What is the Nominal Defendant?

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?

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.

What is 'due search and enquiry'?

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

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

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 overdo your efforts….leave nothing to chance. 

Because the phrase ‘due search and inquiry’ is vague, the effort required to satisfy the requirements 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.

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.

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 single 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 neighbourhoods, so will generally do anything they can to help a victim of a hit and run that happened in their street.

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.