Last updated 16 August 2016 This chapter is currently under review.
To successfully claim against another person for personal injury or property damage caused by a motor vehicle accident in Queensland, you must be able to show another person was at fault—it is not sufficient to show the other person was insured.
Different laws apply in the other states. If an accident occurs in another state, the law applying in that state will govern your claim.
If a person is convicted of a criminal offence as a result of a motor vehicle accident (e.g. driving under the influence of alcohol, driving without due care and attention), this can be used as evidence in a civil claim but is not necessarily proof of negligence.
Can property damage and personal injuries be claimed separately?
The nature and extent of any property damage caused by a motor vehicle accident is usually readily apparent and can be easily assessed and quantified. On the other hand, the extent and consequences of a person’s injuries may not be obvious for some time after the accident.
It is possible to pursue separate claims for property damage and personal injuries. In all likelihood, the property damage insurer will not be the same entity as the CTP insurer. In any event, care needs to be taken to ensure a decision in the first case does not bind the parties in any subsequent case. For example, a badly injured claimant would not necessarily want a 50/50 apportionment of liability in a related property damage claim to automatically apply to their personal injuries claim.
Consideration of these issues can be very complicated and should be referred to lawyers specialising in these types of claims.
Property damage claims
When a motor vehicle is damaged in an accident, the owner of the vehicle has three choices:
- claim from their own comprehensive insurer
- pay for the cost of any repairs
- claim the cost of the repairs from the party at fault.
Unless the amount of damage is below the policy excess, it is usually advisable to simply refer the claim to your own insurer to handle.
If a vehicle is covered by a comprehensive insurance policy, the following factors will be relevant:
- who (if anybody) was negligent
- the excess applicable on the policy
- the amount of any no-claim bonus
- if the other party is at fault, whether they are insured or have assets sufficient to meet the cost of repairs
- if legal proceedings are to be commenced, the legal costs involved
- the cost of repairs to the vehicle
- the cost of repairs to the other party’s vehicle.
Deciding who was at fault
Deciding whether a driver was at fault (i.e. negligent) can be difficult.
Clearly, a driver who is drunk while in charge of a vehicle is driving negligently if, due to drunkenness, they collide with another vehicle. A vehicle driven at a speed above the speed limit is probably being driven negligently. Failing to stop at a red light or at a stop sign is also, in most circumstances, negligent unless the situation is one of emergency.
In many cases, it is impossible to say that only one party in an accident was at fault. In such a case the court has power to apportion the damages between the parties according to the degree of each party’s responsibility for the accident. Where one party shares responsibility for an accident, that party is said to have been contributorily negligent.
Contributory negligence often occurs in intersection accidents. For example, a driver who fails to give way may be found 90% responsible for an accident, while the driver of the vehicle on the right (who has right of way) may be held 10% responsible. This is because any driver is expected to keep a proper lookout, even when they have right of way.
The possibility of apportionment of responsibility for an accident must always be carefully considered when deciding what action to take.
Excess on the policy
The excess payable under a policy is the amount that must be paid by the insured when they make a claim.
The excess amount will vary between insurance companies. It depends on factors such as the age of the driver and their driving history. If an insured person has made a previous claim, the excess may be increased.
It is possible with most policies to pay an extra premium to remove all or part of the excess.
If a claim is made on an insurance policy and the other party is at fault, your insurer is likely to take steps to recover the cost of the claim from that other party or their insurer. In those circumstances, you may not be required to pay the excess at all or the excess may be reimbursed to you when the claim has been resolved. You should not attempt to take steps to recover the excess yourself from the other party without notifying your insurer and obtaining their specific approval. Otherwise, you run the risk of prejudicing the insurer’s rights and voiding the policy.
In calculating the annual premium, insurers reward owners of motor vehicles who have not made claims on their insurance policies. If no claim is made for a specified time, the insurer will normally lower the premium when the insurance is renewed. Conversely, if a claim is made during the previous year’s insurance, the insurer will increase the premium. Therefore, before making a claim, it is advisable to find out the effect the claim will have on your policy’s no-claim bonus.
Some insurers will permit an insured to keep the no-claim bonus when a claim is made, as long as the accident was not the driver’s fault, and the insurer was able to recover damages from the responsible party.
Financial position of the other party
If the driver of the other vehicle involved in the accident was at fault but is not insured, you will need to find out whether they can pay for repairs. There is nothing to be gained by incurring legal costs to obtain a judgment in court against a defendant who is simply unable to pay. If the other driver was at fault but cannot pay, you should claim against your own insurance policy and let your insurer pursue the other party if it chooses.
If legal proceedings are contemplated, legal costs must be considered.
Although it is possible for a non-lawyer to handle all or part of a claim, it is generally not advisable. If a solicitor is engaged to handle a claim, the legal costs recoverable from the defendant, if the plaintiff is successful, depend on the amount of the claim. Even if the plaintiff is successful in court and obtains an order for damages and costs, it is likely the solicitor’s fees will be significantly more than any recoverable costs.
Costs to repair the other vehicle
As outlined above, it may be that a claimant will have to pay a share of the other party’s damages even if the other party is mostly to blame for the accident.
If the other party’s damages (i.e. cost of repairs) are much greater than the claimant’s, this can cancel out any benefit derived from court action.
Costs to repair own vehicle
When deciding whether it is worth making an insurance claim, you will need to compare the costs of repairs with the excess payable and the value of the loss of the no-claim bonus on the insurance policy. The legal costs of suing might also be an issue. If the cost of repairs to the car is low, it may not be worth claiming on the insurance, and it will usually not be worth engaging a solicitor to act.
Efficient repair of a vehicle
A major benefit to be gained by immediately making a claim on an insurance policy is that the vehicle will normally be repaired with minimum delay. However, the insured will have to pay any excess not covered by the policy before the vehicle will be returned by the repairer.
When a decision is made to sue for the cost of repairs, the insured will normally have to pay for the repairs to the vehicle pending determination by the court. Although the court may award interest on the cost of repairs, if the case is contested by the other party the delay can be considerable (possibly years).
No comprehensive insurance
When a vehicle is damaged in an accident and it is not comprehensively insured, the owner can either pursue a claim against the owner of the other vehicle or simply pay for the repairs.
In deciding which of those two alternatives to pursue, many of the factors discussed above will be relevant. If a vehicle is insured for third-party property damage, this will protect the owner or driver against any liability to pay for damage sustained by other parties.
Where to sue?
Where proceedings are instituted will depend on the amount of damages sought:
For damages up to $25 000, proceedings can be commenced in the Queensland Civil and Administrative Tribunal (QCAT) or the Magistrates Court.
For damages between $25 001 and $150 000, proceedings can be commenced in the Magistrates Court.
For damages between $150 001 and $750 000, proceedings can be commenced in the District Court.
For damages over $750 000, proceedings can be commenced in the Supreme Court.
One advantage of proceeding in QCAT is that costs cannot be ordered against the unsuccessful party, and neither party is allowed to be represented by a lawyer unless QCAT gives leave (permission) and/or both parties agree.
If a claimant did not obtain the other party’s name and address at the scene of the accident, they can conduct a search of the vehicle’s registration number at the Department of Transport and Main Roads. Alternatively, an extract of the police report can be requested if police attended the accident or it was later reported to police.
If the driver of the vehicle at the time of the accident was not the owner, the owner of the vehicle will not potentially be responsible for any property damage caused unless the driver was acting as their agent at the time of the accident. This will only be the case if, at the time of the accident, the driver was doing something for and on behalf of the owner (e.g. the driver was an employee of the owner, and the driver was acting in the course of employment). If the driver was not the agent of the owner, only the driver can be pursued for any damage arising from the accident.
Having formed a view as to who is responsible, the cost of repairs to the vehicle should be assessed by a reputable repairer. A written quote covering parts and labour costs must be obtained. It is not necessary to have two quotes, but it is advisable. If two quotes are obtained, the claim will usually be for the lower amount
Letter of demand
Once quotes have been obtained for repair of the vehicle, a letter of demand should be sent to the other driver. The letter of demand should include details of the accident (e.g. the date, place and vehicles involved) and that the writer holds the other driver responsible for the accident. A demand should be made in the letter for payment of the repairs in accordance with the lowest quote obtained.
Where it is known that the other driver is insured, a letter can also be sent to the relevant insurer enclosing a copy of the quote and indicating that the vehicle can be made available to the insurer for inspection for a specified period of time. The insurer will generally reply, either accepting or denying liability. The insurer will likely want its loss assessor to examine the vehicle if liability is accepted.
If no reply is received from the driver of the other vehicle, or if the insurer denies liability, a decision will have to be made whether to commence legal proceedings. If no reply is received, a formal letter can be sent to the other party advising that, unless the claim is finalised within a set period of time (e.g. 14 days), legal action will be commenced. Copies of any letters sent should be kept as they may need to be produced in future legal proceedings.
Recovering insurance excess
If a claim is made on a comprehensive insurance policy and an excess is payable, this might be recovered from the other party (if they are at fault). Alternatively, the insurer may recover the excess on behalf of the insured. This should be checked in advance.
To seek recovery of the excess, a letter of demand should be sent to the other driver outlining the circumstances of the accident (place, time and vehicles involved). The letter should detail that the owner/driver holds the other driver liable and, therefore, seeks payment of the amount of excess payable under the insurance policy. This letter should only be sent with the knowledge and approval of the insurer as any admissions or representations made in the letter might serve to void the policy.
If payment of the excess is not received, a decision must be made whether to commence proceedings in QCAT. In most circumstances, the amount of the excess will not justify legal proceedings.