No - you still have a motor accident claim. If you cannot identify the offending motor vehicle that caused the accident, then the claim is against the Nominal Defendant who acts as the CTP insurer in your claim. The Nominal Defendant is a quasi-governmental body formed by Statute and specifically set up for this purpose – to ensure those injured in a motor vehicle accident due to the fault of an unknown party, is duly compensated.
However, there is a duty on a claimant seeking compensation against the Nominal Defendant when details of the vehicle at fault were not obtained, to prove that reasonable efforts have been made by the claimant to identify the vehicle at fault.
In most cases where a car accident occurs due to the negligent act or omission of the driver of an unidentified vehicle, the vehicle leaves the scene of the accident and the accident victims do not have time, or are unable due to their injuries or trauma of the accident to take down details of the escaping vehicle. In such case, there is still a duty on the claimant to make proper inquiry and search to locate the vehicle at fault. This usually involves reporting the incident to the police as soon as possible following the accident, placing advertisements in a newspaper in the area of the accident in an attempt to locate witnesses to the accident, undertaking investigations with local residents and businesses in the area, or locating any CCTV footage in the area that might show evidence of the vehicle at fault. An Affidavit by the claimant advising of the investigations undertaken is then usually sufficient for the Court to accept the claimant's duty has been met.
However, in the recent case of Murray v Nominal Defendant (2014) QDC 144, in the District Court at Brisbane, His Honour Judge Farr, found that the driver of a vehicle who was claiming for minor whiplash injuries sustained in a rear ender collision whilst the vehicle was in a McDonald's drive through, had not met his duty of care in not attempting to take down details of the vehicle that rear ended him. In that case, the Court held that the Plaintiff had sufficient time, following a minor accident to take down details of the offending vehicle, and even considered that the Plaintiff could have had his wife who was a passenger in the vehicle, record the details of the vehicle at fault before the vehicle left the scene. This was particularly the case as the offending vehicle did not leave the scene of the accident immediately following the accident and the Plaintiff and his wife, who actually stepped out of the vehicle to inspect the vehicle on one occasion and then to berate the driver at fault for the collision at a later time, were in the vicinity of the at-fault vehicle following the accident for some minutes. The Judge could therefore see no reason why the Plaintiff could not have taken down details of the vehicle or told his wife the details to record. The Judge also noted that the Plaintiff did not even get out of the vehicle following the accident to obtain details of the other vehicle.
When making his determination, His Honour Judge Farr also took into account the minor nature of the Plaintiff's injuries resulting from the low impact collision. On the basis of this reasoning, His Honour Judge Farr dismissed the Plaintiff's damages claim against the Nominal Defendant. To read more about this decision, go to our News and Publications section of our website by clicking on the following link: Murray v Nominal Defendant
Special time limits apply to claims against the Nominal Defendant however which are even stricter than in other motor accident claims and you therefore need to take action to bring your claim as soon as possible after sustaining your injuries. For details of the strict time limits that apply to Nominal Defendant claims in Queensland, go to our glossary and look for the term "Strict Time Limits" or go to the FAQ on time limits for personal injury claims by clicking on the following link:Strict time limits
To ensure your claim is protected and to learn more about such claims, contact The Personal Injury Lawyers on 1300 782 202 today. We have a team of personal injury solicitors who specialise in motor accident claims, and who can assist you with your enquiries all on a NO WIN NO FEE* basis. And the initial consultation is free, totally confidential and there is no obligation.