As well as the legal obligations after an accident, a driver involved in an accident should take the following steps:

In a motor vehicle accident, two kinds of damage (loss) may be suffered. These are:

In recovering compensation for these damages different insurance policies often apply and it is advisable to handle each claim separately. While the extent of personal injuries may be unclear for some time, the cost of repair of a vehicle is usually apparent immediately and the owner will want the vehicle back as soon as possible.

In both cases it is important to realise that there is a limited time in which to commence legal action. In the case of property damage the time limit is six years and in personal injury three years. Both time limits run from the date of the accident.

It is possible to sue initially for property damage only and to sue for personal injuries later, or vice versa.

In any court action for damages a person wanting to make a claim plaintiff must prove that the defendant has been negligent. To show this the plaintiff will need to prove that the defendant owed a duty to take care and breached that duty and as a result the plaintiff suffered loss or damage.

Whether or not the defendant has been negligent will depend on all the circumstances of the accident. Drivers of motor vehicles owe a duty to take care to all fellow road users, their passengers and pedestrians. Some of the more common breaches of the duty to take care are:

The fact that a driver has committed a breach of the road traffic laws does not necessarily mean she or he has been negligent. It is only one of the factors which must be considered. All the surrounding factors at the time of the accident must be considered. If a driver is charged with a criminal offence arising out of the accident and pleads guilty, this can be used as an admission of liability in the civil case. Legal advice should be sought before the criminal case is heard. If however a driver is given an expiation notice and pays the fine, this is not an admission of liability. Anyone in doubt about whether the other driver was at fault should consult a solicitor or get advice from one of our offices or a community legal service.

In many cases, it is impossible to say that only one party was at fault. In such a case, a court can apportion (share) the damages between the parties according to the degree of each one's responsibility. Where a party shares responsibility for an accident, that party is said to have been guilty of contributory negligence.

Contributory negligence occurs in accidents at intersections where, for example, the driver of the vehicle with right of way may be held 25% responsible. This is because every driver is supposed to drive safely in all circumstances. Thus failure to take reasonable steps to avoid an accident (perhaps because of excessive speed) may lead a court to find that the driver is partly responsible for the accident.

In some cases a person may recover 100% of her or his damages (for example, if the car was stationary and was hit by another car) but the possibility of apportionment must be considered.

Apportionment is not determined by some pre-determined rules but instead is dependent upon all the relevant details of the accident. There is no rule saying a person is 10% at fault for being on the road. Anyone unsure as to the extent of each person's fault should consult a solicitor or get legal advice, see contact points.

CONTRIBUTORY NEGLIGENCE

A's car and B's collide at an intersection. Each suffers $500 damages.

A sue B for $500 and B counter-claims (sues A) for the same amount.

B is found 80% responsible and A is 20% responsible.

A gets 80% of $500 = $400

B gets 20% of $500 = $100

'A' will be awarded damages of $400 less $100 = $300. In addition the court may order B to pay legal costs of say $150. This may be insufficient to fully reimburse A for payment to a solicitor. For example, A may have to pay the solicitor $250, leaving only $200 to cover damage to the car. If the cost of B's repairs is higher than A's, A may get nothing.

Compulsory third party (personal injury) insurance is paid when you register your vehicle [Motor Vehicles Act 1959 ]. It covers drivers of your vehicle from claims for compensation by people injured or killed in accidents arising out of the use of the motor vehicle. The aim of the insurance scheme set up by the Motor Vehicles Act is to ensure that every vehicle being used on the road is insured. Allianz administers the compulsory third party insurance scheme for the Motor Accident Commission. A vehicle registered in another state, while not covered under this Act while being used for a visit to South Australia, is covered by a similar Act in the owner's home State.

Where the vehicle involved in the accident which caused personal injury was unidentified or uninsured, the action is taken directly against the Nominal Defendant. This means that a person injured by, for example, a hit-run vehicle can take action and be compensated for any injury even if the vehicle has not been identified. A person injured in a collision with a vehicle known to be uninsured or struck by an unidentified vehicle should immediately seek legal advice. A person injured by an unidentified vehicle must, to successfully claim damages for personal injury, satisfy the court that reasonable steps have been taken to identify the vehicle. The plaintiff must still establish that the injury was a result of the other driver's negligence.

It is only possible to claim damages for personal injury if a person can prove that the defendant has been negligent, see who is at fault?

Any claim for damages for personal injury must be made within three years of the accident. With a claim for damages on behalf of a child the three year period does not commence until the child turns 18 years of age. However, most actions on behalf of infant are commenced and disposed of before then. The action is usually commenced in the name of one of the parents as the 'next friend of the child'. If an action has been commenced on behalf of the child and the claim is settled, that settlement is not operative until approved by a judge of the court in which the proceedings have been commenced.

When claiming compensation for personal injuries arising out of an accident, it is best to seek legal advice. Generally it will not be possible to settle a claim until the extent of the injuries are clear. This may not occur until a person recovers or until the injury stabilises. Depending on the nature of the claim and the seriousness of the injuries, the claim can be dealt with in one of two ways:

If the injuries are minor and there is no continuing disability, it is usually advisable to attempt to settle the claim without going to court. This is done by giving Allianz the relevant information enabling them to assess the value of the claim and to pay an agreed figure. Usually this procedure will bring a quicker settlement. Where proceedings for personal injuries are taken in court, the Magistrates Court will hear claims up to $80 000, the District Court and the Supreme Court both have power to hear and determine claims for unlimited amounts. All actions for personal injury or death arising from motor vehicle accidents are now tried before a judge or a magistrate without a jury.

The first step in making a claim is to contact Allianz who will provide a claim form to be completed.

In assessing the amount of damages to which an injured person is entitled, a number of different categories are recognised.

Claims can be made for non-economic losses, which may include:

No claim exists for non-economic loss unless the person can show that her or his life has been significantly impaired for at least seven days, or that her or his medical expenses exceed $2500.

The compensation payable for non-economic loss is assessed on a scale of 0 - 60 points. A relatively minor injury gains a low rating while the most severe injury will gain a rating of sixty points.

For accidents occurring in 2003 the multiplier increases as the number of points increases. From 1-10 on the scale the multiplier is $1,150 and increases to $6,900 from 50 -60. Before 2003 the multiplier was the same throughout the point range.

Any medical expenses special damages incurred may be claimed. A person suffering on going medical problems may also be able to claim damages for future medical expenses.

Where a person loses income because of injuries there may be a claim for the economic loss. It is not possible however, to claim for the first week off work [Civil Liability Act 1936 , s54] and any claim for loss of future earnings will be discounted by 5%.

A parent, spouse or child of an injured person who gives voluntary service to that person may be able to claim for this service.

A person who has had to wait for a claim to be paid may be able to claim interest. Interest is not paid for non-economic loss or for future losses.

Dependants of a person who has died as a result of injuries received in a motor vehicle accident may be entitled to recover damages against the person responsible [Civil Liability Act 1936 , s24(1)]. Legal action for damages must be commenced within three years of the death and issued by the executor of the estate of the deceased. However the legal proceedings may only be begun in cases where someone else negligently caused the death. The following dependants are able to claim:

Anyone involved in an accident should keep a record and receipts of all payments made resulting from the accident. If not yet paid, the accounts themselves should be retained, either to give to Allianz or to produce in court as proof of the claim.

There is a prescribed limit for medical services and charges. The limits are in accordance with the prescribed limits and services referred to in section 32 of the Workers Rehabilitation and Compensation Act. The insurer may recover from service providers (such as doctors) amounts paid for unnecessary services or charges in excess of the prescribed limit.

As a general rule, an injured person will not be able to finalise an injury claim until her or his injuries have settled down. Often injuries take some time to settle down and the final disabilities will not immediately be apparent. The injured person must rely on medical advice about the disabilities and the advisability of settlement at any time during the action. Once a claim has been settled, the insurance company will obtain a signed Deed of Release from the injured person which will preclude any further action. The injured person must be guided by medical and legal advisers before settling a claim or signing a Deed of Release which will prevent any action in the future.

In settling a claim, the solicitor handling it will be able to advise the exact amount the injured party would receive in compensation. The solicitor's costs and disbursement will have to be deducted and there ma be repayments for medical or hospital expenses, or sickness benefits from Centrelink which have been paid to the injured party whilst unable to work. All these factors must be investigated and considered before a claim is settled.

For a non-economic loss claim a person injured in 2002 must show that medical expenses are at least $2,750 or that the person has been significantly impaired for at least 7 days.

Before agreeing to accept a payment of compensation a person should always consider whether any benefits received will have to be repaid. Examples of benefits that may be recovered from compensation include:

These Government agencies frequently seek refunds of all these payments from people who receive payments from the Motor Accident Commission. This is a significant trap for people claiming compensation and expert advice should always be sought before settling any claim. For example, a person may suffer a minor injury and see a doctor several times, claiming the cost on Medicare. If the injury claim is settled for say $1000, depending on the total medical expenses, much of the $1000 will have to be repaid to Medicare. Other payments may also be recovered such as health insurance claims, depending on the particular fund.

If an injured person was not a wearing seat belt at the time of the accident, their damages will normally be reduced by 25%. The same reduction applies for cyclists and motorcyclists not wearing a safety helmet where there is a causal connection between the failure to wear a safety helmet and the extent of their injuries [Civil Liability Act 1936 , s49].

If an injured driver was contributory negligent and he or she had a blood alcohol reading of 0.08 or more or their ability to drive was impaired due to drugs or alcohol then their damages must be reduced by the prescribed percentage or greater having regard to the extent to which the accident was attributable to their negligence. The prescribed amount is 50% for a blood alcohol reading 0.15 grams or more or 25% in any other case.

A passenger who is injured and who knew or ought to have known that the driver's ability to drive was impaired by alcohol or drugs, will also have any compensation reduced by the prescribed amount [Civil Liability Act 1936 , s47]. A passenger injured when not in a passenger compartment will have their damages reduced by 25%. Similarly, if the driver was inexperienced or unlicensed then the passenger's compensation will be reduced if the passenger was negligent in failing to care for her or his own safety.

The above provisions do not affect a claim by a child under 16 years of age.

Where someone makes a claim and a driver is more than 25% at fault for the accident, the driver must pay a maximum excess of $300 to the Motor Accident Commission. The amount of excess payable is based on the medical expenses of the injured person. If the medical expenses do not exceed $300, then the driver at fault will pay a lessor amount.

If however the driver at fault was driving while so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle, or driving with a blood alcohol level equal to or above 0.15 grams of alcohol per 100mls of blood, the Motor Accident Commission may recover from the driver any money paid and any costs incurred. [Motor Vehicles Act 1959 s.124a(1)]. This is called a Reservation of Rights, and applies against the driver at fault when their reckless actions are no longer covered under the Compulsory Third Party Insurance Scheme. This recovery is sought when the injured person’s personal injuries claim has been settled.

The Motor Accident Commission is also able to recover from a driver, to the extent considered just and equitable given all the circumstances, any money paid by it [Motor Vehicles Act 1959 s.124a(2)] where the driver:

Alternatively the Motor Accident Commission may recover from the insured person (owner of the vehicle), to the extent considered just and equitable given all the circumstances, any money paid by it [Motor Vehicles Act 1959 s.124a(2)], where the insured person:

Owners and drivers have a positive duty on to cooperate with the Motor Accident Commission (the insurer) [Motor Vehicles Act 1959 s124]. The insurer also has the power to compulsorily acquire a motor vehicle for the purposes of the conduct of negotiations or proceedings [Motor Vehicles Act 1959 s125B].

As soon as possible after the accident you should notify your insurance company, even if you have not decided to make a claim.

Resources

The RAA’s website provides an accident report form at: http://www.raa.net/download.asp?file=documentsdocument_73.pdf

Contact points

Legal Services Commission

Legal Help Line: 1300 366 424

RAA Legal Advisory Service

Available for RAA members only

Telephone: 8202 4570

Types of insurance

Compulsory Third Party Bodily Injury Insurance

This type of insurance is paid when you pay for the registration of your vehicle. It covers injury to other people resulting from the liability of an owner, driver or passenger of the vehicle.

Third Party Property Damage Insurance

This type of insurance is not compulsory but it is recommended that every car should have it as minimum cover. Even if your car itself is not worth much money, there is still a risk that if you hit someone else’s vehicle you may be liable for expensive repairs.

Third Party Property insurance covers damage to other vehicles or property resulting when the driver of your vehicle is negligent. This type of insurance does not cover damage to your own vehicle.

It is also possible to get Third Party Property Damage Extension insurance for circumstances where the other person is at fault for the accident, can be identified and is not insured. However, this is normally limited to a certain amount.

Third Party Property Damage, Fire and Theft

In addition to Third Party Property Damage the insured vehicle is also covered for fire and theft.

Comprehensive Insurance

This type of insurance covers third party property damage AND damage or loss to your own vehicle.

If your vehicle is damaged as the result of an accident and you believe the other driver to be at fault you will need to establish the extent of the damages from the accident and how much it will cost to repair these damages.

If you are responsible for damage to the other driver’s vehicle the other driver should contact you in writing to advise you of what the damage is and how much it is going to cost to repair.

If you haven’t been given a copy of the other driver’s crash repair quote or assessor’s report, write to the other driver or insurance company and request it.

The other driver is only required to provide one repair quote. You are entitled to have a fully itemised quote provided so you can check to see that the work being quoted is related to the damage caused by the accident.

The other driver can proceed with repairs prior to getting the money from you. If they decide to wait to recover the money from you before getting any repairs done they must prevent the vehicle’s condition from deteriorating further, and if any deterioration occurs they will be liable for these costs.

The other driver is entitled to payment directly and you cannot insist on paying the money to the repairer yourself.

If the other driver’s vehicle is a write-off, request a copy of a written estimate of its pre-accident value and its value as a wreck from the other driver.

Note: your claim is limited to the amount required to restore the car to its pre-accident condition. You cannot claim for any other damage that was there before the accident and the other driver is entitled to require you to prove that the damage you are claiming was the result of the accident and not pre-existing damage.

How do I write a letter to the other driver/other driver’s insurance company?

It is important to write the words ‘Without Prejudice’ on the top of every letter to the other party (or their insurance company) written for the purposes of negotiating a settlement. ‘Without Prejudice’ means that any statement made in the letter about who caused the accident cannot be used as evidence in court against you unless the other party gets your consent to do so.

The letter needs to provide the following information:

Always keep a copy of any letter sent and make sure each letter is signed and dated.

If the other driver/other driver’s insurance company has made a claim against you you need to decide whether or not you think the amount they are claiming is reasonable. You can only be asked to pay the costs of damage caused by the accident so you do not have to pay for any damage that was there before. However, a number of reasonable costs can be legitimately claimed by the other driver including:

If you do not agree with the amount being claimed you will need to get an independent assessment of the damage but you will require the other party’s permission to do this and must pay for the assessment yourself.

Where an insurance assessor has checked the repair quote or the valuation of a vehicle, it may be difficult to dispute the amount claimed unless it can be established that the other driver is claiming for unnecessary work. For example, you do not have to pay for new panels when second hand would do.

It is usually the case that both drivers are at fault to some extent. You need to be realistic about who caused the accident and any liability you yourself might have towards the damage caused.

It is recommended that you determine how much you were at fault. This could be anywhere from 0% (no fault) to 100% (total fault). There is no simple formula that can be applied and if the matter proceeds to court the court will look at all the circumstances of the accident to decide how much each side was at fault.

Contrary to what some people say, it is possible for one driver to be 100% at fault, although this is usually quite rare. Examples where this would be the case include where a driver runs into the rear of another vehicle or where a driver collides with a stationary vehicle.

The percentage of fault lets you work out how much you and the other driver (or his/her insurance company) will have to pay.

YOU WILL BE PAID THAT PERCENTAGE OF YOUR DAMAGES WHICH IS NOT YOUR FAULT BUT YOU HAVE TO PAY THAT PERCENTAGE OF THE OTHER DRIVER’S DAMAGES WHICH IS YOUR FAULT.

Example:

Driver A is held to be 50% to blame for the accident and the cost of repairs to her vehicle is $1,500.

Driver B then is also 50% to blame and the cost of his repairs is $1,000.

A is liable to B for 50% of his costs (i.e. of $1,000) = $500

B is liable to A for 50% of her costs (i.e. of $1,500) = $750

This means that in practice, B must pay $250 to A. Both drivers owe each other at least $500 so the real amount that will be paid will be any amount in excess of $500. As a result B must pay the $1,000 to repair his own vehicle in addition to $250 towards A’s damage.

Example:

Driver A is held to be 85% to blame for the accident and the cost of repairs to her vehicle is $3,000.

Driver B then is 15% to blame and the cost of his repairs is $4,500.

A is liable to B for 85% of $4,500 = $3,825

B is liable to A for 15% of $3,000 = $450

The difference between $3,825 and $450 is $3,375.

In this case, A must pay for all the damage to her vehicle as well as paying $3,375 towards B’s damage.

B will have to pay the extra $1,125 to have his vehicle repaired.

It is usually better to sort out your claim with the other driver by negotiation rather than by going to court. Going to court may cost more money and is often very stressful.

Even if you go to court and win, the other person cannot be forced to pay more than they can reasonably afford. If the other person is not employed and has no assets, it may be very difficult to recover the money owed to you.

In making the decision as to whether to take the other driver to court you need to consider the financial position of the other person. If the other person is offering part payment or payment by installments it may be better to accept this rather than go to court. You may have to accept a smaller amount of money than you expected to get the other party to pay.

You can start by offering a figure 10% or 20% higher and come down later if you want. For example, if you are advised that the other driver will ultimately be 50% liable, you may suggest they are 60% or 70% liable.

It is easy, particularly for uninsured drivers, to feel intimidated by insurance companies. They often refuse to negotiate at first and often will refuse to admit any liability on the part of their insured driver. It is important not to give up at this point. Keep trying to make offers. Insurance companies prefer to settle disputes out of court just like everyone else. They find it time consuming and more expensive to take a matter to court and will usually negotiate a settlement.

Maintain contact with the insurance company. Always let them know if you change your address or phone number because if they don’t hear from you they will assume that you don’t want to negotiate.

Always keep notes of any conversations you have with insurance company employees and record the date of the conversation.

Keep copies of all letters you send and get legal advice about the extent of your liability before you start negotiating.

Do not pay any money to the other driver or their insurance company until that person has signed an agreement in writing. Also get a signed receipt when you pay.

What you need to do

If you cannot come to a satisfactory agreement and you want the other party to pay for your damage you must go to the Magistrates Court nearest to where the accident took place and fill out the appropriate forms for the matter to be decided in court.

If the amount claimed does not exceed $6,000, the claim is called a minor civil claim. The claim includes the damage to the vehicle and costs reasonably incurred as a result of the accident. Click on the following link for assistance on making a minor civil claim.

If your claim is more than $6,000, seek legal advice.