Find out how you can avoid paying for damage to your own car if you were involved in an accident that you did not cause.
In Australian motor vehicle legislation, the issue of liability – in other words, who caused the accident – is probably the single most loaded topic. This is because accidents result in expenses that must be paid, sometimes running into millions of dollars, and whoever is responsible normally needs to pick up the bill. If you’re involved in a motor vehicle accident through no fault of your own and your car is damaged or written off, you have several options of receiving a payout from a car insurance claim.
In which scenarios would I be not at fault?
In the field of car insurance, liability is considered exclusively in relation to motor vehicle accidents. There are plenty of other situations in which your car can be damaged through no fault of your own, ranging from vandalism to bushfire or hail. Damage of this kind is usually covered by comprehensive car insurance, but you may still have to pay an applicable excess. When two or more cars are involved, the percentage of liability is often shared between the parties. However, there are some situations in which only one driver is likely to be considered completely at fault.
- Admitting liability at the scene. In the aftermath of any accident, if Driver A says something like “I didn’t see you” or even apologises to Driver B in the presence of witnesses, courts frequently consider this to be an admission of liability and Driver A will automatically be found at fault.
- If one driver is intoxicated. Fault will typically be assigned to a driver who is under the influence of alcohol or drugs, if the other driver is not intoxicated in any way.
- Getting rear-ended by another driver. If someone runs into the back of your car, they will almost always be considered at fault.
- Failing to obey a “give way” or “stop” sign. If it can be proven that the other driver failed to give way to you and you were driving legally, they will usually be found at fault unless there was any action you could have taken to prevent the accident (such as swerving or applying the brakes).
- Running a red light. If another driver collides with you as a result of failing to obey a traffic signal, they will also be found at fault in most cases. Again, if you had any option of trying to prevent the accident, but failed to do so, you may be liable for contributing to the accident due to negligence.
Do I go through my insurer or the insurer of the at-fault driver?
If you are uninsured, the other party is at fault and has insurance, and your claim is less than $5,000, you have the option of opening a Third Party Uninsured claim directly against the other driver’s insurance company with the Financial Ombudsman Service (FOS).
If you have comprehensive insurance yourself, the only situations when you can approach the other party’s insurer directly is if the other driver has died or cannot be located.
Under virtually all other circumstances, your initial point of contact needs to be the driver who is at fault. You have the option of assigning a lawyer to act on your behalf, and if the other driver decides to claim on their insurance, the insurance company will most likely contact you to request information and possibly access to your car so its representatives can make an independent assessment of the damage.
To claim or not to claim?
When thinking about whether or not to claim for an accident in which you’re not at fault, the most relevant factor is whether you can get the other party to pay for the damage. If the liability for the accident can be swiftly and unequivocally determined – and that’s a big “if” – then the best course of action is usually to approach the other driver.
In some cases, for example if the other party is uninsured and cannot pay you for the damage done to your vehicle, it does make sense to claim on your own insurance. If the damage to your car is very minor and you do not have a reasonable option of getting the other driver to pay for it, it’s usually not worth making a claim.
Also, if an excess applies to your policy and the cost of repairing the damage is not much more than your excess level, it might not be worth the trouble of pursuing a claim when you’re unlikely to receive much reimbursement.
Does my level of insurance impact what I can claim?
Comprehensive insurance usually covers you for all types of damage to your vehicle, regardless of whether or not you’re at fault.
If your insurer agrees that the accident was completely the other driver’s fault, you may be entitled to claim under a Third Party Property policy, or if you have a Third Party Fire and Theft policy. Many insurers stipulate that the other driver must not have insurance that can cover the damage to your vehicle for you to make this kind of claim, and the maximum benefit you will receive is usually $5,000. You will usually be expected to provide the other driver’s name, address and registration number.
Not happy with your current insurer? It might be time to switch
What do I need in order to make a claim?
- Record the other driver’s details. Your insurer will need their name, address and phone number, as well as the registration number of the car they were driving.
- Make notes at the scene. Write a brief summary of what took place as soon as possible after the accident. Accounts that are recorded immediately after an incident are called “contemporaneous evidence” and they hold a lot of weight in court.
- Ask witnesses for their contact details. If possible, ask any witnesses present to also jot down their description of what happened at the time of the accident.
- Take photos of the scene. Pay particular attention to not only the damage your vehicle sustained, but the final resting positions of all the cars involved, any skid marks and damage to surrounding objects such as traffic lights. Add GPS tags to your photos if you have the option.
- Submit any footage of the event. If you have a dash cam recording of the accident, this will also be very valuable for your insurer.
Will a claim affect my premium or my no-claim bonus?
In most cases, if your insurer agrees that the accident was caused exclusively by the other driver, you will not be penalised even if you make a claim.
Depending on your level of cover and the specific conditions listed on your certificate of insurance, there may be some circumstances under which your no-claim discount will be affected, even if you have purchased protection against this. Read your product disclosure statement (PDS) and certificate of insurance carefully to avoid any nasty surprises.
Will my car be repaired or written off?
It is up to your insurer to choose whether your car will be repaired or declared a total loss, and that normally comes down to whatever is the cheaper option for them.
If there is any question about whether or not your car can be repaired well enough to be safe to drive afterwards, you have the right to obtain an independent assessment. If you can provide evidence that your insurer is pressuring you to repair a vehicle that would be more safely written off, you have the option of opening a case with the Financial Ombudsman Service.
What happens if my car is written off?
There are two main categories under which your vehicle can be written off and different rules apply for each of them.
- A statutory write-off means that your car will never be safe to drive again, no matter how much repair work goes into it, in which case it cannot be registered again.
- A repairable write-off means that the cost of repairs exceeds the sum insured, and normally your insurer will keep the vehicle and pay you its agreed or market value.
- You can make a request for your insurer to let you keep a repairable write-off, for example if it has sentimental value, and pay you the sum insured less any salvage value.
- Not all repairable write-offs can be legally re-registered, so this is an important point to check before applying to keep a badly damaged vehicle.
How to make a claim
If you do plan to make a claim with your own insurer, requesting a claim form is usually the safest option because you can carefully prepare your answers to all the questions. If your insurer offers the option of processing your claim over the phone, you run the risk of being put on the spot and not answering a question as well as you could have if you’d had the chance to think about it.
- Take your time. Don’t start the claim process while you are still in shock or emotionally upset after the accident.
- Prepare yourself for a phone claim. If you decide to lodge your claim over the phone, think carefully about what you are going to say and keep your descriptions simple, neutral and objective. Remember that the conversation will normally be recorded by your insurer and may be referred to later in the process.
- Refer to your notes. Use the summary you wrote down at the time of the accident to help you answer the questions on the claim form or over the phone.