The Facts

Driver loses control of vehicle on wet road

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

Vote case A – the case for the driver
Vote case B – the case for the Nominal Defendant

Sophie Lee
Personal injury
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.