The nominal defendant scheme is a safety net for people injured in a car accident when the driver at fault cannot be identified or is uninsured.

The scheme allows injured persons to make a claim for their injuries to ensure that they receive the appropriate amount of treatment and compensation.

How does the nominal defendant scheme work?

Under NSW compulsory third party (CTP) claims laws, a fraction of all money paid for CTP insurance is contributed by insurers to the Nominal Defendant Fund.

When the driver at fault cannot be identified, motor vehicle claims may be made against the ‘nominal defendant’ and are treated by insurers in the same manner as other injury claims.

The nominal defendant is not an actual person, but a construct of the law that allows for the compensation process to proceed.

Case studies

Hit and run minibus

Hit and run accidents are an example of when the nominal defendant scheme can be accessed. In these instances, the driver cannot be identified and an injured person would ordinarily be unable to make a claim, however they can make a claim against the nominal defendant.

A recent case involved a traveller who was hit and injured by an unidentified minibus outside Sydney Airport’s Terminal 2. He suffered serious injuries and made a claim against the nominal defendant for compensation. Despite an appeal against the original judgment, and a finding of contributory negligence, he received over $266,000 in compensation for his injuries (see The Nominal Defendant v Ross).

Evidence still needs to support claims against the nominal defendant

As in other compensation cases, the claimant still must provide evidence to support their claim on the balance of probabilities. In a recent case, a cyclist who suffered injuries while riding his bike alone.

The cyclist claimed that he was hit from behind by an unidentified car and made a case against the nominal defendant. The primary judge found in favour of the cyclist, awarding him $350,000 in compensation for his injuries. However, on appeal, the court found that there was conflicting evidence gathered at the time of the incident which led to a successful challenge against the original decision (see The Nominal Defendant v Cordin).

Motorcyclist was uninsured

In other situations, if one of the drivers at fault is uninsured, the nominal defendant can be sued for damages. An example of this occurred in a Queensland decision which involved two motorcycles – one was insured and the nominal defendant was joined as a defendant (see Gideona v Nominal Defendant).

Same time limits apply

Like other motor vehicle claims, it’s important to act within the designated time limits, otherwise a claim may be rejected. Firstly, you need to report the motor vehicle incident to the police within 28 days of the incident. And a personal injury claim against the nominal defendant must be made within six months of the accident.

New CTP laws will still include a nominal defendant scheme

Although new CTP law laws will commence at the end of this year, there will still be a nominal defendant scheme in place. Motor vehicle claims for injury compensation will still be able to be made against the nominal defendant for accidents involving unidentified or uninsured drivers.

Have you been injured by an unidentified or uninsured vehicle? Our lawyers have the answers

If you’ve been injured by an unidentified or uninsured vehicle, speak to our motor vehicle claims experts who can help you gain the compensation you need under the nominal defendant scheme.

Further reading

• Motor Accidents Compensation Act 1999
• The Nominal Defendant v Ross [2014] NSWCA 212
• The Nominal Defendant v Cordin [2017] NSWCA 6
• Gideona v Nominal Defendant [2005] QCA 261; [2006]1 Qd R 31