With a never-ending stream of news reports on hit and run incidents, it is important for injured Queenslanders to understand the important steps they should be taking if they find themselves involved in a road accident where the vehicle at fault has not been identified or is unregistered.
We often talk to clients or potential clients who are understandably concerned about whether they have any rights or entitlements in relation to injuries sustained in a road incident where the driver at fault has not been identified or is unregistered and there is no Compulsory Third Party Insurer to access damages.
People are often surprised to discover the CTP insurance scheme in Queensland provides for persons involved in a road accident with an unidentified or unregistered vehicle to lodge a claim for compensation against the Nominal Defendant.
The Nominal Defendant is a statutory body that is funded by a levy included in all Queensland motor vehicle registrations to cover the costs of claims involving unidentified vehicles, unregistered vehicles, or CTP insurers who become insolvent.
To be entitled to pursue a successful claim against the Nominal Defendant, it must be shown the injured person has taken all reasonable steps to attempt to identify the motor vehicle, otherwise known as “Proper Inquiry and Search”.
What constitutes ‘proper inquiry and search’ as been subject to debate by the Courts over the years. However, the most recent and important case on this point is Ford -v- Nominal Defendant [2023] QCA 83.
The matter of Ford involved a man who was injured when riding over a piece of timber that had fallen from an unidentified vehicle while riding his motorbike. The Queensland Court of Appeal explored whether the injured motorist should have:
- within a 20 second window of riding over the piece of timber and the other vehicle disappearing, pursued the vehicle to identify and remember the number plate; or
- return to the incident scene on a subsequent day in the hope the unidentified vehicle would again drive through the area.
Mr Ford was ultimately successful on this point as the Queensland Court of Appeal importantly reiterated that searches and inquiries that are not realistically likely to produce results are not a requirement of ‘proper inquiry and search’. It was also held that an injured person is not required to undertake steps that have only a faint possibility of being productive.
While this decision is helpful for injured motorists who are unable to immediately identify an at fault vehicle, it remains critical that urgent steps are taken to satisfy the legislative requirement to undertake ‘proper inquiry and search’. Any complacency on this point could be a fatal blow to a claim for damages against the Nominal Defendant.
In our experience, some helpful steps an injured person can take include:-
- obtaining the details of any potential witnesses at the incident scene;
- following up any potential witnesses regarding information they may have regarding the incident;
- notifying police as soon as possible about the incident and injuries sustained;
- regularly following up police for updates regarding any ongoing investigation;
- publishing a post on local community Facebook pages (or similar online community pages) calling for witnesses and any information regarding the incident;
- canvassing the incident location and performing a letter drop in the local area (residents/businesses) calling for witnesses and/or any possible CCTV footage;
- advertising in the local newspaper calling for witnesses;
- contacting the Department of Transport & Main Roads in respect of any local traffic CCTV footage.
It is also important for injured Queenslanders to be aware of the strict time limits associated with claims against the Nominal Defendant. The relevant Notice should be provided to the Nominal Defendant within three (3) months of the motor vehicle accident.
While the Notice can be provided to the Nominal Defendant up to nine (9) months of the date of accident (provided a reasonable excuse for delay is provided), if the Notice is not provided within nine (9) months of the date of accident, any claim against the Nominal Defendant is statute barred.
Accordingly, it is important for any Queenslanders injured in these unfortunate circumstances to obtain urgent legal advice to ensure their rights and entitlements are protected and that all reasonable steps are being taken to ensure compliance with the ever-looming obligation to undertake ‘proper inquiry and search’.
