Splashed across the news are constant stories of youth-dominated crimes, where a significant number of motor vehicles are being stolen and delinquents are causing havoc on Queensland roads. There has been an increase in the number of accidents happening where the vehicle at fault is unable to be identified or is unregistered, and people left with catastrophic injuries are unsure where to turn for compensation. Attwood Marshall Lawyers Compensation Law Senior Associate, Tina Davis, explains what an injured person needs to know if they are involved in these type of accidents.
Introduction
There have been consistent news headlines this year following stolen vehicle incidents where innocent third parties have been injured as a result. Here’s just a few!
Motorcyclist dies after being struck by allegedly stolen car in Wynnum
Opposition calls on State Government to toughen youth justice laws after fatal crash
Two police in cars rammed in youth crime crackdown in Cairns
Sunshine Beach luxury car crash: Six teenagers arrested by police overnight
Teens charged over wild Police chase across Gold Coast
With the situation not getting any better, the question is posed, who is held liable if you are involved in a motor vehicle accident and the other driver flees the scene and the vehicle cannot be identified and/or the vehicle is unregistered and not covered by the usual Compulsory Third Party (CTP) insurance that we pay when we register our vehicles or renew our ‘rego’. This CTP scheme in Queensland is set up under the Motor Accident Insurance Act 1994. There are similar schemes in all states and territories of Australia. Although here are differences in procedures and claim thresholds among the jurisdictions, the CTP scheme is designed to provide insurance for all vehicles that are at fault and cause injury to people, whether that be pedestrians or other drivers and passengers of vehicles (including any passengers in the vehicle at fault).
It doesn’t appear on our rego bills these days, but there used to be a small amount allocated for the ‘Nominal Defendant’. Most people would not even know there is such a thing, let alone understand the important part it plays in ensuring people injured by unidentified or unregistered vehicles are covered by the CTP insurance scheme! The Nominal Defendant is a role taken on by the CTP insurers when there is an accident involving an unidentified or unregistered vehicle. For example, if a car coming towards you at night with their high beam on unexpectedly swerves over to your side of the road and forces you off the road and you are injured, you can bring a claim against the Nominal Defendant if you are unable to locate or identify the car. Likewise, if there is a ‘hit and run’ incident involving a pedestrian the injured person can sue the Nominal Defendant.
In the financial year 2018/2019, it was reported that more than 16,000 cars, motorcycles and trucks were stolen across Queensland. Unfortunately, the situation has only gotten worse!
Car insurers have reported that so far this year they have already seen a 20 per cent increase in car theft insurance claims in Queensland. Some parts of the state have even recorded close to a 90 per cent increase in car thefts!
Car thefts are a significant problem for motorists, but even more of a problem to the innocent parties who fall victim to the reckless and negligent driving that follows when a vehicle is stolen.
Most commonly are accidents when someone has been injured in a hit and run accident, or they’ve been involved in an accident where the driver doesn’t have CTP insurance due to the vehicle being unregistered.
If you are an injured person who is in this predicament, you can still lodge a claim for compensation. This is done by making a claim against the Nominal Defendant, who acts as the CTP insurer for vehicles that are unidentified or uninsured. In QLD, there is a claim form that needs to be completed and served within 9 months of the accident date! The claim form can be completed online.
CTP Insurance vs the Nominal Defendant
All motor vehicles in Queensland must be registered, no matter whether someone is purchasing a new car that has never been registered, buying a pre-owned unregistered vehicle, or moving between states and/or territories. When a vehicle is registered, a component of that registration includes CTP insurance. CTP insurance provides cover for anyone who may be injured, or killed, in a motor vehicle accident caused by the covered vehicle. It does not cover property damage. To make a CTP claim, you must be able to identify the vehicle that caused the accident and the registration details.
If an injured person is unable to identify the “at-fault” vehicle that caused the accident, a claim can be pursued against the Nominal Defendant.
There is a levy included in motor vehicle registration that covers the ‘Nominal Defendant’. This covers the costs of claims involving an unidentified or unregistered vehicle. It also covers claims if a CTP insurer becomes insolvent.
In order to make a claim against the Nominal Defendant an injured person must prove that they have done everything in their power to establish the identity of the motor vehicle concerned.
This is referred to as “Proper Inquiry and Search”. But what this means can confuse people.
What does “Proper Inquiry and Search” mean?
According to Section 31(2) of the Motor Accident Insurance Act Qld (MAIA), it is to be presumed that a motor vehicle cannot be identified if it is established that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.
Helpful steps that can be undertaken include:
- Notifying the police at the earliest opportunity and making further enquiries with the police;
- Canvassing the accident scene and conducting letter drops in the local area within a short period of time after the collision;
- Advertising in the local paper;
- Following up with any potential witnesses;
- Following up with anyone who may have dashcam footage;
- Investigating whether there might be any Traffic CCTV footage available.
It is important that an injured party try to avail themselves of the opportunity to record the registration plate of the at-fault vehicle at the time of the collision.
In the case of Ford v Nominal Defendant [2022] QSC 179, the plaintiff was riding his motorbike when a piece of timber slid off the tray of an unidentified truck which then fell onto the road in front of him. The plaintiff tried to steer away from the timber however the back wheel of his motorcycle ran over it causing the motorbike to bunny hop. The plaintiff did not feel any significant injury as a result of the collision at the time of the incident, however, he did admit to feeling pain and demonstrated an injury at a later date.
After seeking help from a specialist to treat the injury months later, the plaintiff sought advice from a compensation lawyer in order to make a claim against the Nominal Defendant for compensation.
Following consultation with the lawyer, the plaintiff visited local businesses in the nearby area where the incident had taken place and requested any CCTV footage from the day in question. Unfortunately, no CCTV footage was available.
Unable to identify the vehicle, the plaintiff lodged his claim against the Nominal Defendant.
The Nominal Defendant questioned whether the motorbike rider had indeed completed his requirements of proper inquiry and search following the incident.
It was reported that after the plaintiff ran over the timber, he had the truck in his view for 20-30 seconds, and he admitted that he could have positioned himself to view the registration of the truck if he had chosen to in that moment.
In this case, the focus was on whether or not the plaintiff had the capacity at the time of the incident to record the registration number of the vehicle at fault. Although the plaintiff stated there was moderate traffic on the road during the time, he did not say that it would have prevented him from getting in a position to see the number plate. The plaintiff admitted to knowing almost immediately that he had sustained an injury after running over the timber, but still failed to do everything in his power to obtain the number plate of the at-fault vehicle.
It was found that the plaintiff could have, without great difficulty, observed and remembered the number plate of the other vehicle. In failing to attempt to obtain the number-plate details, he failed to engage in any proper inquiry and search and his case was dismissed.
Strict time limits when claiming against the Nominal Defendant – 9 months in QLD!
After being involved in an accident, it is easy to be complacent and hope that your injuries will improve. However, this isn’t always the case, and putting off a claim for compensation may be detrimental.
It is critical for anyone involved in a motor vehicle accident to do everything possible to identify the at-fault vehicle. If you are unable to identify the vehicle and need to lodge a claim against the Nominal Defendant there are strict time limits which apply.
Notice must be given to the Nominal Defendant within 3 months after the date of the motor vehicle accident, however it may be given up to9 months from the date of the accident if accompanied by an explanation for the delay.
If notice is not given to the Nominal Defendant within 9 months after the date of the motor vehicle accident, the claim against the Nominal Defendant is statute barred, thereby preventing any action for damages for personal injury arising from the accident.
Nominal Defendant’s Right to Recover as a Debt – A warning to all motor vehicle owners!
In the absence of rego stickers donning our windscreens, it is easy to forget that vehicle registration might be due. Also, with the shift to electronic communication, it is common to miss seeing the renewal notice.
However, if you drive an unregistered vehicle and have an accident that is your fault, and causes injury to another person, the Nominal Defendant has the right to recover as a debt the amount paid in settlement of any personal injuries claim from the owner or driver (or both) of the uninsured motor vehicle. This is in addition, to other penalties such as a potential fine or imprisonment.
It is the responsibility of all vehicle owners to ensure their vehicle registration is kept up to date.
You can check your registration status anytime online – click here to visit the Queensland government website.
For NSW motor vehicles – check your registration here.
Compensation Claims
Claims against the Nominal Defendant will proceed in the same way as a normal motor vehicle accident claim as against an insured vehicle with a CTP insurer. Generally, compensation for injuries include claims for general damages (pain and suffering), past and future loss of earnings, past and future loss of superannuation entitlements, past and future care and assistance, past and future treatment. If you have suffered the loss of a loved one in a motor vehicle accident due to the negligence of another driver, and you were financially dependent on that person, you may be entitled to loss of financial support or services which would have otherwise been provided to you, had they not been involved in the accident. Further, if you have developed a ‘psychiatric injury’ and have experienced ‘loss and damage’, for example, you are unable to work because of your injury, then you may be entitled to bring a nervous shock claim.
Attwood Marshall Lawyers – helping injured motorists claim compensation for the treatment and support they need
If you have been involved in a motor vehicle accident, it is important to get trusted legal advice from an experienced compensation lawyer as soon as possible. Strict time limitations apply in motor vehicle accident claims and although you may underestimate your injuries at the time of the incident, if you wait too long to make a claim, you may lose your right to entitlements altogether.
At Attwood Marshall Lawyers, our experienced compensation lawyers, lead by Partner and Law Society Accredited Specialist in Compensation Law, Jeremy Roche, can help you understand your rights after sustaining an injury in a motor vehicle accident, and explain the steps to take to get your claim underway.
Contact our Compensation Law Department on 1800 621 071 for a free claim review.
Our team are available for appointments at any of our conveniently located offices at Coolangatta, Robina Town Centre, Kingscliff, Brisbane, Sydney and Melbourne.
Read more:
Injured in a car accident in Queensland? Making a CTP claim
Motor Vehicle Accidents – compensation claims and understanding your rights as a road user
