96Transport accidents involving unidentified or unindemnified vehicles

96 Transport accidents involving unidentified or unindemnified vehicles S. 96(1) amended by No. 49/2018 s. 9(1), substituted by No. 18/2022 s. 34(1). (1) This section applies if a person is injured or dies as a result of a transport accident involving— (a) the driving of an unidentified vehicle or an unindemnified vehicle; or (b) a collision between a pedal cycle and a stationary unidentified vehicle or unindemnified vehicle that is not a collision with— (i) an open door of a stationary unidentified vehicle or unindemnified vehicle; or (ii) a door of a stationary unidentified vehicle or unindemnified vehicle that is being opened; or (c) a collision in Victoria between a pedal cycle and— (i) an open door of an unidentified vehicle or unindemnified vehicle; or (ii) a door of an unidentified vehicle or unindemnified vehicle that is being opened. S. 96(1A) inserted by No. 18/2022 s. 34(1). (1A) A natural person who could have obtained a judgment against the owner or driver of the unidentified vehicle or unindemnified vehicle in the case of a transport accident mentioned in subsection (1)(a) or (b), or against the person who opened or was opening the door of the unidentified vehicle or unindemnified vehicle in the case of a transport accident mentioned in subsection (1)(c), may recover in proceedings against the Commission a sum equivalent to the lesser of— (a) the amount for which the person could have obtained judgment against the owner or driver of the unidentified vehicle or unindemnified vehicle, or the person who opened or was opening the door of the unidentified vehicle or unindemnified vehicle (as the case requires); or (b) the amount for which the Commission would have been liable if that vehicle had been identified and subject to the indemnity under section 94. S. 96(2) amended by Nos 49/2018 s. 9(2), 18/2022 s. 34(2). (2) Damages in respect of a relevant transport accident can only be recovered if— (a) the person, within a reasonable time after he or she knew that the vehicle was an unidentified vehicle, gave the Commission notice in writing of intention to make the claim, setting out— (i) the full name and residential address of the person who died or was injured and, as appropriate, the full name and residential address of the person seeking to recover damages; and (ii) the date and place of the accident; and (iii) the general nature of the injuries; and (iv) a short statement of the circumstances of the accident; or (b) where notice is not given as required by paragraph (a), the person satisfies the court that the Commission has not been materially prejudiced in its defence to the proceedings for the recovery of damages by any failure of the person to give the notice at the proper time or by any omission or insufficiency or defect in the notice. S. 96(3) substituted by No. 18/2022 s. 34(3). (3) If damages are recovered against the Commission under subsection (1A), the Commission may recover in proceedings against a relevant person— (a) the amount of any judgment or settlement (including the legal costs of the person who commenced the proceedings); and (b) the amount of the Commission's reasonable out of pocket expenses in defending the proceedings. S. 96(3A) inserted by No. 18/2022 s. 34(3). (3A) For the purposes of subsection (3), a relevant person is— (a) if the proceedings in which damages are recovered relate to a transport accident mentioned in subsection (1)(a) or (b)—the owner or driver of the unidentified vehicle or unindemnified vehicle; and (b) if the proceedings in which damages are recovered relate to a transport accident mentioned in subsection (1)(c)—the person who opened or was opening the door of the unidentified vehicle or unindemnified vehicle, but only if the person was the owner or driver of the unidentified vehicle or unindemnified vehicle. S. 96(4) substituted by No. 84/2000 s. 32. (4) It is a defence to proceedings under subsection (3)— (a) in the case of the owner of an unindemnified vehicle, that the vehicle being an unindemnified vehicle was not the result of any default of the owner; (b) in the case of the driver of an unindemnified vehicle— (i) that judgment could not have been obtained against the driver but for this section; or (ii) that the driver had reasonable grounds for believing that he or she had the authority of the owner to drive the vehicle and that the vehicle was not an unindemnified vehicle. (5) A defence under subsection (4) is not available to a driver convicted in relation to the accident of a drink driving offence. S. 96(6) amended by No. 18/2022 s. 34(4). (6) Damages in respect of personal injury or death must not be recovered against the owner or driver of an unidentified vehicle or an unindemnified vehicle, or against a person who opened or was opening the door of the unidentified vehicle or unindemnified vehicle, by a person who may recover an equivalent sum under subsection (1A). (7) If in any proceedings under subsection (3), the court is satisfied that— (a) the amount of a settlement was unreasonable because it was manifestly excessive, the Commission may only recover the amount which in the opinion of the court was reasonable; or (b) the amount of a verdict was manifestly excessive and that the Commission unreasonably failed to appeal it, the Commission may only recover the amount which in the opinion of the court should have been awarded; (c) in its management of the proceedings the Commission unreasonably failed to make use of information provided or a defence suggested by the owner or driver, the Commission may only recover the amount which in the opinion of the court is reasonable. (8) In this section— ***drink driving offence*** means— (a) an offence under section 49(1)(a) of the **Road Safety Act 1986**; or (b) a serious indictable offence within the meaning of section 325 of the **Crimes Act 1958** to which the consumption of alcohol or a drug was a significant contributing factor; S. 96(8) def. of *relevant transport accident* inserted by No. 18/2022 s. 34(5). ***relevant transport accident*** means a transport accident mentioned in subsection (1)(a), (b) or (c). ***unidentified vehicle*** means a vehicle the identity of which cannot be established as at the date of an accident, and which remains unidentified at least until the commencement of proceedings under subsection (1); S. 96(8) def. of *unindemnified vehicle* amended by No. 34/1998 s. 14(c). ***unindemnified vehicle*** means a vehicle in respect of which there is no indemnity under section 94 and no corresponding indemnity under the law of another State or a Territory; ***vehicle*** means a motor vehicle, railway train or tram. S. 96(9) repealed by No. 34/1998 s. 14(d). S. 97 amended by No. 127/1986 s. 102(Sch. 4 item 29.2), repealed by No. 84/1994 s. 41. S. 98 amended by No. 127/1986 s. 102(Sch. 4 item 29.2).