Who caused the car accident – the driver, or an unidentified vehicle? Which case won?
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).