Hit and Run – Can I still make a compensation claim if the other vehicle was never identified?

Have you ever known somebody who has been in a ‘hit-and-run’, in which they are unable to locate or identify the other vehicle in a Motor Vehicle Accident? Perhaps this has happened to you?

Whether it happens intentionally or accidentally, a person leaving the scene of an accident is not unheard of. But what can one do when such a situation arises? Is there still a way to pay for past and future medical treatment? Is there a way of claiming damages for injury after a hit and run? In short, yes there is.

In New South Wales, there are rules which apply to precisely this scenario. The NSW Motor Accidents Compensation Act 1999 states that the Motor Accidents Authority (MAA) is to be substituted in the place of an unregistered or unidentifiable vehicle. This party which faces the claim, is referred to as the Nominal Defendant. This process was created so that there is a way for victims of Motor Vehicle Accidents to claim compensation, even if no perpetrator is found.

The Nominal Defendant fund ensures that people can still receive money for the treatment they need when such an event occurs. This fund was created by law as mentioned above, and stipulates that all NSW CTP insurers must contribute to said fund. This forms a pool of money which can be accessed in certain circumstances.

It is useful to know that under this scheme, you can still claim compensation for both pedestrian and vehicle accidents.

Under NSW law, all vehicles must be registered and insured in order to drive on the roads legally. Vehicles may not be registered until they have proof of valid insurance; which can be either Compulsory Third Party (CTP) insurance, or fully comprehensive insurance. However, there will always be some cars on the road which are uninsured. Whether that is intentional on the driver’s part or not is a matter for criminal courts to decide. However, the fact is that car accidents can leave people with permanent and life-changing injuries. Treatment for these injuries can be hugely expensive, and can require ongoing management over a long time period.

When an accident occurs in which the offending vehicle is unregistered, the claim will be forwarded to the Nominal Insurer. In order for this to happen however, the claimant must prove that at the time of the accident that the vehicle was unregistered. This can usually be achieved easily by checking with the Police, but requires that a number plate is identified from the vehicle.

When the offending vehicle is completely unidentifiable, obviously no details can be provided. In order for a claim to be referred to the Nominal Defendant, the claimant (or the claimant’s legal representation) must undertake what is referred to as “due search and enquiry”. This basically means that one must exhaust all reasonable means of finding the offending vehicle before a claim can be lodged. As is the case with almost all language in legislation, this definition of due search and enquiry is open to interpretation. For example, the requirements for due search and enquiry will differ between accidents occurring on a busy street in the CBD compared with a highway road in the country.

When the requirements for this condition of “due search and enquiry” are met, the Nominal Defendant will act as the defendant in the compensation claim. It is an important distinction to make that the acceptance of adequate search and enquiry does not indicate admission of liability from the insurer; and the claim will continue as normal.

Like all personal injury claims, there are processes and protocol which need to be followed. The important message to take from this article is that when an accident involves an unidentifiable vehicle, commonly referred to as a hit and run, there is still a way for the victim to claim compensation and receive the treatment they need.