Decision
QBE Insurance (Australia) Limited v Luck [2026] NSWPIC 615
Sixty-Second-Or-Less Summary
A Claimant loses control of his vehicle on a bend in the road. He blames his loss of control on an unidentified vehicle which he alleges collided with the rear of his vehicle.
Is the Nominal Defendant liable for his claim for damages under common law?
In QBE v Luck, a PIC Member found that the Nominal Defendant was not liable because the evidence failed to corroborate the Claimant’s account that there was another, unidentified vehicle involved in the accident.
Principles
✅ In Nominal Defendant claims, the onus is on the Claimant to demonstrate that an unidentified vehicle was involved in the accident.
✅ The onus is also on the Claimant to demonstrate that the driver of the unidentified vehicle owed the Claimant a duty of care, breached that duty and that the breach caused them injury, loss or damage.
Facts
The Claimant was involved in a motor accident on 14 October 2018. In general terms, the Claimant alleged that an unidentified vehicle collided with the rear of his vehicle, causing him to lose control of his vehicle and travel onto the incorrect side of the road, where a head-on collision occurred with another vehicle.
The Insurer, as agent for the Nominal Defendant, denied liability for damages under common law on the grounds that the Claimant failed to establish that an unidentified vehicle was involved in the accident.
The Member’s Decision
The Member found that the Nominal Defendant was not liable for the following reasons:
🟪 Other than the Claimant’s statement that he heard a loud bang before losing control of his vehicle, there was no other evidence to support the involvement of an unidentified vehicle.
🟪 When asked, at hospital, how he lost control of his vehicle, the Claimant said that he did not know and indicated that one possibility was at another vehicle hit his vehicle and that another possibility was that “something broke”.
🟪 A witness travelling beside the Claimant indicated that there were no other vehicles near the Claimant’s vehicle and surmised that the Claimant lost control because he was travelling too fast around a bend.
🟪 Other witnesses to the accident mentioned no other vehicle in their statements.
🟪 It followed that the Claimant failed to discharge the onus of proving that his loss of control was caused by the involvement of an unidentified vehicle.
My Perspective
The decision in Luck provides a useful example of how a PIC Member might determine a Nominal Defendant claim. The fact that the Claimant alleges that an unidentified vehicle was involved in the accident is (quite obviously) insufficient to demonstrate that the Nominal Defendant is liable. A PIC Member will typically look at all the evidence to determine whether the Claimant’s account is verified. If there is no evidence to support the involvement of an unidentified vehicle, the PIC Member may determine that the Claimant has failed to discharge their onus.
PJH
I never use AI when writing my case notes. The purpose of this case note is educational and should not be relied upon as legal or financial advice. My commentary is only current as at the time of publication and is only relevant to motor accident claims in NSW. Readers affected by the issues raised in this case note should seek bespoke legal advice, noting that I act for CTP Insurers and I do not accept direct instructions from those injured in motor accidents.