In New South Wales (NSW), the motor vehicle accident compensation system provides crucial support for individuals injured in accidents, even when the responsible party cannot be identified or is uninsured. Nominal defendant claims play a key role in this system, offering a lifeline to victims in such situations. This article explains the nature of these claims, recent legislative changes, and how individuals can successfully navigate the process.
What Are Nominal Defendant Claims?
A nominal defendant claim arises when a person is injured in a motor vehicle accident involving either an unidentified or unregistered vehicle. In these cases, there is no identifiable party or insurance provider to seek compensation from, which is where the Nominal Defendant Scheme steps in.
There are two main scenarios where nominal defendant claims are relevant:
- Unidentified Vehicles: This typically involves hit-and-run accidents, where the responsible vehicle cannot be located.
- Unregistered Vehicles: The vehicle involved is unregistered and lacks Compulsory Third Party (CTP) insurance
The Nominal Defendant Fund is a reserve that receives financial contributions from CTP insurers in NSW. This ensures that victims are not left without financial support in cases where the at-fault party cannot be found or is uninsured.
Recent Changes to the Nominal Defendant Scheme
In recent years, the framework surrounding nominal defendant claims has undergone several important changes, particularly with the Motor Accidents Injuries Act 2017. These include:
Section 1.10A Changes
As of April 2023, Section 1.10A of the Motor Accident Injuries Act 2017 introduced significant changes affecting nominal defendant claims. This section now has retrospective application, meaning it applies to all open claims for statutory benefits, regardless of when the accident occurred. Key aspects include:
- The Nominal Defendant’s liability for statutory benefits claims now mirrors their liability for damages claims
- Claims involving unidentified vehicles must occur on a road to be valid.
- The same requirements that previously only applied to damages claims (like due search and enquiry) now also apply to statutory benefits claims..
- If a vehicle is uninsured or unidentified, claims can be made through the nominal defendant to ensure access to treatment and compensation.
In Wright v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 268, where the Personal Injury Commission determined that the Nominal Defendant was not liable for statutory benefits because the accident (involving unregistered forklifts) occurred on private property rather than a road.
These updates have refined how nominal defendant claims are processed and what individuals are entitled to receive.
Making a Nominal Defendant Claim
To successfully pursue a nominal defendant claim in NSW, claimants must follow specific steps and adhere to strict timeframes.
Time Limits for Lodging Claims
- Claims must be lodged within three months of the accident date. Failing to meet this deadline may lead to the rejection of the claim.
- Police must be notified of the accident within 28 days. Failure to do so may lead to complications in your claim.
- The necessary forms for lodging a claim with the Nominal Defendant must be accurately completed and submitted.
Demonstrating “Due Search and Enquiry”
For cases involving an unidentified vehicle, claimants are required to show that they made reasonable efforts to identify the at-fault driver. These actions, referred to as “due search and enquiry,” involve:
- Notifying the police as soon as possible to ensure a record of the incident.
- Speaking to witnesses or individuals near the scene to gather relevant information.
- Placing notices in local newspapers or using social media to solicit tips or leads.
- Reviewing any available surveillance footage, such as from CCTVs or dashcams, that may identify the vehicle or the driver.
These actions help strengthen the claim and ensure that the claimant has made a diligent effort to identify the responsible party.
Statutory Benefits Available Under NSW Law
When successful, nominal defendant claims provide access to statutory benefits that cover various needs resulting from the accident. These benefits are available for both initial and extended periods following the injury.
Initial Benefits
For 52 weeks, claimants are entitled to several types of support, including:
- Weekly income payments for the first 13 weeks of up to 95% of the claimant’s pre-accident earnings are paid to replace lost income.
- All necessary medical treatments, such as hospital stays, rehabilitation, and surgery.
- Commercial attendant care services, if the claimant requires assistance with daily tasks due to their injuries,
- Funeral expenses in cases of fatal accidents
How to Improve Your Chances of a Successful Claim
To maximise the chances of a successful nominal defendant claim in NSW, consider the following steps:
- Report the accident within the required 28-day period.
- Keep records of all actions taken to find the responsible party, including witness statements and advertisements.
- Obtain detailed medical reports that clearly outline the extent of your injuries.
- Maintain a record of all expenses related to the accident, including medical costs and lost wages.
- Ensure that your claim is lodged within the six-month window.
Adhering to these steps will help ensure the timely and successful processing of your claim.
Conclusion
Nominal defendant claims provide vital protection for individuals injured by unidentified or unregistered vehicles in NSW. While the process can be intricate and subject to legal complexities, understanding the requirements and timeframes is essential for success. With recent changes in legislation and case law, having expert legal guidance is more important than ever to navigate the system effectively.
How We Can Help
At Gajic Lawyers, we are experienced in the intricacies of nominal defendant claims in NSW. We offer comprehensive support throughout the claims process, ensuring that you understand your rights and entitlements. Talk to one of our Parramatta Motor Vehicle Claims Lawyers or Cabramatta Motor Vehicle Claims Lawyers today to secure the compensation you’re entitled to.
