Who is the “nominal defendant”?
What happens if you fall foul of someone else’s bad driving on the roads but can’t identify the person responsible? When another’s wrongdoing has left a negative impact on your life but you simply have no way of identifying them to pursue justice?
Few people realise that there are options available to you under the law.
So who is this elusive character, the “nominal defendant”?
Under the nominal defendant scheme, a person can claim compensation for injuries caused by an accident, even if the injuries were caused by an unregistered or unidentified motor vehicle.
As the name suggests, the scheme creates a defendant who exists in name only and does not actually have a physical presence. The nominal defendant is the culmination of a set of laws that have created a kind of safety net for the people of NSW. The effectiveness of the scheme was demonstrated in a recent case involving 13 year-old Georgina Woods, who was the victim of a hit and run incident five years ago. She was awarded $7.5 million in compensation as part of a claim made against the nominal defendant in the Supreme Court.
So how does the nominal defendant scheme protect you?
Compulsory Third Party (CTP) insurance is a pre-requisite for registering a vehicle in NSW. A small portion of the money CTP insurers receive from vehicle owners is pooled into a fund which is used when someone makes a claim against the nominal defendant. The Motor Accidents Compensation Act sets out the law in relation to the nominal defendant scheme.
While the nominal defendant does not have a physical identity, any action brought against it still has to be defended. The Motor Accidents Authority (MAA) will randomly allocate your claim to an insurer who will deal with it in the same way it would a regular client.
But before making a claim against the nominal defendant, you must be able to prove that all reasonable practical means have been used to identify the vehicle and/or the driver.
In 2003 a Cessnock man sued the nominal defendant and the local council after becoming a quadriplegic in a cycling accident. He claimed that an unidentified vehicle had pushed him into potholes on the road shoulder. But the High Court ruled in favour of the nominal defendant, meaning that the 35-year-old was forced to hand back more than $2 million in compensation. On appeal, the Supreme Court rejected the man’s claim that a car had been involved at all.
The idea of course, is to protect those who are truly deserving of compensation because they have genuinely suffered injury as a result of the negligent actions of a driver or rider.