Legal facts for motor vehicle accidents

24/02/2022

This factsheet contains legal information about motor vehicle accidents for uninsured drivers who are not at fault.  It is not legal advice. The legal information is current as at 24 February 2022.

 

Your rights & responsibilities in motor vehicle accidents as an uninsured driver

What do I do at the scene of a car accident?

  • Write down information about the other car and driver: all drivers must stop and give their name, contact details, insurance details, licence and car registration numbers to the other driver.
  • Get details from any witnesses.
  • Take notes about the circumstances of the accident and any damage to property.
  • Take a photograph or draw a diagram of the accident scene.
  • Note the time of the accident, place, street lighting, traffic conditions, weather and anything else you think may have contributed to the crash.
  • If police attend, they will speak to each driver and witnesses. Police should be called in some circumstances including if a person is injured or trapped.

It is helpful to take a photograph of both the front and back of other driver’s license to ensure you have their current address.

 

What if the other driver does not stop immediately following the accident?

You should try to take down the other driver’s vehicle registration number and report the accident to NSW Police within 24 hours of the accident.

The police can attend and investigate situations where an accident has occurred, and the other driver has failed to stop. The police can also investigate where the other driver has provided false details or attend when the other party has stopped but is refusing to provide details.

If the police will not or cannot provide the driver’s details but if you have the vehicle’s registration number, you can apply to Transport for NSW to find details of the vehicle’s ‘registered operator’.

 

How do I know who is at fault?

Generally, the person who was negligent and did not take reasonable care while driving is at fault.

It is not always easy to decide who is at fault; sometimes both drivers may be responsible. The best way to decide who is at fault at a later date is by taking notes of your version of events and collecting evidence including by getting witness statements and any relevant CCTV footage. You should then seek legal advice about your particular case.

If you own the car but somebody else is driving it, you may be responsible if the driver is your ‘agent’ and was at fault. You should not admit fault at the time of the accident as this might affect your case if you go to court.

 

Should I report the accident to the police?

You must report an accident to the police if:

  • One or more of the drivers was intoxicated (under influence of drugs or alcohol)
  • Someone was injured
  • One or more of the cars had to be towed away from the scene
  • The other driver did not stop to exchange details with you

If the police attend the scene, remember to get the police officer’s name and details and an ‘event number’ so you can request the Incident Report later if needed.

 

⚠️ Is the other driver insured?

Different outcomes will apply depending on the insurance status of the other party involved in the car, motorcycle or motor vehicle accident. Click below for specific legal information relevant to the insurance status of the other driver.

If you are not at fault & the other party is UNINSURED

What am I entitled to?

The usual damages you are entitled to are:

  • The reasonable cost of repairs for the damage or the market value of the car (whichever is less),
  • Towing costs and
  • Demurrage (such as hire car costs, lost wages or profits) for income-earning cars.

The costs claimed must be limited to what is reasonable and you must act reasonably to mitigate your losses.

 

Who do I pursue?

You will need to pursue the other driver and/or owner of the other car. If the driver and owner are not the same person, you should seek legal advice.

 

Should I pay for repairs before I receive money from the other driver?

You can choose to pay for the cost of the repairs yourself and recover the money from the other driver after the repairs have been carried out. Keep records and receipts as evidence. You must show the other driver that the repairs were fair and reasonable in the circumstances, and that the repairs were undertaken in relation to the damage caused by the accident only.

 

I can’t afford to have my car repaired. Can I ask the other driver to pay my costs before I have it repaired?

Yes, you can choose to recover the costs from the other driver before any repairs are carried out and use that money to pay for the repairs. It would be good to get two or three written quotes from different mechanics as this may help show the other party that the amount you are asking for is not excessive and is fair and reasonable.

 

Can I claim for the cost of a hire car?

In some instances, it is possible to claim back the cost of a hire car if you are unable to drive your damaged car.

You will need to show that the hire car cost is ‘reasonable’. Consider:

  • Does the hire car reasonably meet your needs? If your car is used mainly for domestic needs, consider whether the hire car will be suitable.
  • Is the amount of time you used the hire car reasonable?

It is important to seek legal advice before obtaining a hire car.

 

How do I ask the other driver to pay for the cost of the repairs?

You will need to obtain quotes from a mechanic to determine the costs of repairing the damage. You should then communicate directly with the other driver via a letter of demand and provide them with a copy of the quote or quotes and ask them to pay the amount specified. Give them a reasonable period of time to respond.

 

The other driver has offered to only pay some of the quote. What should I do?

It is important to carefully consider whether you will accept the other driver’s offer to pay even if the amount is not the whole amount indicated in your letter.

If you do settle the matter, each driver involved should sign a deed of release or terms of settlement which includes a record of the agreement, the date and location of the accident and a statement noting that the agreement is made ‘in full and final settlement’ of each person’s claim if you want no further claims to be brought in the future.

 

I have sent a letter of demand to the other driver, and they still have not paid. What are my options?

If the other driver does not respond to your letter of demand, you can consider sending a second letter of demand or invite them to mediation to settle the matter without going to court.

Alternatively, you may consider bringing a claim in the Local Court.

You should carefully consider the stress, delay and costs associated with legal proceedings and decide whether these factors are justifiable in relation to the debt. Even if you are successful in court, it is important to consider whether the other party can pay the debt as the court will not be able to enforce payment if the other driver does not have the means to pay.

 

I want to submit a claim to the court. How can I do this?

You must commence court action within 6 years from the date of the accident.

Before you commence proceedings, you should determine which court is suitable. The Local Court Small Claims Division deals with claims under $20,000 and the General Division deals with claims between $20,000 and $100,000. The District Court or the Supreme Court can deal with claims for more than $100,000.

It is important to seek legal advice about your claim before you lodge a Statement of Claim.

If you are not at fault & the other party is INSURED

The other driver is insured but they have not submitted a claim. Will their insurer still cover the damage to my car?

You are unable to ‘claim’ on the other driver’s insurance (the only exception is where the policy holder has disappeared or died). The insurer will not pay for the damage to your car unless the policy holder claims on their policy.

If the driver does not submit a claim at all, you will need seek payment directly from the driver and/or owner of the vehicle.

 

If the other driver has insurance and has claimed, will their insurer cover the damage to my car?

This depends on different factors including the type of insurance taken out by the driver as well as the extent of the other driver’s liability for the damage to your car. If the other driver’s insurer admits fault, you may be entitled to receive compensation for reasonable losses from the insurer.

 

The other driver is at fault, but the insurer still won’t cover the damage to my vehicle. Why is this the case?

In order to claim on a policy, the insured driver will need to satisfy any conditions of the policy before the insurer will pay. Further, the insurer will not pay for damage caused where the policy holder has committed a breach of the policy such as where the driver was under the specified age limit, where the driver had a blood alcohol reading above the legal limit or where they failed to pay their premiums. In these circumstances, you will need to pursue the driver directly.

If the other driver has not or cannot pay their excess, you should seek legal advice. Sometimes insurers will reach an agreement that their insured will pay by instalments or that they will deduct the excess from the claimed amount. You should consider whether this option is worthwhile in the circumstances by having regard to the amount you are seeking from the insurer relative to the excess sum which will be deducted.

 

I believe I am not at fault, but the other driver’s insurer has not admitted fault. How can we resolve this?

If both parties believe the other driver is at fault, a dispute as to fault arises. If the dispute cannot be negotiated and settled with the other driver or their insurer it may need to be determined by a court having regard to the applicable road rules and the available evidence including photos, videos, damage reports, witness accounts and skid marks on the road.

Alternatively, you can make a claim to the Australian Financial Complaints Authority (AFCA) if:

  • You are not at fault;
  • The damage is less than $15,000; and
  • The other party is insured and claims on their insurance OR the other party has died/cannot reasonably be located.

 

The other party’s insurer wants to assess my car. Do I have to allow this?

It depends and you should seek legal advice. You need to check the terms and scope of why they want to assess your car. You should refuse if there is a risk your car will be written off and you do not want this to occur.

If you are at fault OR partly at fault

This factsheet is designed for uninsured motorists who are not at fault.

If you have been served a Statement of Claim, time is of the essence as you have 28 days to file a response. Please seek legal advice.

Last Updated: 24 February 2022

This fact sheet is for information only for uninsured motorists who are not at fault. It is not legal advice. It is recommended that you get legal advice about your particular situation.

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