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Motor Vehicle
Once you have millions of people driving around in motor vehicles, it is inevitable that some of them are going to run into others or into stationary objects, causing damage to the motor vehicle being driven and to the other motor vehicle or stationary object.
In Australia we have compulsory insurance to cover claims by people who are injured in motor vehicle accidents but there is no compulsory insurance for damage to a motor vehicle.
People who own motor vehicles have three choices. You can take comprehensive insurance which covers you for damage to your own motor vehicle and any other motor vehicle or stationary object which you hit. That's what most people do.
A small percentage of people simply take third party property damage insurance. This covers you for damage to any motor vehicle or object which you hit but it doesn't cover you for damage to your own motor vehicle.
Another small percentage of people take no insurance cover at all. That is a real problem if your vehicle is damaged through the negligence of one of these uninsured people. People generally don't take insurance cover because they can't afford it and that means that it will probably be very difficult to enforce any judgement which you get against them. The old adage "you can't get blood out of a stone" means that you would have to think very carefully about incurring legal costs claiming damages from someone who is uninsured.
Who is responsible?
When vehicles are damaged, who is responsible? The answer is that there are a detailed set of road rules which are known in NSW as the NSW Road Rules. Because of attempts at standardisation, the Road Rules are similar in each state and territory in Australia but there are some local variations, such as the rules in Victoria about making a right-hand turn where there are tramlines.If you breach the Road Rules, you will be responsible. If the other driver also breached the Road Rules then it is up to the court to decide who was most to blame. If the court decides that the accident was 60% your fault then you will be liable for 60% of the total damage bill and the other driver will be liable for 40%.
Although the ordinary laws of negligence apply - a driver is expected to exercise the same care as any reasonable driver - in practice, the act of negligence is normally simply the failure to obey the Road Rules.
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When will insurance companies pursue a claim?
If you are insured then, no matter who was at fault, normally you will simply claim on your insurance policy and leave it to the insurer to pursue a claim against the other driver. If the other driver was also insured, then your insurer won't pursue the claim because most insurers have in place a "knock for knock" agreement. They don't bother to claim against one another and it averages out. On average 50% of the time the accident will be the result of the negligence of the driver insured by the NRMA and 50% of the time the accident will be the result of the negligence of the driver insured by the other insurance company. So there is no point in their incurring legal costs in pursuing claims against one another.If however the other driver is uninsured and it was partly or wholly his or her fault, the insurer may well pursue the claim, partly to recover damages and partly to send a message that it is a good idea to have insurance cover. If that happens, you may be called to give evidence as a witness. Under your insurance policy, you are obliged to cooperate and assist your insurance company in pursuing any such claim, by making yourself available to make a statement to their investigator and by giving evidence if required.
When would you seek legal assistance?
If you yourself are uninsured and you have an accident caused by the negligence of someone else then you will have to consider whether to incur the cost of engaging a lawyer to assist you in recovering the cost of repairing your motor vehicle and replacing any damaged items.Unfortunately legal assistance is not cheap. It is expensive to run a legal office and to stay in business, legal offices have to be run at a profit.
Whether it is worth seeking legal assistance really depends on the extent of your damage. If you have suffered $750 worth of damage to your motor vehicle then you would have to think carefully about engaging a lawyer at a typical cost of $250 per hour. Obviously the legal costs can quickly mount up to more than the amount in dispute.
If, on the other hand, your motor vehicle has been written off and it's worth $10,000, then it's worth engaging a lawyer to pursue the claim.
If you are successful then you will not only recover damages but also legal costs from the person who caused the accident or his or her insurer. Typically our clients recover about 70% of their legal costs. This means that if you have a legal bill of $2000 by the time the matter is finalised, you will still be paying $600 out of your own pocket even if you win and obtain a costs order from the other driver.
The most important thing in pursuing a third party property damage claim is to receive good advice right from the start as to who was at fault. If you pursue a damages claim and fail, you will be paying not only your own legal costs but probably also 70% of the legal costs of the other driver or his or her insurer.
Our expertise
We have lawyers who specialise in this area and who will be able to give you a very good idea, usually in the first interview, as to whether the claim is or is not worth pursuing.The time limits which apply in personal injury claims do not apply to property damage claims. Under the Limitation Act you have six years in which to commence proceedings - six years from the date when the cause of action arose, which basically means from the date of the accident.
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