If the driver who caused your motor accident in New South Wales cannot be identified or was not insured, a claim can still be made against the Nominal Defendant, which stands in for the missing insurer.
If the vehicle that caused your accident in New South Wales cannot be identified, or it turns out the vehicle was unregistered or uninsured, you are not left without a claim. A statutory body called the Nominal Defendant stands in for the missing insurer and answers the claim in its place.
What the Nominal Defendant is
Every registered vehicle in New South Wales carries compulsory third party insurance, and a motor accident claim is normally made against the insurer of the vehicle at fault. The Nominal Defendant exists for the situations where that ordinary pathway breaks down, either because no insurer can be identified or because the vehicle was never insured to begin with.
The scheme sits within the Motor Accident Injuries Act 2017 and is overseen by the State Insurance Regulatory Authority, known as SIRA. The Nominal Defendant is a legal entity in its own right, and claims against it are handled day to day by a licensed CTP insurer allocated by SIRA.
When a Nominal Defendant claim applies
Two situations commonly lead to a Nominal Defendant claim.
The first is a hit and run, where the at fault vehicle left the scene and cannot be identified despite reasonable efforts to trace it. The second is an accident caused by a vehicle that turns out to be unregistered, and therefore uninsured, at the time of the collision. In both situations the injured person can still pursue compensation, but the claim is directed at the Nominal Defendant rather than a named insurer.
Due inquiry and search
Where the vehicle cannot be identified, the injured person has to show that due inquiry and search has been made to establish the identity of the vehicle. This is a specific requirement of the New South Wales scheme, and a claim can fail on this point alone.
In practice that means reporting the accident to police as soon as practicable, checking with witnesses, and following up any partial detail that was noted at the time, such as part of a number plate, the make or colour of the vehicle, or the direction it was travelling. Requests for nearby security or dashcam footage, and notices placed at the scene or in local media, can also form part of the search. Keeping a record of each step taken is as important as the step itself.
A certain time frame applies to notifying a claim, and the evidence needed to identify a vehicle degrades quickly, whether that is a witness memory or footage that gets overwritten within a set period. Prompt action in the days after the accident matters more here than in most other motor accident claims.
Statutory benefits and damages
The New South Wales scheme has two parts, and both are available in a Nominal Defendant claim.
Statutory benefits cover treatment and care, and a proportion of lost income, from soon after the accident. They are available regardless of who was at fault, although they can be reduced or cut short where the injured person was mostly at fault or the injury is a threshold injury. The claim for statutory benefits is lodged with the insurer allocated to act for the Nominal Defendant.
A claim for damages is separate. It is assessed on fault and is available where the injury is not a threshold injury, and it can include amounts for economic loss and, where the injury is serious enough, for non economic loss. Our guide to CTP claims in New South Wales explains how the two parts fit together.
Evidence that carries the most weight
Because there is no insurer investigating the vehicle on the injured person’s behalf, the evidence gathered by or for the injured person becomes central. A police event number is the starting point in almost every case. Beyond that, photographs of the scene and any damage, contact details for witnesses, and any dashcam or nearby security footage can all help establish both how the accident happened and what steps were taken to identify the vehicle involved.
Medical evidence matters in the usual way. Treatment records created close to the date of the accident support both the account of how the injury occurred and its ongoing effect, which becomes important once the claim reaches an assessment stage.
What this means for you
A Nominal Defendant claim follows the same broad shape as an ordinary compulsory third party claim in New South Wales, with the Nominal Defendant standing in as the responding party. The injured person still needs to establish how the accident happened and, in an unidentified vehicle case, needs to show that due inquiry and search was made. Time limits apply to notifying the claim, and our guide on time limits for personal injury claims sets out how these limits generally work. If you have been injured by a driver who cannot be found or was uninsured, you can check your entitlement or contact our Sydney office.