Car accidents are one of the leading causes of injury in the country. Australian Institute of Health and Welfare figures from 2012 revealed that transport-related incidents accounted for 14 per cent of hospitalisations in 2008-09. Only accidental falls led to more injuries over the researched period.
Road users involved in car accidents in New South Wales are often eligible to make claims under the Motor Accidents Compensation Act 1999. However, what can injured parties do when the individual who caused the incident is unknown? For example, this situation could arise in hit and runs.
No-win, no-fee guarantees enable individuals to pursue claims without having to cover the upfront costs.
Fortunately, claimants can still pursue claims even when mystery drivers are at fault. The Act allows for cases against the Nominal Defendant, which is the name given to the entity that receives claims in the absence of an identified defendant, or when the defendant does not possess insurance.
Until September 1 2015, the Motor Accidents Authority acted as the Nominal Defendant in NSW. The State Insurance Regulatory Authority has since assumed these duties, although the responsibilities remain largely the same.
What are my chances of success?
Claimants hoping to receive compensation against unknown road users must first prove they have made adequate attempts to track down the individuals responsible for the incidents. The Motor Accidents Compensation Act states the courts require “due inquiry and search” into the person’s identify before a claim can proceed.
The claimant can confirm the completion of an appropriate inquiry and search through the oral evidence or affidavit of the individual who carried out the process. Once this has been established, the courts can rule the Nominal Defendant liable as if it were the original owner or driver.
In other words, the plaintiff’s case should have the same chances of success against the Nominal Defendant as against the unidentified driver. However, the claimant must still gather sufficient evidence and elicit expert testimony to have the best chance of receiving compensation.
No-win, no-fee guarantees enable individuals to pursue claims without having to cover the upfront costs that typically accompany a compensation case. These may include court filing fees, witness reports and barristers’ advice. The accident compensation lawyeroffering the no-win, no-fee service absorbs these expenses instead, with the final costs taken from any eventual settlement.
The Nominal Defendant may be found liable in lieu of an identifiable individual.
Recent compensation example
The Court of Appeal at the NSW Supreme Court recently upheld a decision against the Nominal Defendant following a 2012 accident. The plaintiff, Jereme Smith, was injured in a collision while he was a passenger in an acquaintance’s vehicle.
According to Mr Smith and driver Ryan Harris, an unidentified black car cut in front of their vehicle, causing Mr Harris to lose control and crash into a third motorist. The driver of the black vehicle was never discovered and Mr Smith’s case was instead brought against the Nominal Defendant and Mr Harris, as first and second defendant respectively.
The original judge ruled the two defendants as liable for the accident, apportioning responsibility for the crash at 60 per cent for the Nominal Defendant and 40 per cent for Mr Harris. The decision resulted in a $425,366 payout for Mr Smith.
While the Nominal Defendant launched an appeal to overturn the first judge’s ruling, the Court of Appeal judges disagreed with the appellant’s claim and reinforced the original decision. The Nominal Defendant was also required to pay the appeal costs of Mr Smith.
Anyone involved in a serious motor accident where someone else is at fault should contact PK Simpson as soon as possible. This is because there are time limits for claimants looking to pursue compensation, making it crucial to avoid delays.