Being involved in a motor vehicle is traumatic – especially if you are injured! It is an unexpected and confronting scenario that many people thankfully never experience. But if you are involved in an accident, it is important to understand that there is a legal framework that applies to determine who is responsible for the motor vehicle accident and the consequences of that.
Determining Fault in a Car Accident
While you may have your own view of who is to blame for your motor vehicle accident, there are only two legitimate arbiters of fault – the police and the courts. If you believe that you were not at fault (or that the other driver was predominantly at fault), it is important that you ensure that the police are notified at the earliest opportunity – preferably at the scene of the motor vehicle accident – so that your version of relevant events and opinions can be officially recorded. If a personal injury or property damage claim results from a motor vehicle accident, the responding insurer will generally rely heavily on the recorded findings of the police with respect to the accident.
Did Someone Run a Red Light?
If the other driver ran a red light, they’re likely at fault. However, proof of this will often come down to CCTV, witness evidence and traffic signal data. So, it is best to ensure the matter is reported to police, as they are best placed to secure all of this evidence.
Did You Admit Guilt?
It is normal for people to feel some level of guilt in relation to a motor vehicle accident. People naturally feel “perhaps the accident would not have occurred if I had done this or that….”
However, section 43 of the Motor Accident Insurance Act 1994 (Qld) provides that an insured person (which is you, if you are driving a registered motor vehicle), must not make an admission of liability on a claim without their (compulsory third party -CTP) insurer’s written agreement. The exception to this requirement is that you can provide a police officer with information reasonably required in order for them to prepare their motor vehicle accident report.
So, despite any nagging feelings of regret or cuplability, you should avoid saying anything to anyone which could be interpreted as you accepting any responsibility or liability for the motor vehicle accident.
Claiming Insurance When Not at Fault
If you’re not at fault, you have options for bringing claims for compensation if you have suffered injury and/ or property damage to your motor vehicle and personal effects in the vehicle.
For property damage, you can file a claim with your comprehensive insurer (if you have one) or the at-fault driver’s comprehensive insurer (if they have one). If you have comprehensive insurance, often your insurance company will handle the claim and seek reimbursement from the other driver’s comprehensive insurer or the other owner/ driver personally, simplifying the process for you.
For personal injury, your claim will be against the CTP (not comprehensive) insurer of the at-fault motor vehicle.
The CTP insurer is ascertainable from a point-in-time registration search. Most motor accident compensation lawyers have access to the relevant registration database to find this out.
The process of making a motor vehicle accident compensation claim is dealt with in another of our blogs.
What If No One Is at Fault?
Regardless of your own opinion, the opinions that matter are those of the police and the courts (in the event that a claim proceeds that far). Even if you have concerns that you might have been more than a little to blame for the motor vehicle accident, you should speak with a motor accident claim lawyer who can obtain access to the police accident report (or trigger one to be prepared) and review independently who is likely to be determined to be at fault and whether you have a viable claim for compensation.
What To Do After a Car Accident
Step 1: Notify the Police
Step 2: Gather Information About the Accident
Collect the following details:
Vehicle Details: Make, model, colour, and registration details of the vehicles involved.
Personal Details: Full names and addresses of the owners and drivers of each vehicle.
Witness Information: Contact information for any witnesses.
Documentation: Photos of the accident scene and vehicle damage, including any skidmarks or other relevant road or area features, such as nearby road works or obstructions to view or vehicle path.
Traffic Accident Report: Obtain a copy if the police investigated the accident. To get this, fill out an application and pay a fee by contacting CITEC Confirm at 1800 773 773 (toll-free) or visiting their Queensland Police reports page. With a signed authority, a motor accident compensation lawyer can obtain this report quickly.
Step 3: Determine Who Caused the Accident
Identify the responsible party. Guidance for this can initially be obtained from the police report – the police will list the at-fault driver/ motor vehicle as “Unit 1”; will include the available witness statements about what they saw and the cause of the accident and indicate whether and what traffic offences should be issued and to whom. An experienced motor accident compensation lawyer will also be able to assist in identifying the at-fault driver or indicate what the likely liability apportionment between drivers might be (if a claim was to proceed).
If the other driver caused the accident, here are your options:
Claim on Your Insurance: If you have comprehensive insurance, make a claim to cover the property damage. Your insurer will handle negotiations with the other owner/ driver or their comprehensive insurer.
Claim Against the Other Driver: If you have suffered personal injuries in the motor vehicle accident, you can make a claim for damages against the at-fault driver, which will be responded to by their Compulsory Third Party (CTP) insurer.
If you do not have comprehensive insurance and suffered property damage to your motor vehicle and personal effects in the motor vehicle accident, you can make a claim against the other at-fault driver. If the at-fault driver has comprehensive insurance, then their insurer will respond to your claim. If the at-fault driver does not have comprehensive insurance, they will have to meet your property damage costs personally.
A motor accident compensation and property damage lawyer can assist you with a personal injury and property damage claim, regardless of whether the claim is against an insurer or the at-fault driver/ owner personally.
Step 4: Notify the Other Driver of Your Intent to Claim (property damage)
If you do not have comprehensive insurance (and have no insurer acting on your behalf), you should send a letter to the other at-fault driver indicating your intention to claim damages for property damage. This is important, especially if obtaining repair quotes for your property damage will take time. The other driver at-fault driver should forward this letter to their insurer if they have one or otherwise respond themselves.
Step 5: Obtain a Repair Quote and Calculate Your Claim
Get a repair or replacement quote for your vehicle and any other damaged or destroyed personal effects you are claiming for. One quote is typically sufficient unless disputed. Your total claim should cover:
Repair costs to restore your vehicle to its pre-accident condition.
Any towing fees incurred.
If your vehicle is written off, claim the vehicle’s wholesale value plus towing fees.
- A copy of the purchase invoice or insurance replacement value for any damaged or destroyed personal effects, such as watches and jewellery, computers, mobile phones and tablets and cameras.
Step 6: Contact the Responsible Party and Attempt to Negotiate
Send a letter of demand to the at-fault driver or their comprehensive insurer (if they have one), including copies of quotes and receipts. Keep copies of all correspondence. A motor vehicle property damage lawyer can assist in drafting and sending these documents to ensure they are legally sound and that recoverable items are not missed.
Step 7: Reaching an Agreement
We have already warned above about the issue of making unauthorised admission of fault/ liability in relation to your motor vehicle accident. Accordingly, if you are intending to make both a personal injury and property damage claim, it is prudent for you to have a motor accident compensation and property damage lawyer assist you with property damage negotiations to ensure that any discussions and settlement are appropriately conducted and documented.
Even if you only intend to make a property damage claim and not a personal injury claim, you still need to take care not to make any admissions – the other driver may intend to make a personal injuries claim against you, and your CTP insurer will not be happy if you have made any unwise concessions of fault simply because you do not think it will affect you personally.
If your property damage negotiations stall, it might be quicker and easier to involve a property damage lawyer to represent your interests and negotiate more effectively on your behalf – and if all else fails, they can guide you through the process of litigating to recover your property damage.
Step 8: Consider Legal Action if Necessary
Document everything meticulously. Whether you are intent on self-representing or ultimately engage a property damage lawyer, the documentation you rely on and any exchange of information, representations and negotiations need to documented and available for any litigated hearing. Consulting with a property damage lawyer is worthwhile to determine whether your claims are legally and commercially viable and the best legal way forward to resolve your claim.
Step 9: Prepare Written Statements and Evidence
Prepare a detailed written statement of the accident and gather witness statements. Include:
Witness’s name, age, address, and occupation.
A detailed account of the accident.
Date, time, and location.
Road and weather conditions.
Vehicle speed and any observed skid marks.
Damage to the vehicles.
Your Property Damage Legal Options After a Car Accident
After a car accident, understanding your legal options regarding property damage is crucial. Whether your claim falls under the Queensland Civil and Administrative Tribunal (QCAT) or the Magistrates Court, taking the correct steps can significantly impact the legal and commercial viability of your case.
Queensland Civil and Administrative Tribunal (QCAT)
For claims up to $25,000, QCAT offers a low-cost way to settle smaller property damage claims without lawyers (though they’re allowed in some cases). But doing it alone can be risky. The absence of a lawyer could lead to:
Weak Case Presentation: Legal jargon is a minefield. You might miss crucial details that impact your claim.
Missed Deadlines & Errors: Legal procedures are unforgiving. Mistakes can lead to dismissals or unfavourable rulings.
Negotiation Nightmare: Lawyers have the expertise to negotiate effectively, potentially leading to better settlements.
Magistrates Court
For property damage claims up to $150,000, the Magistrates Court provides a more formal process, allowing for legal representation. Here’s a brief overview of the steps involved:
Prepare Claim Documents: Fill out the required court forms detailing the accident and your property damage losses.
Lodge Your Claim: Submit the originals and copies with a fee to the QCAT registry.
Notify the Other Party: Serve them with a copy of your claim forms.
Attend Mediation: Bring all your evidence to support your case.
While this process is structured, the complexities involved make it highly beneficial to have a lawyer on your side. Legal representation ensures that:
Your Case is Thoroughly Prepared and Presented: Lawyers ensure all necessary details and evidence are included.
Procedural Compliance is Maintained: Avoid costly mistakes that could jeopardise your case.
Professional Negotiation: Lawyers can often secure more favourable settlements due to their expertise.
Frequently Asked Questions
Do I need to handle everything myself if I hire a lawyer?
No. When you hire a lawyer after a not-at-fault accident, they’ll handle most of the legwork, including negotiating with insurance, gathering evidence (though you can help collect details), and completing paperwork. Your lawyer will guide you through what information they need from you, but they’ll take care of the complexities of the case.
Do I have to pay an excess for an incident if I’m not at fault?
Generally, if you are not at fault, you should not have to pay an excess. Your insurer may recover this cost from the at-fault driver’s insurer.
What happens if the other driver isn’t insured and is at fault?
If the at-fault driver is uninsured, you may need to rely on your own insurance policy or take legal action to recover costs.
Does my level of insurance impact what I can claim?
Yes. You will have CTP insurance on your motor vehicle if it is properly registered. CTP insurance, however, only covers for personal injury of people injured by your motor vehicle or in your motor vehicle if the driver (of your vehicle) is at fault.
You can also take out varying levels of comprehensive insurance from basic fire and theft cover to full comprehensive cover where you can claim for property damage caused to or by your motor vehicle even if you/ the driver is at fault.
Should I get my car repaired before or after I take legal action?
You are going to have to repair or write off your damaged motor vehicle either way. However, how you approach repair of your motor vehicle, hire of a replacement vehicle, and repair or replacement of personal property and effects from the accident will likely depend on whether the at-fault driver has insurance, the financial resources to pay your property damages, and whether they are prepared to pay you without litigation.
In any event, you should document everything – take detailed photos of all the accident damage from as many angles as possible, keep all repair quotes, invoices and receipts, and locate original purchase receipts (or recent insurance valuations) for personal effects needing repair or replacement.
