Even if you are not hit by a vehicle, a motor vehicle accident may have occurred

Date: May 19, 2016

In January 2006, a cyclist crashed into a telegraph pole without actually being hit by a motor vehicle. The plaintiff also was unable to identify the defendant, so a ‘ghost’ defendant was used instead.

When is a bicycle accident a motor accident?

In the case of Nominal Defendant v Hawkins, heard in 2010, the tort was over the relevance of the Motor Accidents Compensation Act 1999 (MACA). Specifically, this case examined whether an object thrown from a vehicle driven by a defendant caused the plaintiff cyclist to collide with a piece of metal on the footpath which caused his tyre to burst leading to a collision with a telegraph pole. It became complicated when the driver of the car could not be identified, but nominal defendants are designed for these sorts of situations.

The dispute examined whether intimidating driving by the defendant, and the defendant’s harassment of the plaintiff – including honking and throwing an object at the plaintiff – cause the plaintiff’s crash. The judge decided that the defendant’s manner and action in throwing an object could have been foreseen as likely to injure the plaintiff, therefore the injury was the driver’s fault.

Case law or statutory law?

At stake was the definition of a motor accident injury. The MACA defines liable injury in cases like this as “personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, if and only if, the injury is a result of and is caused during the driving of the vehicle.” Because some sort of injury occurred during the driving, the driver was liable.

What is a nominal defendant?

The Motor Accident Insurance Act 1994 requires people who are injured as a result of negligent driving by unidentified or uninsured motor vehicles to have a nominal defendant take the real defendant’s position and challenge their claim. The nominal defendant is a statutory body. In this particular case, the nominal defendant rejected an initial settlement of $110,000 and the plaintiff subsequently was awarded $310,000 after an unsuccessful appeal by the defendant.

The significance of this case

If you are injured by a motor vehicle in some way, you can claim damages and it doesn’t matter if the car had no driver, had an uninsured driver or whether the car hit you or not.
Gerard Malouf and Partners are dedicated to rectifying the damage caused by hit and run drivers. If you have been injured in a hit and run, there are steps you have to take to ensure that you receive your compensation entitlements, including showing the Nominal Defendant you have properly searched to try and identify the vehicle and driver who caused your injury. It’s complicated stuff and time is of the essence, so get in touch with Gerard Malouf and Partners compensation lawyers today.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.