Nominal Defendant v Hawkins [2011] NSWCA 93

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=151251

 

A good decision.

 

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explain??
It is amazing how many people do not knaow about the nominal defendant.

Hi Tim, Mr Hawkins, an ordinary cyclist was injured as a result of another driver's harrassment on the road. He didn't know who the driver was at the time and brought proceedings against the Nominal Defendant. The insurer for the Nominal Defendant lost at first instance (District Court) and appealed the decision. The insurer lost its appeal.

 

Just because an injured cyclist does not know who hit him or her on the road, it does not mean there is no recourse.

 

How do they determine who is the insurer for the Nominal Defendant?

Unlucky for Allianz

Well, according to http://www.maa.nsw.gov.au/default.aspx?MenuID=111  "The MAA randomly allocates your claim to one of the insurers".

The whole concept of nominal defendant is new to me and seems somewhat amazing. Live and learn!

 

IIRC, in NSW the MAA randomly allocates the management of nominal defendant claims to a licenced CTP insurer.  I think there is an equalisation process such that each licenced insurer pays a proportional share of all nominal defendant claims rather than having to wear the cost of those they manage.
Nominal Defendant
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The Nominal Defendant receives claims where the vehicle at fault cannot be identified or is unregistered and the accident happened in NSW.

If you do not know the registration number of the vehicle at fault, find this out by asking the police, talking to witnesses or by putting an advertisement in the newspapers asking witnesses to contact you.

If you have tried everything and still cannot find out the registration number of the vehicle at fault, the vehicle is 'unidentified' and a claim should be made against the Nominal Defendant.

To make a claim against the Nominal Defendant complete a Personal Injury Claim Form or Compensation to Relatives Claim Form and send it to:

The Nominal Defendant
Level 25, 580 George Street
Sydney NSW 2000

The claim form must be sent as soon as possible, but no later than six months from the date of the accident.

The MAA randomly allocates your claim to one of the insurers. You will be advised who that insurer is. Once the claim is allocated to an insurer, it is managed in the same way as a normal claim.

For more information about the Nominal Defendant contact the Claims Advisory Service on 1300 656 919.


This is a very useful post Lawrence, thanks heaps.

I knew only a little about the Nominal Defendant. Great to see how it works.

 

I wonder what would happen if lots of cases like this were brought to court.

I guess motorist's insurers would either bump up premiums or decline cover for naughty people.

Motorists and cyclists must be made aware that even if they do not know who the offender was, it is still possible to bring a claim. It is important that the time limit for lodging a claim is observed.
If drivers become aware of this, it could have the perverse effect of incentivising them to leave the scene pronto in the knowledge that the cyclist can claim against the ND without them losing their no claims. (Thus removing a small amount of remorse/guilt that might otherwise result from this action).

Its a very risky call.  If the other party is injured its a criminal offence to leave the scene, and if the injury falls under GBH definitions, then the driver is risking a charge under Brendans Law, which has the same penalties as dangerous driving.  Even the passengers can be charged after the fact if none of them report it.

 

Its a good way to upgrade a traffic infringement notice, a stern talking to by the desk seargent and an insurance claim into serious criminal proceedings. 

Drivers certainly should become aware of this. If you are the driver and you get injured by either an uninsured driver, or by another driver you cannot identify, then you should be aware of these provisions.

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