23 As to the legislative purpose of the requirements of s 7(3):4 The capacity to investigate a claim for damages under the Act is imperative to the proper management of claims by the Commission. Common lines of enquiry pursued by the Commission include investigating whether the accident the subject of claim actually occurred; whether the Commission might have a statutory right of recovery against an indemnified driver in relation to any damages flowing from the accident; whether any injuries were sustained by the claimant as a result of the accident; and what medical treatment a claimant may require in order to minimise any loss associated with the accident. 24 The court's approach to the exercise of the discretion in s 29A of the Act should be upon consideration of the whole of the circumstances of each case, including the nature of the mistake or inadvertence or 1 Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380, 397 [71] (Meakes). 2 Zengin v Insurance Commission of Western Australia [2020] VSC 237 [100] (Zengin). 3 Zengin [90]. 4 Zengin [109]. -- 6 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 7 other reasonable cause and the extent and degree of any likely prejudice: see Blum v Motor Vehicle Insurance Trust.5 25 In Blum, the Honourable Justice Jackson said:6 In case of doubt, s 29A should be applied benevolently in favour of an injured person so as to accord with its evident legislative intent. … 26 As to the meaning of the words mistake and inadvertence in s 29A, in the decision of Morrissey v Nigoscik,7 her Honour Judge Yeats said:8 Mistake involves an error following advertence to the subject matter, whereas inadvertence means the opposite of deliberate thought or action. Mere forgetfulness is not mistake but it may be inadvertence. Equally clearly ignorance is not mistake but it might be inadvertence. Indeed it seems quite clear that ignorance of the law may fall within the word 'inadvertence'... In s 29A, both words are governed by the phrase 'any other reasonable cause', so that the inadvertence must be reasonably based and in itself provide a reasonable explanation for what has followed. Negligence and contributory negligence 27 The principles that apply to negligence between two motorists are governed by the common law and the Civil Liability Act 2002 (WA) (the CLA). The CLA does not supplant the common law principles to determine whether a duty of care exists.9 28 A driver owes another driver a duty to take reasonable care to avoid a reasonably foreseeable risk: see Bald v Hesford.10 29 Mr Bouquet bears the onus of establishing a breach of duty and must also prove on the balance of probabilities the matters required in s 5B(1) of the CLA. 30 Section 5B(1) sets out: (1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless - 5 Blum v Motor Vehicle Insurance Trust [1966] WAR 121 (Blum). 6 Blum (127). 7 Morrissey v Nigoscik (Unreported, WADC, Library No D970055, 27 February 1997) (Yeats DCJ) (Morrissey). 8 Morrissey [15]. 9 Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [77] (Buss JA). 10 Bald v Hesford [2024] WADC 87 [21] (Troy DCJ) (Bald). -- 7 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 8 (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. 31 Where a claim is based on the alleged negligence of an unknown driver in an unidentified vehicle and the proof of negligence depends largely or wholly on the evidence of the plaintiff, the evidence must be scrutinised with particular care.11 32 Section 5K of the CLA sets out the principles in relation to contributory negligence that are applicable to a claim to which the CLA applies. 33 Section 5K(1) of the CLA requires a determination as to whether or not Mr Bouquet failed to take precautions against a risk of harm. Mr Bouquet is required to meet the standard of a reasonable person in his position, and matters are to be determined on the basis of what he knew or ought to have known at the time of the accident. The test is an objective one. 34 Section 5B of the CLA provides that the risk of harm in s 5K(1) is to be assessed against the risk of harm to Mr Bouquet rather than the risk of harm to others.12 35 The determination of apportionment between a plaintiff and a defendant is a discretionary judgement and involves a comparison of the relative culpability (meaning the degree of departure from the standard of care of the reasonable man) of Mr Bouquet and the Commission.13 Evidence 36 The evidence as to the occurrence of the accident came entirely from Mr Bouquet at the hearing on 15 April 2026. 37 Mr Bouquet said he had held a Western Australian motor driver's licence for nearly 30 years.14 11 Westlake v Motor Vehicle Insurance Trust [1960] WAR 83 (applied in Blum (123) [39]). 12 Bald [285]. 13 Pennington v Norris (1956) 96 CLR 10. 14 ts 25. -- 8 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 9 38 On that day, he was driving from his home address in Osborne Park to a client's home in Success Hill. 39 On the Freeway, there was a bit of traffic that he described as peak hour traffic:15 … there was cars on both sides of the lanes. There was cars everywhere. I was in stop-start a little bit. 40 He said he went around the 4WD by indicating left and went into the left feeder lane and around it. Mr Bouquet said he did not go across an unbroken white line to move left when overtaking the 4WD.16 41 Mr Bouquet said he did not consider it to be a risky or illegal manoeuvre.17 42 He identified the locations where this occurred to be just after Optus Stadium, before the entry to Great Eastern Highway and marked them by noting numbers 1 and 2 on a map.18 43 Mr Bouquet said he moved back into the left lane before the feeder lane and the left lane merged and there was a 'clear run in front' of him.19 44 Mr Bouquet said, 'there's no way' the driver of the Holden Commodore could not have seen him.20 Mr Bouquet said the black Holden Commodore veered towards him, causing him to take evasive action to avoid colliding with it. 45 Mr Bouquet said he was unable to otherwise avoid colliding with the Holden Commodore because there was a trailer with an electronic sign attached to it in the left-hand emergency lane, preventing him from moving to the left. 46 The 4WD behind him was able to stop or slow safely and no other cars were screeching or braking. 47 Mr Bouquet said he thought the speed limit was 80 km per hour and that he was definitely going under the speed limit.21 15 ts 28, ts 32. 16 ts 26. 17 ts 27. 18 Exhibit 2. 19 ts 10. 20 ts 10. 21 ts 13. -- 9 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 10 48 During the recorded '000' call Mr Bouquet said he had been travelling at 40 km per hour.22 49 He agreed he told the triage nurse at RPH that he was travelling at 40 km per hour when he came off the motorcycle23 but agreed he must have been travelling faster than that when he overtook the 4WD. In evidence, Mr Bouquet said it was definitely 10 or 20 km per hour under the speed limit because traffic was slow.24 50 In cross-examination, it was put to Mr Bouquet that he told a specialist, Dr Martyn Flahive, that he was travelling at 100 km per hour. When asked if that was true, Mr Bouquet said, 'I don't think so'.25 51 Mr Bouquet said it was sometime later that he saw Dr Flahive and the doctor:26 … wanted a speed limit and I couldn't recall how fast I'd been going at the time. All I knew was that I was doing under the speed limit - and at the time I thought that the speed limit was 100 kilometres per hour. … 52 Mr Bouquet then said 'At the time of the accident, I knew the speed limit was 80 kilometres per hour …'.27 53 In re-examination, Mr Bouquet said that he 'just assumed that it was 100 kilometres an hour that the speed limit was'.28 54 When asked, in relation to Dr Flahive, 'So you did tell him that it was 100 kilometres an hour. Do you recall telling him that?' he answered, 'I think so, yeah.'29 55 Mr Bouquet was asked; 'Do you remember how you were feeling when you got onto the motorcycle that evening?' He responded, 'Yeah, I was fine'. He was then asked, 'Were you impeded in any way?' and answered, 'No'.30 22 Exhibit 4. 23 Exhibit 7. 24 ts 25. 25 ts 24. 26 ts 24. 27 ts 24. 28 ts 33. 29 ts 33. 30 ts 13. -- 10 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 11 56 When asked about whether he had consumed any substances in the 72 hours prior to the incident, Mr Bouquet said he could not remember.31 57 Mr Bouquet was shown the St John Ambulance Patient Care Record,32 which stated 'admits to regular meth use. Last injected this AM' and was asked, 'So did you admit, as they say, to regular meth use and last injected this AM – this morning?---Yes'.33 58 Mr Bouquet was shown the Adult Triage Nursing Assessment,34 which stated in presenting history 'meth mane', which was suggested by counsel to mean methylamphetamine in the morning, and was asked, '… Can you recall telling anyone this when you arrived at the hospital? That you had consumed methamphetamine that morning?---I can't remember'. When asked why it might have been noted in the records, he said 'I think it's because they were asking - because they were going to give me medication, and they were asking if … I'd used … drugs.'35 59 Mr Bouquet was shown the RPH Secondary Assessment Notes,36 which included the note 'HX of IVDU meth use this morning', which was suggested by counsel to mean history of intravenous drug use, and was asked:37 And so you would agree with that based on what you've told us and what you've told the ambulance paramedics and what you told the triage nurse in terms of your methamphetamine use that morning?---Yes, your Honour. 60 Mr Bouquet said:38 When I said I was on meth in the AM, I was in shock from just having been in the accident. And so … I was, like, in a lot of pain, and I wanted them to give … me pain relief. … But … because I'd had some on the weekend, I … just said, 'Yeah' ... 'I've had some in the AM'. … 61 Mr Bouquet said it was 'more than likely' on the weekend prior to the accident was the last time he had used methylamphetamine. 31 ts 14. 32 Exhibit 6. 33 ts 15. 34 Exhibit 7. 35 ts 16. 36 Exhibit 8. 37 ts 17. 38 ts 22. -- 11 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 12 62 In re-examination Mr Bouquet said he did not have a recollection of when he used methylamphetamine before the accident.39 63 As to what he did after the incident, Mr Bouquet said he saw a lawyer a few months later and completed the Commission's crash report form.40 64 When asked what steps he had taken to try and find out the identity of the Commodore he said:41 I told the police. And what was I supposed to do? That black Commodore had taken off before I had got it up off the ground, so I didn't even have a chance to get its number plate or anything like that. … I assumed that there would have been video cameras all over me everywhere on the Graham Farmer Freeway. … And I assumed that they would just get the police to be able to just go back on that video. 65 When asked if he took any steps to ascertain if there was CCTV by contacting Main Roads or police he said, 'No, I didn't'.42 66 In respect to telling the police, he was asked what he did and answered, 'I told the police. I was in the hospital and they breathalysed me'.43 67 In correspondence between the Commission's solicitor and Main Roads dated 7 September 2023, Main Roads indicated that any footage captured of that part of the Freeway is only stored for 31 days and is automatically deleted unless extracted manually by way of a request having been received.44 68 As no such request had been made within 31 days, by the time of the correspondence on 7 September 2023, there was no longer any CCTV footage in existence capable of providing information as to the identity of the vehicle or as to what may have occurred. 39 ts 33. 40 Exhibit 5. 41 ts 31. 42 ts 31. 43 ts 32 (Note the recording differs from the transcript. I have used the words and syntax audible in the recording). 44 Exhibit 16. -- 12 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 13 Analysis and conclusions Does Mr Bouquet have a statutory right to make a claim pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA)? 69 Section 7(3) of the Act requires Mr Bouquet to prove that as soon as practicable after the happening of the accident, he made due search and inquiry to ascertain the identity of the vehicle. 70 I am of the view it is clear from the wording of s 7(3) that giving the Commission notice in writing of the claim and a short statement of the grounds is not sufficient to constitute due search and inquiry, nor is it a substitute for or the equivalent of due search and inquiry. This is reflected by the use of the word 'and' in respect of s 7(3)(a) and s 7(3)(b), requiring due search and inquiry in addition to such a notice. So, on a plain reading of the section, such a notice in and of itself cannot constitute due search and inquiry. 71 The obligation imposed on Mr Bouquet by s 7(3) is a positive one and requires some form of positive act by Mr Bouquet directed at ascertaining the identity of the other vehicle. 72 The evidence of Mr Bouquet was that he 'told the police'.45 Mr Bouquet did not give evidence of what he told police. Mr Bouquet made no further contact with the police after that conversation. Mr Bouquet did not present evidence that he made a police report or formal complaint to police about the incident. 73 The evidence of Mr Bouquet is that he assumed there would be some CCTV of the location, and assumed an unspecified entity, 'they',46 would obtain it. It is clear from the evidence of Mr Bouquet that he himself did not contact Main Roads or police in relation to any CCTV or take any other steps to obtain any CCTV. 74 Mr Bouquet was discharged from RPH on 30 January 2021. He had time and opportunity to complete the online crash report form on 1 February 2021. 75 There is no evidence from Mr Bouquet that he took any other steps to ascertain the identity of the other vehicle said to be a black Holden Commodore. 45 ts 32. 46 ts 31. -- 13 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 14 76 Instead, Mr Bouquet's evidence is that he assumed the existence of CCTV and that another entity would pursue it, which, in my view, does not demonstrate that Mr Bouquet took any steps to identify the vehicle said by Mr Bouquet to be at fault. 77 It was neither burdensome nor unreasonable for Mr Bouquet to make a complaint or a formal report to police about the incident. 78 To the extent Mr Bouquet 'told the police' something when in the hospital, there is no evidence before me to demonstrate the level of detail or information he gave police in that conversation and he did not make any follow up inquiry to police about what police had done as a result of what had been said to them. 79 Further, it was not burdensome or unreasonable for Mr Bouquet to make a request or enquiry of Main Roads as to the existence of or access to CCTV of the relevant part of the Freeway. 80 Any or all such enquiries would have been relevantly directed at trying to ascertain the identity of the other vehicle. 81 In all of the circumstances, I am not satisfied that Mr Bouquet made due search and inquiry to ascertain the identity of the vehicle within the meaning of s 7(3) of the Act. 82 I now turn to the provisions of s 29A of the Act and the question of leave to proceed where Mr Bouquet has failed to comply with the requirements of s 7(3). 83 Pursuant to s 29A of the Act, I am satisfied the Commission is materially prejudiced by this failure, because it has been deprived of the ability to identify, and potentially locate, the other vehicle. 84 I must, therefore, proceed to consider whether I am satisfied Mr Bouquet's failure to comply with s 7(3) was occasioned by mistake, inadvertence or any other reasonable cause. 85 The wording of s 29A makes clear that the qualification reasonable must also apply to any mistake or inadvertence on the part of Mr Bouquet in his failure to comply with s 7(3). 86 Mr Bouquet did not give evidence as to a mistake on his part which contributed to his failure to make due search and inquiry. -- 14 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 15 87 Rather, his failure to make due search and inquiry related to assumptions he made about a number of things, including the effect of what he 'told the police' at the hospital and that another entity would take steps to inquire into the incident including by accessing CCTV. 88 Mr Bouquet did not give evidence as to the logical or factual basis for these assumptions. 89 Therefore, in determining whether such assumptions amount to reasonable inadvertence, I have to draw an inference from the evidence as a whole. 90 The only evidence before me from which I could draw such an inference is that Mr Bouquet told the police something at the hospital when they breathalysed him and that he later lodged the online crash form with the Commission. 91 However, I must also take into account the evidence that Mr Bouquet was a man who had held a driver's licence in Western Australia for 30 years. He said he had been involved in an accident, which he says was caused by the negligent driving of another driver on a major road, while surrounded by other cars and in which he suffered injuries. Mr Bouquet also knew to lodge an online report promptly with the Commission. 92 In all the circumstances of this case, I am not persuaded that it was reasonable for Mr Bouquet to make the assumptions that he did. 93 In my view, it was not reasonable that Mr Bouquet would not turn his mind to other avenues in which the identity of the black Holden Commodore could be investigated, by him or others. It was not reasonable for Mr Bouquet to make no further contact with police or other authorities. It was not reasonable for a plaintiff in that position to do nothing further. 94 Mr Bouquet has therefore not satisfied me that his failure to make due search and inquiry for the identity of other vehicle was the result of reasonable mistake or inadvertence. Accordingly, I am not persuaded to relieve the plaintiff of the effect of that failure and leave to proceed with his claim against the Commission pursuant to s 29A of the Act is not granted. -- 15 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 16 Was the accident caused by the negligence of the unidentified driver? 95 While I do not need to determine this issue, I will indicate my findings in any event. 96 Mr Bouquet is the only witness as to occurrence of the alleged accident and he bears the onus of proving both how it occurred and that it was the result of the negligence of the other driver. 97 While his account of the alleged accident itself was not contradicted by other evidence, there are issues with credibility, reliability and accuracy of Mr Bouquet. 98 First, his accounts as to his speed prior to the alleged accident were inconsistent. 99 In evidence he stated his speed was 10 to 20 km per hour below the speed limit of 80 km per hour. However, soon after the accident in the '000' call he described his speed as having been 40 km per hour. To triage hospital staff at RPH it was described as 40 km per hour. To Dr Flahive, it was at the speed limit as he said he then believed it to be; 100 km per hour. 100 These are wide variations in his accounts across time and were not adequately explained by Mr Bouquet in evidence at the hearing. 101 Second, Mr Bouquet's evidence about his use of illicit substances the day of or prior to the incident was difficult to reconcile. He gave evidence that he now has no recollection of when he last used methylamphetamine, but more than likely it was several days before the accident, on the preceding weekend. 102 However, Mr Bouquet told ambulance and hospital staff immediately after the incident that he had used methylamphetamine that morning. This was in the context of his belief they were asking him questions and seeking information because they were going to give him prescribed pain medication. Mr Bouquet's explanation as to why he then told treating nurses and paramedics that he had used methylamphetamine that morning, rather than several days earlier, was entirely implausible. 103 Collectively, these material inconsistencies in Mr Bouquet's account do cause me to doubt the credibility, reliability and accuracy of his description of the alleged accident itself. -- 16 of 17 -- [2026] WADC 37 ZEMPILAS DCJ [2026] WADC 37 (MJW) Page 17 104 Just because there is no other version before the court, does not mean I must accept Mr Bouquet's version. Because his version is the only version, I must scrutinise it with great care. 105 The ultimate question is this: Can I be satisfied on the evidence before me it is more probable than not that the alleged accident occurred in the way Mr Bouquet described and as a result of the other driver's negligence? The answer to that question is no, and I am not satisfied that Mr Bouquet has established liability on the part of the Commission in respect of his claim in any event. Did any conduct of Mr Bouquet contribute to the accident? 106 Given my findings in relation to the above issues, I do not need to address this issue. 107 In summary, I do not grant leave for the plaintiff to make his claim against the Commission and, in any event, the plaintiff has not proved his claim. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. LC Associate to Judge Zempilas 12 MAY 2026 -- 17 of 17 --