PERSONAL INJURY NEWS - WHEN IS A CAR, NOT A CAR?

A definition of what is a motor vehicle that emerged in a judgement of the NSW Court of Appeal could leave NSW road users without compensation in the future if a loophole
in current legislation is not closed.

While the court rejected a bid by insurers to use the loophole to prevent my client being paid more than $2 million in compensation, drivers involved in accidents with unregistered vehicles in the future could be at risk.

Insurers acting for the nominal defendant, argued that my client, a 24-year-old man from Goodooga in Far Northern NSW, who suffered severe brain damage in the crash, was not entitled to compensation because the unregistered car he was a passenger in did not fit the Act’s definition of a ‘motor vehicle.’

( The Nominal Defendant receives claims where the vehicle at fault cannot be identified or is unregistered. Insurance companies contribute to a Nominal Defendant Fund and are randomly allocated defence of claims).

Section 33 of the Act says an unregistered vehicle is only a ‘motor vehicle’ when it can be proven it was roadworthy and capable of being registered before the accident.

This is an absurd situation which puts every road user in NSW at risk.

An injured person has no way of knowing the mechanical state of an unregistered vehicle immediately before an accident, whether it has any major or minor defects or what damage was done to the car in the collision.

A person hit by an unregistered car while crossing the road would need to have the car inspected and a report prepared stating whether it could have been registered before the accident with minor repairs.

A claim could not be made if the report found there were major defects.

Similarly the accident victim would probably lose their claim if they could not get a report showing that the vehicle had only minor defects immediately before the accident.

On a trip to Goodooga to visit my client and his family I luckily photographed the wrecked vehicle before it was scrapped for metal.
The court accepted expert opinion based on the photographs that the vehicle was roadworthy and could have been registered before the accident and awarded my client more than $2 million compensation.

The nominal defendant appealed the decision, but three judges unanimously rejected it.

If the insurer’s argument had been successful it would have defeated the whole purpose of the Nominal Defendant Scheme.

While the outcome was good for my client it still leaves all other road users in NSW vulnerable.

If I had not taken photographs of the wrecked vehicle, the judgement could well have gone the other way.

I had hoped the Court of Appeal would have ruled Section 33 of the Act covered all unregistered motor vehicles regardless of their mechanical condition.

As the legislation now stands, there is a grave possibility that anybody injured as a result of the negligent driving of an unregistered vehicle with some mechanical defects would not be entitled to receive any compensation.