Typically, if you are injured in a car accident, you can bring a claim with the CTP Insurer of the ‘at fault’ vehicle. Your annual registration includes an amount for CTP Insurance.
But what if you are unable to identify who caused the accident, or the vehicle which did is not registered with a CTP Insurer?
Insurance coverage – except for very serious injuries for which the National Injury Insurance Scheme applies – entails understanding who caused the accident and your personal injuries. But this may seem difficult if:
- the vehicle flees the scene;
- the driver at fault’s vehicle cannot be identified; or
- the vehicle is unregistered.
In the event that any of these situations occur, at first it may seem to you there is no CTP insurer for the ‘at fault’ vehicle and therefore, no CTP insurer to pay damages to the injured person.
The Nominal Defendant
In any of these circumstances, there is a possibility of bringing a claim against the Nominal Defendant which acts as the CTP Insurer in cases when an unidentified, unregistered or uninsured motor vehicle is at fault in an accident.
As part of the insurance scheme to ensure coverage for persons injured on the roads, since its inception in 1961, the Nominal Defendant has functioned as a statutory entity including under the Motor Accident Insurance Act 1994 (‘MAIA’) to compensate victims injured in these types of situations.
Stricter time limits
In a “traditional” CTP claim, you typically have nine months from the date of the motor vehicle accident, or, if symptoms do not manifest right away, from the time the symptoms manifest for the first time, or 1 month from the date the injured person first seeks legal advice about the possibility of filing a claim.
However, for persons over 18, to start a claim against the Nominal Defendant for an unidentified vehicle, the injured party must give written notice under the MAIA to the Nominal Defendant within three months after the incident. A claim for personal injury against the Nominal Defendant cannot be brought by the injured party if it is not made within this limited window of time, without a reasonable excuse for delay. And the claim must in any event be started by delivering a Notice of Accident Claim form to the Nominal Defendant which fully complies with the MAIA within nine months of the accident or the first appearance of symptoms or the claim is barred. This cannot be extended.
As a result, it is crucial to be aware of the stricter time constraints with initiating a claim against the Nominal Defendant for an unidentified vehicle. It is recommended that you seek legal advice to ensure your time limits are protected.
‘Proper Inquiry and Search’
To establish a claim against the Nominal Defendant for an unidentified vehicle, an injured party must demonstrate that they have taken all reasonable steps to identify the at fault vehicle, a process known as the ‘Proper Inquiry and Search’.
Section 31(2) of MAIA, provides that it ‘it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle’.
In Ford v Nominal Defendant, the Plaintiff was a motorcyclist when a piece of wood fell from an unidentified truck’s tray and onto the road in front of him. The Plaintiff tried to avoid the timber, but was unsuccessful, and his back wheel ran over it.
Once his back wheel ran over the wood, he saw the truck for 20 to 30 seconds, but failed to notice or remember the truck’s licence plate. The plaintiff later requested CCTV footage from local businesses in the area where the accident had occurred, but no CCTV evidence was available. Later still, the claimant reported his injury to his doctor and then to a lawyer, who then delivered a claim under the MAIA on his behalf.
At trial, the single Judge found that Mr Ford’s claim had to fail because he could not show he had engaged in proper inquiry and search. The trial judge found it decisive that Mr Ford:
- could have, without great difficulty, observed and remembered the number-plate of the other vehicle;
- was aware, immediately after his motorcycle passed over the piece of timber, that he had suffered pain; and
- could reasonably have been expected to obtain the relevant details at the scene.
This was eventually reversed on appeal to a panel of three judges, but an ounce of prevention is better than a pound of cure.
If you find yourself in a similar situation, even if you do not notice any injuries straight away, some helpful steps you should take are:
- Immediately notify the local police station of the incident;
- Look for any witnesses nearby;
- Immediately contact nearby householders, businesses, and your local Council to ascertain if there is any CCTV footage available in that area;
- Door knock in the area local to the accident to see if anyone saw or has film of the accident which might identify the at-fault vehicle;
- Print out flyers and letter drop in the area shortly after the accident for any witnesses, dash cam footage or CCTV footage; and
- Advertise in your local paper for any witnesses, dash cam footage or CCTV footage.
Turner Freeman Lawyers can assist you in these circumstance. We can ensure that your claim is submitted within the stricter time frame applicable for these claims and that ‘proper inquiry and search’ has been made in order to locate the CTP Insurer of the at fault vehicle or to establish a claim against the Nominal Defendant. Time is of the essence. If Proper Inquiry and Search is not established, the Nominal Defendant is not liable – because the at-fault vehicle cannot be shown to be unidentified.
Get in touch with us
At Turner Freeman, we have specialist personal injury lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our expert personal injury lawyers are placed to deal with matters throughout QLD, including meeting up at any one of our offices in Brisbane, Gold Coast, Sunshine Coast, North Lakes, Logan and Ipswich. Contact us today on 13 43 63.