Hit and Run or Uninsured Driver? Claiming Against the Nominal Defendant
You have done nothing wrong. A driver hits you and speeds off before you can get their number, or you discover afterwards that the vehicle that injured you was not insured. Many people in this position assume they have no claim at all and quietly give up.
They are usually wrong. New South Wales has a safety net built for exactly this situation, called the Nominal Defendant. It steps into the shoes of the missing or uninsured insurer, so that people injured by a hit and run or an uninsured vehicle can still access compensation. There is one catch worth knowing about early, a strict requirement to search for the vehicle in hit and run cases, and this guide explains it along with everything else.
Below we cover what the Nominal Defendant is, the two situations it covers, the search requirement, what you can claim, and the deadlines that apply. Please treat it as general information rather than advice about your own claim, and you should seek legal advice about your particular situation before making decisions about it.
What is the Nominal Defendant?
The Nominal Defendant is a statutory safety net within the NSW compulsory third party, or CTP, scheme, established under the Motor Accident Injuries Act 2017 (NSW) and overseen by the State Insurance Regulatory Authority, known as SIRA. It exists so that being injured by a driver who cannot be identified, or who was uninsured, does not leave you without the compensation any other injured road user would receive.
It is funded from within the CTP scheme, through contributions tied to the green slip premiums every motorist pays, and in practice the claim is usually managed by a licensed insurer appointed to act for the Nominal Defendant. From your point of view, a Nominal Defendant claim runs much like an ordinary CTP claim. The main differences are the situations that trigger it, and one important extra requirement in hit and run cases.
The two situations the Nominal Defendant covers
The Nominal Defendant covers two distinct situations, and the difference between them matters, because one carries an extra requirement and the other does not.
| Unidentified vehicle (hit and run) | Uninsured or unregistered vehicle | |
|---|---|---|
| What it means | The vehicle at fault cannot be identified | The vehicle is known but had no valid CTP insurance |
| Who you claim against | The Nominal Defendant | The Nominal Defendant |
| Is due inquiry and search required? | Yes, you must show reasonable efforts to identify the vehicle | Generally no, where you have the vehicle’s details |
| What you can claim | Statutory benefits, and damages where fault is shown | Statutory benefits, and damages where fault is shown |
An unidentified vehicle claim is the classic hit and run, where the driver who injured you left the scene and cannot be traced. An uninsured or unregistered vehicle claim arises where you know which vehicle was involved, but it did not carry the compulsory insurance every registered vehicle must have. Both are covered, but only the first carries the search requirement described next.
The critical requirement in hit and run claims: due inquiry and search
This is the single most important thing to understand about a hit and run claim, and the point on which these claims most often fail.
Under the Act, you cannot claim against the Nominal Defendant for an unidentified vehicle unless due inquiry and search has been made to establish the identity of that vehicle. In plain terms, the law expects you to have made genuine, reasonable efforts to identify the vehicle and driver before treating them as unidentifiable. If you could have identified the vehicle with reasonable effort but did not try, the claim can be rejected.
What amounts to due inquiry and search depends on the circumstances, but it generally includes reporting the accident to police as soon as possible and obtaining an event number, recording everything you can about the vehicle, such as its make, colour, partial number plate or any distinguishing features, seeking out witnesses and taking their details, and looking for camera footage, whether from nearby businesses, traffic cameras, home security systems or dashcams. In some cases it can extend to placing a notice appealing for witnesses.
The key is to act promptly, because this is where hit and run claims are won or lost. Memories fade, footage is overwritten, and witnesses move on. The sooner these steps are taken, the stronger your position, which is why getting advice quickly after a hit and run genuinely matters.
Importantly, this search requirement generally does not apply where the vehicle is known but uninsured. If you have the vehicle’s details, there is nothing to search for, and the claim proceeds on that basis.
What you can claim through the Nominal Defendant
A Nominal Defendant claim gives you access to the same entitlements as an ordinary CTP claim.
Statutory benefits provide weekly payments to replace lost income if you cannot work, and cover reasonable and necessary treatment and care related to your injury. These are available regardless of fault for an initial period, which means that even in a hit and run, where proving the other driver’s fault may be difficult, you can generally still access early income support and treatment.
Common law damages are a separate lump sum for the longer term cost of a more serious injury. As with any CTP claim, they depend on the other driver having been at fault and on your injuries being more than threshold injuries. In a hit and run, establishing that the unidentified driver was at fault can be more challenging, which is another reason evidence gathered early is so valuable.
In short, the missing or uninsured driver does not shut you out of the scheme. It simply changes who you claim against, and, for hit and run cases, adds the search requirement.
The deadlines you cannot afford to miss
The time limits for a Nominal Defendant claim are the same tight ones that apply across the CTP scheme, and they matter even more here because of the search requirement.
To have your weekly income payments backdated to the accident, a claim on the Nominal Defendant generally needs to be lodged within 28 days. There is usually a further outer limit of three months to lodge a claim at all, with later claims requiring a full and satisfactory explanation for the delay. Alongside those deadlines, the practical urgency of preserving evidence in a hit and run means the real time to act is immediately, not at the edge of the deadline.
What to do after a hit and run or uninsured driver accident
The steps below protect both your health and your claim, and several of them go directly to the search requirement.
- Get medical attention promptly, and make sure all of your injuries are recorded, including any that emerge in the days afterwards.
- Report the accident to police as soon as possible and obtain an event number. This is essential in a hit and run.
- Write down everything you can recall about the vehicle and driver, however small, including make, model, colour, partial plate and direction of travel.
- Find and preserve evidence quickly, including witness details and any camera footage from nearby businesses, homes, dashcams or traffic cameras.
- Lodge your claim on the Nominal Defendant within 28 days to have income support backdated, and within three months at the latest.
- Get legal advice early, because in these claims the quality and timing of your evidence can decide the outcome.
Does claiming affect the uninsured driver?
Where the vehicle was uninsured and its owner or driver is known, people sometimes worry about the effect on that person. It is worth knowing that the Nominal Defendant can seek to recover what it pays out from an uninsured owner or driver afterwards. That is a matter between the Nominal Defendant and that person, though, and it is separate from your claim. It does not reduce your entitlements or place the burden of chasing an uninsured driver on you, which is precisely the point of the scheme.
How Stephen Young Lawyers can help
Nominal Defendant claims reward fast, careful action, and they are unforgiving of delay. The search requirement in hit and run cases in particular can defeat an otherwise strong claim if the right steps are not taken early, and proving the fault of a driver who is no longer there calls for evidence that has to be gathered while it still exists.
An experienced personal injury lawyer moves quickly to preserve and obtain evidence, makes sure the due inquiry and search requirement is properly met, identifies whether your claim is an unidentified or an uninsured vehicle claim, lodges it correctly and within time, and pursues both your statutory benefits and, where the evidence supports it, a common law damages claim.
If you want to understand the process more broadly, we have guides on how to make a CTP claim in NSW, on statutory benefits versus common law damages, and on the rights of a pedestrian hit by a car and a cyclist injured by a vehicle, both of whom are often the victims of hit and run drivers. You can read about your broader options on our motor vehicle accident claims page. As an Accredited Specialist personal injury firm based in Sydney CBD, with a multilingual team and a No Win No Fee approach for eligible matters, we can review your situation and tell you where you stand.
No lawyer can promise you a particular outcome, and every claim turns on its own facts. What can be said is that a driver who cannot be found, or who was uninsured, does not have to be the end of your claim, provided you act quickly.
Speak with an experienced motor accident lawyer today
If you have been injured by a hit and run or an uninsured driver anywhere in New South Wales, the sooner you act the better, both for the 28 day deadline and for preserving the evidence your claim depends on.
Contact Stephen Young Lawyers today for a free, no obligation consultation. Call us or get in touch through our website to speak with an experienced personal injury lawyer about your accident and your options.