You are hit by a car that doesn’t stop. Unsurprisingly you didn’t note the car’s registration number as you were flying through the air, let alone getting a good look at who was driving.
In such circumstances is anyone responsible to pay you monetary compensation for your injuries and loss? The answer is yes. Enter ‘The Nominal Defendant’.
There is no insurer actually called ‘the Nominal Defendant’. What happens is that your compensation claim is lodged with the NSW Motor Accidents Authority on a Personal Injury Claim Form, in the same way that you would if you knew who knocked you down. The Authority then randomly relays your claim to one of the CTP insurers, as if that insurer was on risk.
Your fight for compensation will then be against that insurer, who will investigate the circumstances of the accident. The insurer will usually try to establish that whoever may have been driving the unidentified car was not to blame for what happened. It is of course in their interests to do so, because if the unidentified car was to blame, the insurer allocated to your case will have to pay you compensation. You bear the onus of proving that the driver caused the accident or was at least partly to blame.
In normal cases it’s generally the driver’s word against that of the person making the claim. However in your case there is no driver to contradict your version of events. This puts the insurer behind the 8-ball.
However there is a technical legal requirement which could be fatal to your claim if you don’t comply with it, even if you can prove the accident was someone else’s fault. You are required by law to take all reasonable and realistic steps to identify the driver. This is referred to an ‘due enquiry and search’
This can a big ask, especially if you’ve wound up in hospital for weeks or months and haven’t been able to do anything, let alone return to the scene of the accident and ‘knock on doors’ and stick signs on street posts.
What normally happens is that your lawyer, when you are finally well enough to instruct one, will hopefully obtain whatever information has been gathered by the investigating police officers and rely on the fact that if the police can’t identify the driver and the car how can you be expected to do so?
However a competent and industrious lawyer will take out extra insurance by publishing notices in various newspapers calling for witnesses to the accident to come forward. In reality there’s fat chance of that happening. In my 40 years of experience, no one has ever contacted me after reading such a public notice in a newspaper.
What if the accident happened in the dead of night and outside residential areas, where the only witnesses might be an inquisitive kangaroo standing beside the road? In such cases the law does not expect you to look for witnesses because any such search would be utterly futile.
Also the law does not require you to keep searching for witnesses when the trail has obviously gone cold. This is especially so where there was no actual collision between you and the unidentified car, for example if you managed to avoid a collision by swerving or jumping out of the way of a car coming straight at you, or several months have elapsed before you even knew that you might be able to make a claim.
I expect that most non-lawyers have never heard of The Nominal Defendant. However, if you have been injured in a hit and run accident, a claim against The Nominal Defendant could get you the compensation that you need to get your life back on track.
Written by Tom Goudkamp
Tom Goudkamp is Managing Director of Stacks Goudkamp. He has over 40 years of experience of successfully bringing compensation claims for people injured in motor vehicle accidents, including pedestrians injured in hit and run accidents. He is also a CARS Assessor and co-author of the ‘New South Wales Personal Injury Law Manual’.