All posts by Ashley

How to Conduct the “Nommo Inquisition”

WHAT HAPPENS WHEN YOU GET HIT BY A CAR

...AND YOUR BIKE CAMERA DOESN'T CAPTURE THE REGISTRATION NUMBER?

A lot of cyclists feel helpless after a hit and run because they are unable to identify the vehicle involved...

EMILY BILLIAU //  Australia's Leading Lawyer for Cyclists

Perhaps the driver fled the scene of the accident or the rego plate is too blurry to read on your camera footage.

Your bike is trashed, you're in pain, and you're all on your own.

So who do you turn to?

WHO ARE THE TWO KEY PLAYERS?

...YOU MUST TALK TO THEM A.S.A.P!

Get the police involved early

If you are unable to identify the vehicle involved, it important that you act you promptly.

You should take steps to urgently report the incident to police.

Critically though, if police are unable to identify the vehicle that caused the accident, you may still be able to pursue civil action.

Your claim would proceed against the state insurer, the Nominal Defendant.

Who is The Nominal Defendant?

The Nominal Defendant is a statutory corporation established under the Motor Accident Insurance Act 1994 (MAIA).

It serves as an insurer of last resort.

One of it’s purpose is to provide access to compensation to persons injured as a result of the negligent acts of drivers of unidentified motor vehicles.

Unfortunately, claims against the Nominal Defendant can involve quite complex legal issues.

The legislative and procedural requirements that apply to bringing a claim are strict.

To get the police to take action, you have to take action. Getting the police involved early will help you later on.  Make sure you note the officers and the station that you spoke with.  If you need a hand with what to say then hit the big orange button below.

JUMPING THROUGH THE HOOPS

...HERE'S WHAT YOU NEED TO DO....

To succeed in a claim against the Nominal Defendant, you will need to be able to establish that you have undertaken due search and enquiry to identify the vehicle involved.

EMILY BIILIAU //  Australia's leading Lawyer for Cyclists

What is the “Nommo Inquisition”?

Like all legal terms “due search and enquiry” can be vague. 

Lawyers refer to claims against the Nominal Defendent colloquially as a “Nommo claim”.

...and if your claim is to succeed you need to fully exhaust all avenues YOURSELF to identify the vehicle. 

You need to carry out the “Nommo Inquisition”.

In general terms, “due search and enquiry” means:

  • everything that you can reasonably do to
  • attempt to locate and
  • find the identity of the vehicle
  • which caused the accident.

And the best advice is to overcook your efforts….leave nothing to chance. 

And if you adopt this “nothing left to chance’ mindset you will turn “due search and inquiry’ into ‘The Nommo Inquistion’.

Because the phrase ‘due search and inquiry’ is vague the effort required to satisfy the ‘Nommo’ can vary dramatically from case to case.

Depending on….

  • the place,
  • time and
  • nature of the accident

….due search and enquiry may be found sufficient in one matter, and insufficient in another.

The first step in deciding whether to locate the unidentified driver is to ask yourself  "Am I doing the right thing?" Take the poll below to see what others think.

THERE IS A RIGHT WAY...

...TO SHOW YOU CARE...

In the matter of R –v- Nominal Defendant, a truck was driving on the Pacific Highway, not far from a particular Truck Stop, at approximately 6.00pm in the evening, when one of the wheels of the B-Double truck detached from the truck, striking the barrier and colliding with Mr R’s vehicle.

The truck did not notice that the wheel had become detached and did not stop. They were also unaware that an incident had occurred.

In an attempt to identify the truck the claimant did the following:

1. Placed an advertisement in a local newspaper;

2. Put up Truck Stop Notices, within a five kilometre radius of the incident site.

In such circumstances, it was accepted, given the

  • time,
  • locality and
  • nature of the incident

that the due search and enquiry was reasonable and the Nominal Defendant accepted that the vehicle was unidentified.

Community notice boards can be an integral part of your 'inquisition' campaign'.  They need to be local to where the incident was.  Putting up a notice on a public board in Sweden probably won't help your case if the accident happened in Birdsville.

THE WRONG WAY...

...AND HOW TO CORRECT IT...

In the matter of L –v- Nominal Defendant, an incident occurred on a local suburban Street in Ashfield New South Wales, where

  • a pedestrian was
  • struck by a vehicle
  • at approximately 4.00pm and
  • the vehicle did not stop to render assistance or provide details.

In this matter, newspaper advertisements were undertaken and the Nominal Defendant identified that:

“such enquiry was not reasonable and determined that “due search and enquiry” had not been fulfilled”

Why?

It was suggested that in such a circumstance, given the time and place of incident, a door knock and postal drop would have rendered further assistance.

It is noted that such enquiries were then undertaken by the claimant, resulting in no witnesses being found.

Accordingly, upon forwarding further information to the Nominal Defendant, it was ultimately determined that “due search and enquiry” had been fulfilled.

It is clear from these two examples, that “due search and enquiry” has no one meaning.

Door knocking doesn't have to be hard, nor should it be intimidating. Most people will be happy to help you if they saw something.  People want to live in safe neighborhoods so will generally do anything they can to help a victim of a hit and run that happened in their street.  If you need a plan or a script of what to ask for click on the big orange button below.

THE ULTIMATE INQUISITION CHECKLIST

...THE QUICK AND EASY WAY TO ENSURE YOU HAVE DONE ENOUGH!

Here is a list of questions you should ask yourself if you are trying to locate an unidentified vehicle:
  • check
    Have I placed advertisements in local and state newspapers?
  • check
    Have I placed advertisements on social media (targeting only the streets I need)?
  • check
    Have I door-knocked-the-block?
  • check
    Have I done a letter box drop in the area calling for witnesses?
  • check
    Have I placed a notice on a public noticeboard calling for witnesses?
  • check
    Have I retrieved red-light-camera footage from the council if the accident happened on such an intersection?
  • check
    Have I retrieved CCTV footage from surrounding businesses?
  • check
    Have I taken witness statements from onlookers or passers by?
  • check
    Have I examined my bike camera footage to reveal other cars that were close by that I could get as witnesses?
  • check
    Have I taken  partial plate information to the police for them to scan and search?
  • check
    Have I engaged a private investigator to help me?
  • check
    Have I engaged  an engineer to prove the involvement of a vehicle in the incident (if the vehicle fled the scene and cannot be identified)?
  • check
    Have I obtained medical evidence to confirm that they injuries were likely sustained in the way described (the involvement of a motor vehicle)?

Whilst this list seems overwhelming, a slip-shod approach to finding the offending driver could cost you tens or even hundreds of thousands of dollars in lost compensation.

EMILY BILLIAU //  Australia's Leading Lawyer for Cyclists

The right way is to leave no stone unturned and follow the checklist above.

The wrong way is to leave the investigation in the hands of others and/or do a half-way job.

It is simply not worth the risk.

The 3 Step Powerplay (That Gets the Police to Investigate Cyclist’s Complaints)

"

"Fortunately for cyclists you can force a police investigation into the actions of dangerous drivers.  Just follow a simple civil law process."


Emily Billiau - Principal, CycleLaw

We can all agree that a 'near miss' on the roads can be terrifying.  


Imagine the cyclist's level of frustration when they take he video footage to the local police station only to hear one of these excuses:-

  • “There is insufficient evidence to warrant further investigation”;
  • “There is not any public interest in issuing an infringement notice to the driver”;
  • “An investigation isn’t warranted given the expense involved”.

3 points that trigger an investigation

Traffic incidents and crashes may be reported to Qld Police in a number of circumstances. For example:-

  • Pursuant to s. 92(1) of the Transport Operations (Road Use Management) Act and s. 287(3) of the Transport Operations (Road Use Management–Road Rules) Regulation.   This piece of legislation sets out the duties and liabilities of drivers involved in road incidents;


  • Pursuant to s. 34 the Motor Accident Insurance Act.  
  1. a cyclist has an obligation to report an incident (for example a 'near-miss') to police in which 
  2. they have sustained some kind of anxiety or trauma (an injury)  and 
  3. intend to make a civil claim against the offending driver.


The cyclist does not have to report the incident if points 2 and 3 above are not applicable.

But let's say that points 2 and 3 are on the table.  

Then......

Officers receiving reports of traffic incidents involving  psychological trauma are to ensure that the incident is recorded and investigated in accordance with their Operational Procedures Manual.

“It is a fact of law that police are obliged to investigate certain types of road incidents.


You cannot be turned away.


You do not have to accept their reasoning or excuses.


This is the law.


Remember our laws apply to law enforcers too.


let's all work together to make the roads safer.

​​​​Emily Billiau - Principal, CycleLaw

Reporting an incident to a police should not be an intimidating experience.  You should not feel as if you are the offender.  If you are worried you won't be taken seriously run your story past me (by clicking on the orange button below) before you go to the police station.


What steps do cyclists need to take?

So, if you are  traumatised by an incident and intend to make a claim against the driver, you are required by law to ensure a police officer is notified of the incident.

For best results we suggest  giving the investigating officer a completed ‘Report of traffic incident to police’ form. Click here for the form.  

Once you have the form it's a pretty straight forward process:

1. fill out the form

2. take it to the police station

3. speak to the officer in charge of the station who will

4. assign the notice/form to an investigating officer 

the investigating officer should provide you with an occurrence number which you can use to follow up your claim against the driver

Emily Billiau

Principal, Cyclelaw

What steps do the police need to take?

Officers directed to investigate an incident such as a 'near miss' that causes trauma should:

  1. obtain statements from any witnesses to the incident (most likely yourself and the driver). We have a template witness statement that you can use - get it here.
  2. record the details of the incident in their official police notebook and any additional details which may assist the investigation of the incident, such as details of:
  • all persons and vehicles (bikes) directly involved in the incident and any other person who may be able to assist in the subsequent investigation; (such as other cyclists)
  • the damage to the vehicle(s) (including bikes) involved in the incident and including information of the general condition of the vehicle(s) (bikes) and the position of the hand brake and gear lever;
  • other scene evidence such as traffic lights, signs, road markings, skid marks, etc., by sketch plan and video evidence.

2 Things Cyclists Need To Get Police To Take Action Against Dangerous Drivers

You need evidence.  And the two big ones will be video evidence and your own statement.  But it's not 'what' evidence you need that counts as much as it's the 'how' it is presented.  Read on...right to the end.

What do the police need?

To successfully prosecute a driver in Court, it is necessary for Qld Police to have evidence to support the case.

The police prosecutor must be able to prove the case.

What are the four things the police will consider?

Well, they don't need you to take your evidence to the police in Scotland, but no doubt sometimes you probably feel as if that might get you a better result.

So here's what they do need.....

If you say one thing and the driver of the vehicle contradicts what you say, then the police officer (and ultimately the Court if police prosecute the matter) will have to decide which version they accept.

In order to convince police of your version, you need to be able to present them with solid evidence. 

You can help persuade them…

Qld Police will then make the decision as to whether they iIssue a traffic infringement notice (and ultimately prosecute the matter in the Court).

They will do so  on the basis of all of the evidence that is available to them at the conclusion of their investigation into the incident. 

They will critique:

  1. the reliability of the evidence;
  2. your character; 
  3. the character of the driver, and
  4. the character of any independent witnesses to the incident.

The first two are particularly important...

...in many cases where the cyclist is reporting a 1m breach, the police will not have spoken to the offending motorist.

emily Billiau

principal, Cycle law

What evidence can the police accept?

Evidence can take several forms – for example, it may be lead in the form of documents, witness statements and video recordings.

What are the Rules of Evidence

In Queensland, the Evidence Act 1977 (Qld) prescribes the rules which govern the procedure and admissibility of evidence in the Courts.

The rules are aimed at ensuring fairness.

Evidence will only allowed into Court (admissible) if it is relevant.

And it is only relevant where its existence tends to indicate that one of the facts in issue (or one of the versions (yours or the drivers)) is more likely than the other.

get RELEVANT evidence

Evidence  is only relevant where its existence tends to indicate that one of the facts in issue (or one of the versions - yours or the driver's) is more likely than the other.

Exclusion of evidence - what won't be considered?

While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence from being considered by a Court.

Probably the most well known exclusion is that of hearsay.

Hearsay evidence will not be admitted.

For example, if Emily tells Ashley that she had seen a third person, Anne (a motorist), pass a cyclist only allowing a gap of 0.5m, Ashley would not, as a general rule, be able to give evidence of Emily’s statement against Anne in Court.  

One of the other more common exclusions relates to opinion & expert evidence.

When a person gives evidence it ought to be a direct account of what that person actually saw.

A person's interpretation or opinion cannot normally be admitted as evidence.

For example, if Emily, Ashley and Anne were riding together in single file (and in that order), and Anne was clipped from behind by a motorist, Emily and/or Ashley could not give that they assume Anne was clipped by the motorist because they did not actually see that occur.

OK, so how about my video evidence then?

Video evidence is a good place to start.

If it captures the incident itself, it cannot easily be excluded as hearsay or opinion evidence. It has to be taken at face value.

And whilst the video might not capture everything, it is a much better starting point than the usual “he said, she said” incident police are faced with.

Video sounds great, is there anything else I need?

    A well prepared written statement (that you can do yourself) will go a long way to letting the police know you are serious    

Written statements should include enough factual and persuasive information as possible.  If you do most of the work, you are making  it easy for the police - and you will most likely get a much better response.


The statement should  include things like your personal details, geography descriptions, date and time, position of other roads and traffic islands etc, how the accident occurred and so on.

Get our free statement template

We have prepared a document to help cyclists prepare their own incident statements. 

It is kept in a closed facebook group called "The Revolution".

The Revolution is comprised of like-minded cyclists who are pushing for reform to make our roads safer.  Join the group and get the statement template.  You can also participate in an active online community that is troll free.

Join The Revolution With One Click (and Get Free Access to the Statement Template)

Once inside The Revolution, look for this post...

...or do this....

3 Reasons Why Motorists Can’t Push Cyclists Off the Edge

You don’t have to ride on the shoulder of the road.

The law of the left edge

In Queensland, the Transport Operations (Road Use Management—Road Rules) Regulation 2009 prescribe the rules which must be followed by road users.

So let’s get some of them down:

  • Section 129 (1) states that a driver (rider), on a road other than a multilane road, must ride as near as practicable to the far left side of the road; (so we get where the motorists are coming from)
  • Section 129 (3) states that the road does not include a road related area; (so what is a road–related area?)
  • Section 13 (2) (a) states that the shoulder of the road is a road related area
  • Section 13 (3) (b) (ii) states that any area outside an edge line is a shoulder

If it's not safe on the left edge, don’t ride there

The short of this – if there is a wide shoulder that does not mean the cyclist has to occupy the shoulder.

Cyclist often will ride on the shoulder as a matter of courtesy. However, they should only do so if it is safe.  

Unless you had a death wish you would NOT STAY LEFT on the road pictured above - and you would be entitled to move into the centre of the lane.

The law states that you are to ride as near as practicable to the far left side of the road (and this does not include the shoulder).

Proving the left edge is not safe

The words “as near as practicable” are open to interpretation.  Whenever anything is open to interpretation, it is important to gather compelling evidence that can sway this ‘interpretation’ in your favour.

 If the edge of the road is in a bad way...

  • chipped, 
  • cracked,
  • bitumen breaking away
  • sunken depression
  • potholes

...then it will be reasonable/practicable for you to move towards the centre of the lane.

A video camera on the front of your bike will capture the condition of the road – your compelling evidence.  Live ‘date-stamped’ footage will be extremely powerful should you be involved in a ‘near miss’. Particularly if the offending motorist claims you were not as far to the left as you should have been.

get evidence

A video camera on the front of your bike will capture the condition of the road – your compelling evidence.  Live ‘date-stamped’ footage will be extremely powerful should you be involved in a ‘near miss’. Particularly if the offending motorist claims you were not as far to the left as you should have been.

What should you do with the video evidence?...Here's one idea...

    THERE IS A PLACE FOR THOSE OF US WHO WANT TO LIVE ON THE EDGE OF CHANGE!     

Cycle Law and Bicycle Queensland have teamed up to create a strongly policed, closed Facebook community for cyclists called The Revolution

  • Video footage from members of the group will be openly discussed and shared. 
  • Highly experienced litigation lawyers will provide tips as to how best gather the right kind of footage (that will stand up to the sting of battle in a court-room).
  • The aim is to collect hours and hours of this type of ‘robust’ evidence.

It will assist with law reform bids to make cycling safer and our community healthier.

Join the Revolution With One Click

Horror Accident in Bardon Leaves One Dead

A 61-year-old male rider was killed over the weekend when he collided with a sedan towing a trailer along Jubilee Terrace in Bardon.  Emergency services were called to the crash at about 8:30am on Saturday morning.  The Arana Hills local was pronounced dead at the scene.  Police say the sedan was turning right into Arthur Terrace when it collided with the deceased, who was travelling south along Jubilee Terrace.  The driver of the sedan, a 21-year-old Kippa-Ring man, is assisting police with their inquiries.  With the circumstances of the accident still largely unknown, the Forensic Crash Unit is appealing for witnesses of the incident to come forward.  Brisbane Lawyer, Emily Billiau, appealed for motorists to take more care on our roads, especially as the silly season nears. Emily said:-

            “Every year, we see an increase in compensation claims from accidents on our roads as the Christmas period approaches. This is a timely reminder for all road users to exercise extra care on our roads”.

By Claire McHardy

Kenmore Local Demands Better Road Safety

A Kenmore local, struck down by a car attempting an illegal U-turn, is appealing for motorists to get off their phones and pay more attention to the road.

Tomlin was riding along Moggill Road at Taringa last month when the car in the lane beside her indicated and performed a U-turn suddenly.

After being thrown from her motorcycle and over the top of the car, Tomlin slid down on to the tarmac where she lay waiting for an ambulance.

Sam Tomlin is feeling extremely lucky to have escaped the crash without catastrophic injury. Unfortunately, many on our roads are not as fortunate as Tomlin. These year alone, there have been 42 motorcycle/moped and pillion fatalities in Queensland, and many more accidents involving serious injuries.

With several riders having lost their lives on Brisbane roads in past weeks and silly season just around the corner, we hope Tomlin’s appeal does not fall on deaf ears.

Brisbane lawyer, Emily Billiau said:

“Drivers have a duty of care to all road users including cyclists and motorcyclists.  The Compulsory Third Party Insurance Scheme regulated by MAIC is designed to provide compensatory relief to people like Ms Tomlin who have been unfairly injured”

For more information contact Emily here.

By Claire McHardy