Fault is at the centre of most compensation claims. When it comes to motor vehicle accident compensation, the law requires the existence of an at-fault party in order to award compensation.
Problems arise when the offending vehicle leaves the scene of an accident, before they can be identified or fails to even stop after they have caused an accident like a ‘hit and run’. In other cases, an unregistered vehicle without Compulsory Third Party (CTP) insurance may be the cause of an accident. Without CTP insurance the victim would not be covered and therefore not eligible to compensation.
So if the at-fault party can not be identified or doesn’t have CTP insurance does it mean the victim, potentially suffering life-altering injuries, can not make a compensation claim? You wouldn’t be wrong to think that this situation seems unjust. The law recognises that such an outcome would be unfair to the injured party and as such allows victims in these situations to make a Nominal Defendant Claim.
Who is the Nominal Defendant?
In most states and territories across Australia, vehicles are required to have CTP insurance. In the event of a motor vehicle accident this insurance covers any compensation claims that may arise. This means motor vehicle accident victims are awarded compensation by the CTP insurer of the offending vehicle. As mentioned above, this system doesn’t work if a vehicle involved in an accident can not be identified or is on the road illegally without CTP insurance.
Legislation across most Australian jurisdictions provide recourse for these victims through the Nominal Defendant. In NSW, the Nominal Defendant is covered in the Motor Accidents Compensation Act. The Nominal Defendant is a government body who acts as the CTP insurer. In NSW it is the Motor Accidents Authority and is funded by NSW CTP insurers who contribute to The Nominal Defendant’s Fund.
What is a Nominal Defendant Claim?
When a claim for compensation is made through the Nominal Defendant this is a Nominal Defendant Claim.
In NSW, there are two circumstances in which a Nominal Defendant claim can be made. The first occurs when a motor vehicle accident involves an unregistered vehicle without CTP insurance. In this case the claimant will need to prove the vehicle that caused the accident was unregistered. This circumstance is the easier of the two to prove. With the license plate details the claimant only needs to check with NSW police or the NSW Claims Advisory Service to prove the vehicle was unregistered.
A Nominal Defendant Claim can also be made when a vehicle causing an accident and injury is unable to be identified. Outside of criminal circumstances, in this case the injured party must prove they have undertaken ‘due enquiry and search’ to find the offending vehicle. This means the injured party should take reasonable steps to find the offending party such as placing an advertisement in the paper, talking with witnesses and checking with police. The Nominal Defendant will consider the individual circumstances of the accident, such as time and place, when deciding if reasonable ‘due enquiry and search’ was undertaken.
It is important to note that this is the process for nominal defendant claims in NSW. The process varies across states. For example, in Queensland the Nominal Defendant investigates the accident and tries to find the offending vehicle and driver.
Making a Nominal Defendant Claim
An injured person will need to lodge their claim to the Nominal Defendant within six months of the accident. Relevant forms including a Personal Injury Claim Form and Medical Certificate should be submitted to the Nominal Defendant. Such claim forms can be detailed and complex and it is important they are filled out correctly. An experienced compensation lawyer can assist you to fill out relevant forms and lodge them.
Once the claim is lodged, in cases where the vehicle is unidentified, the claimant will need to show that the identity of the vehicle cannot be established after due search and enquiry. This can be a complicated task and the assistance of a compensation lawyer will be valuable. They will know the necessary steps that should be taken and can advise a claimant on the best course of action.
Have you been injured in a motor vehicle accident and it’s the fault of an unregistered or unidentified vehicle? Taylor & Scott Lawyers have years of experience in motor vehicle accident compensation claims and can help you make a Nominal Defendant Claim.
It’s easy to arrange an obligation free case assessment where an experienced compensation lawyer will assess your case. If you have a case, Taylor & Scott Lawyers will often offer their services on a no win/ no fee basis so you can access the compensation you deserve.
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