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A car accident took place in Chatswood, NSW, on a dark and rainy
day with poor visibility. One of the cars involved was a Nissan
Skyline, occupied by the driver and his passenger, who worked
together and had just left their place of work.
The driver lost control of the Skyline, crossed onto the wrong
side of the road and came to a standstill. A four wheel drive
vehicle travelling in the opposite direction was unable to stop and
collided with the front passenger door of the Skyline. The
passenger was trapped in the car and sustained serious injury to
his left leg. The driver of the four wheel drive was also
injured.
"Nominal Defendant" in cases where vehicle is
uninsured or unidentified
Both the passenger and driver of the Skyline reported that
immediately before the accident, a black vehicle had moved suddenly
from the kerbside into the lane in front of them. They claimed it
abruptly cut them off and that the driver had lost control of the
Skyline while swerving to avoid it.
However, no black vehicle could be identified. In NSW, all
insurers are required to be part of the Nominal Defendant fund.
This is a statutory body set up for claims to be made by people who
are injured by a vehicle which is uninsured, or where the vehicle
cannot be identified (for example, a hit-and-run). The purpose of
the Nominal Defendant is to ensure that people who are injured
don't go without adequate treatment or compensation.
Passenger sues Nominal Defendant and driver of car
The passenger sued the Nominal Defendant, on the basis that the
unidentified black vehicle had caused the accident. The passenger
also sued the driver of the car, arguing that the driver had
breached his duty of care by driving at a speed which was excessive
given the wet conditions, causing him to lose control of the
vehicle.
Nominal Defendant denies liability
The Nominal Defendant denied liability, relying on the account
of the driver of the oncoming four wheel drive vehicle. This driver
reported that immediately before the accident she had seen the
Skyline "fishtailing out of control" before it crossed
over onto the wrong side of the road. She also said that she did
not see any unidentified black vehicle.
It was up to the court to decide who was to blame for the
accident; the driver of the Skyline or the driver of an
unidentified black vehicle (i.e. the Nominal Defendant).
Case a - The case for the driver
Case b - The case for the Nominal Defendant
An unidentified black car pulled out in front of me, cutting me
off, and I acted entirely reasonably by taking evasive action to
avoid colliding with it.
In my accounts to police and others since the accident I've
been consistent about the existence of this unidentified black car
and so has my passenger. My passenger has corroborated my version
of events in his police statement, his personal injury claim form,
in the NSW ambulance report and in the histories he's given to
his doctors.
My passenger has no reason to lie about the existence of the
black car, as he was injured in his journey home from work which is
compensable under the Workers Compensation Act.
The evidence of the driver of the four wheel drive vehicle did
not establish that there was no black car. Indeed her statement to
NRMA stated: "The police never asked me about any other
vehicle." Her attention was focused solely on my vehicle, the
Skyline.
The Nominal Defendant should be found liable by reason of the
negligent driving of the unidentified black vehicle.
The driver of the oncoming four wheel drive vehicle did not see
a black vehicle and, to the contrary, gave evidence that she had
seen the Skyline fishtailing along the road. She is a credible
witness and had a clear view of the oncoming Skyline.
The court has reasons to doubt the passenger's credibility
as a witness, including the circumstances of termination of his
employment, his post-accident treatment and surveillance evidence
which appeared to contradict his claim that he walked with a
limp.
The driver of the Skyline has a very poor driving history. He
had lost his driving licence prior to the accident and had been
convicted of negligent driving causing grievous bodily harm. He was
also sacked from his job following complaints from the public that
he was driving erratically and at dangerous speeds on a freeway,
tailgating and swerving, while driving his company's
truck.
Faced with the prospect of explaining to police how he came to
be stationary on the wrong side of a busy road, with two people
injured and no driving licence, the driver had a powerful motive
for fabricating a story about avoiding an unidentified black
car.
The court cannot be satisfied that there was a black vehicle
that caused the driver to take evasive action and lose control of
his vehicle, so the driver of the Skyline should be found liable in
negligence for the accident and the passenger's injuries.
So, which case won?
Cast your judgment below to find out
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