Introduction
Accidents where you don't know the details of the driver who hit you are less common but by no means rare. In this post we will look into a real case (Murray v Nominal Defendant [2014] QDC 144) where the injured person failed to collect details of the driver. Learn the two top tips Neville needed to know to avoid missing out on his claim.
Neville's Story
Let me introduce you to Neville and his wife, Yasmine.
Neville and Yasmine* live in Slacks Creek. They love the NRL and head out to as many games as they can. Of course, they barrack for the Broncos.
Neville works as a brick layer for local builder and Yasmine works in retail.
They both enjoy camping and head out to North Stradbroke Island when they can get some time off work.
Neville dreamt of one day owning a boat...
Neville's Dream
I would love to own my own boat so Yas and I can go fishing in the holidays.
Would be great to take my mates out fishing on the weekends too.
The plan was going swimmingly until...
Neville was rear-ended by another car.
Late one night, Neville and Yasmine decided to grab some McDonald’s from Springwood for dinner.
As they sat in the drive-thru, a Commodore slammed into the back of Neville’s car.
Yasmine got out to see if their car was damaged while Neville remained in the driver’s seat. Thankfully, there was no damage, but Yasmine did see the front of the other car’s number plate was crushed and couldn't be read.
Yasmine and the driver had an argument. Eventually, they got back into their cars and kept driving.
Neville and Yasmine exited the drive-thru and parked to properly inspect their car. Yasmine then saw the at-fault driver leaving. Yasmine yelled at the car to stop. The vehicle at fault reversed back towards Neville and Yasmine and pulled up beside them. The conversation again broke into argument.
Then in an instant the car performed a U-turn and was gone, speeding out of McDonald’s and away from Neville and Yasmine.
No one took down the details of the other car.
The next day, Neville awoke with crippling pain in his neck, mid back and right jaw.
He was suffering whiplash as a result of the collision.
Neville was forced to take time off work. When he returned some time later, Neville still suffered some recurring neck and shoulder pain. He had difficulty walking and his doctor noted that appeared to be in suffering from considerable pain and loss of movement, even 2 years after the accident. This made it difficult to work and Neville had to take many days off.
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Neville was frustrated and mad.
He no longer had a steady income because the accident left him in crippling pain.
No one deserves to be held back because of someone's actions.
The government recognises this and has provided a scheme for people like Neville so they can get back to where they were before the accident. Those who have suffered from an accident can bring a claim against the at-fault driver to replace their lost income and superannuation.
The problem for Neville was that he didn’t know who the at-fault driver was.
Introducing the Nominal Defendant
Who is the Nominal Defendant?
Click to reveal it's definition
Nominal Defendant
However, there are harsh restrictions on Nominal Defendant claims, including demonstrating that you tried to collect and search for the details of the at-fault driver. This is known as proper search and inquiry.
Because of these restrictions, Nominal Defendant claims are uncommon. The below graph highlights the number of claims against the Nominal Defendant compared with claims against insurers.
For Neville to succeed he had to prove he attempted to search for the at-fault car's vehicle.
In cases against the Nominal Defendant proper inquiry and search to identify the at-fault vehicle must be carried out.
So the question is, what did Neville do to attempt to collect the driver's details and was this enough?
Neville phoned his solicitors the day after the accident, who then made immediate contact with McDonalds to retrieve the CCTV footage. Unfortunately, the McDonalds manager informed them that the camera recording system was “not operational” at the time of the accident.
A Report of Traffic Incident to Police was also promptly provided to the Slacks Creek station and a notice published in the Courier-Mail six months later calling for witnesses.
But no results came from either of these events.
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The Judge did not believe Neville's actions were adequate.
Judge Farr SC disagreed with Neville’s belief that he had no opportunity to collect details from the at-fault driver.
In this case they had plenty of opportunity to take down the necessary details. Yasmine even got out of the car a number of times to inspect the damage and talk to the driver. Neville never once got out of his car.
Judge Farr SC
“The identity of the vehicle which struck the [Neville] was readily [available to] him, had he made a simple inquiry at the scene of the accident. It would be reasonable to expect that Neville was capable of obtaining the relevant details at the scene.”
The Judge dismissed the claim against the Nominal Defendant.
This was because Neville could not prove he had conducted a proper inquiry for the driver’s details.
The hard-line approach adopted by the Judge provides an example of how the Courts read the scope of the law. There is no room for leniency and judges will not give you the benefit of the doubt.
Neville and his wife had ample opportunity to take down the details of the other vehicle.
But Neville did none of those things and his lack of action and urgency lost him his case.
Had Neville attempted to collect details on the night, he likely would be looking at a positive result.
Tip 1
Courts don’t take kindly to lazy claimants. You cannot assume that CCTV or another third-party captured the accident and in enough detail to record the registration information. Every effort needs to be made to collect the details the at-fault driver or you risk missing out on compensation.
Tip 2
Evidence is paramount. Had Neville collected evidence to show that he attempted in any way to ask for the details of the vehicle he may have been able to fulfil the requirements of proper search and inquiry in Nominal Defendant claims. The Courts need substantial proof to satisfy their requirements by law.
If Neville’s injuries were more severe his decision to rely on CCTV footage to collect the driver’s details may have haunted him for life.
Don’t make the same mistake.
Written by Mitchell Herlihy | Associate
* The names and narrative have been altered but the facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.