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Have you crashed your car?

Have you crashed your car cover imageInformation on making or defending claims for damage to your car, both in and out of court.

This information can help if you are not:

  • insured for motor vehicle property damage; or
  • claiming on your insurance.

It will help you in sorting out your claim in or out of court.

However, information in this brochure does not cover everything that can happen after a car accident. If you need further information, seek legal advice.

This information is not for personal injury claims.

All car owners in NSW must have Compulsory Third Party (CTP) personal injury (green slip) insurance. However, CTP does not cover claims for property damage. It only covers claims for personal injury. If you have been injured in an accident, even if you think it was your fault, call the Motor Accidents Authority (MAA) Claims Advisory Service on 1300 656 919 for help with making a claim. You should do this as soon as possible.

For example, the accident must usually be reported to police and your CTP insurer within 28 days. The personal injury claim to the insurer must usually be made within six months.

Hot tip! Make sure you comply with all the time limits.

If you are insured for property damage

If you are insured you can claim on your insurance. There are two types of insurance for property damage.

  1. Comprehensive insurance
    covers damage to your own car as well as damage you do to other cars and property.
  2. Third party property insurance
    usually only covers damage you do to another car or property. However, if the other driver is at fault and uninsured, you are also able to claim (often up to around $5,000) under the little known Uninsured Motorist Extension (UME) term of your third party property policy.

It is your choice whether you claim on your insurance policy. If you make a claim, you may have to pay an excess if you are at fault and may lose your no-claim bonus.

You should discuss the accident with your insurer before you admit responsibility or enter into any negotiations.

It is usually a term of your insurance not to admit any responsibility for either the accident or the extent of the damage caused.

Financial Ombudsman Service (FOS)

If your claim is rejected by your insurer, or the insurer delays in making a decision to pay your claim, you can lodge a dispute at the Financial Ombudsman Service (FOS). Sometimes insurers say things like ‘you can’t make a claim under this policy’. This is a rejection of your claim. You should ask the insurer to put their position in writing and consider immediately lodging a dispute with FOS.

You have two years from the final rejection letter of the insurer, or six years from the date you first became aware of your loss – whichever is the earlier – to lodge your dispute with FOS. If you are in doubt about whether the time limit applies, it is best to just lodge your dispute with FOS.

Summary flowchart of what you should do after a car accident

At the scene
  • Get the other driver’s details.
  • Get details from witnessess.
  • Record scene and vehicle damage.
Call police

Report serious accidents to the police immediately. For a minor accident call the Police Assistance Line within 24 hours on 131 444.

After the accident
  • Collect evidence.
  • Get quotes.
Paying for damage
  • Send a letter of demand.
  • Respond to a letter of demand.
Either : Negotiate

Try negotiating the matter yourself or use a mediator.

Or go to court
  1. If you are the plaintiff, file a Statement of Claim and serve it on the defendant.
  2. If you are the defendant, lodge a defence and/or a Statement of Cross-Claim within 28 days.
At court

Attend the court hearing and argue your case.

The Court’s decision
  1. You lose—the court can order you to pay damages and legal costs.
  2. You win—you pay nothing and most of your legal costs are paid.

Read on for more details about the process outlined in the summary above.

You’ve had an accident...

Whose fault is it?

Any driver who fails to take reasonable care is responsible for damage caused in an accident. It is not always easy to decide; sometimes both drivers are responsible.

Even if the police do not charge you with a driving offence, it does not mean that you are not responsible. There is a difference between a driving offence (criminal responsibility) and responsibility for damage (civil liability).

If you own the car but somebody else was driving it, you can still be responsible if the driver is your agent and was at fault. (eg. a friend was driving while running an errand for you). In this situation, the driver is still equally responsible.

Calling police

You must call police if a:

  • person is injured
  • car needs to be towed away
  • driver fails to stop or fails to exchange details or
  • driver is believed to be under the influence of alcohol or other drugs.

If police do not attend you should report the accident to the Police Assistance Line (PAL) within 24 hours on 131 444.

After the accident

At the scene
  • All drivers must provide their name, contact details, and licence and car registration numbers to the other driver. If you get the registration number, you can find out the details of the car owner through Roads and Maritime Services.
  • Write down information about the other car.
  • Get details from any witnesses.
  • Take notes about the circumstances of the accident and any damage to property.
  • Take a photograph on your camera or mobile phone (eg. of skidmarks or debris on the road) or draw a diagram of the accident scene.
  • Note the time of the accident, place, street lighting, traffic conditions, weather and anything else you think may have contributed to the crash.
  • If police attend they will speak to each driver and witnesses. They may issue an infringement notice. Ask the police for their name and contact details. Later, if required, you can get a copy of the police report.
Collect evidence

If you did not get this information at the scene of the accident, you should collect it as early as possible afterwards. Ask witnesses to write a statement about what they saw. Draw a diagram of the accident. Take photographs of the damage to your car. These can be useful if the case ends up in court. See the list in previous panel for more detail.

Hot tip! Ask witnesses to write their statements before they forget the details.

Get a quote (or quotes) to prove the amount of damage to your car. You can claim the reasonable cost of repairs. If the cost of repairs is more than the cost of replacing your car, then your car will be considered a write-off. If your car is a write-off, get a report on the pre-accident value of the car, less any salvage value. Some motoring organisations provide write-off valuation reports to members for a fee, otherwise contact a loss adjuster or valuer.

Hot tip! Get more than one quote on the damage to your car to assist in negotiations.

You may also be entitled to compensation for other expenses or loss such as towing fees, loss of personal belongings and hire of a replacement vehicle. You can also claim interest if the matter goes to court. 

Negotiating who will pay

If you choose not to claim on your insurance or do not have insurance and you think the other driver is at fault, then you can negotiate about whose fault it was, how much damage was caused and when payment will be made.

If you think the other driver was at fault, write a letter of demand. Ask the other driver to pay for the repairs to your car and any other losses. Attach a copy of the quote. Ask the other driver to respond within a specific time eg. 14 days. Keep your original quote and a copy of the letter.

If you receive a claim or letter of demand it is usually best to respond. If the other driver is insured, you may receive a letter from their insurer. If you believe you are not at fault, write and explain. If you disagree with the cost of repairs, you can obtain an independent quote. If you believe that you are partly at fault, offer to pay a reasonable cost. Write ‘without prejudice’ on the top of any letter so it cannot be used as evidence in any later court case. You can negotiate directly with the other driver or through an independent mediator.

If you do settle, make sure the agreement is written down and signed by both parties. The agreement should be recorded as full and final settlement of the claim, otherwise the payment you make could later be regarded as part payment only.

Going to court

If negotiations fail, your next resort is court action. Think carefully before taking court action. If you lose you may have to pay the other side’s legal costs. Even if you win, you may not be able to recover any money. Also, court action takes time and can be stressful. If you do start court action, you will need to know the name and address of the other party or parties. This is usually the driver but can also include the owner.

Court action for property damage must usually start within six years of the date of the accident. Drivers under 18 must similarly claim within six years from when they turn 18.

Hot tip! Start your action promptly.

An alternative to court action, where the claim is for $3,000 or less and the other party has car insurance, is to lodge a third party uninsured dispute with the Financial Ombudsman Service (FOS) on 1300 780 808. You can lodge your dispute against an insured even after a Statement of Claim has been lodged against you in court (and even if you have filed a Defence). The insurer is obliged to put court proceedings on hold until FOS has investigated the dispute.

The Local Court is divided into two divisions:

  1. Small Claims Division for claims up to $10,000
  2. General Division for claims over $10,000 and up to $100,000

The person who starts legal proceedings is called the plaintiff. The person who is being sued is called the defendant.

Filing claims and cross claims

If you are the plaintiff, fill out a Statement of Claim, setting out the details of your claim. If you are claiming for more than repairs eg. the cost of hiring a replacement car, you may need to get legal advice.

Hot tip! Check out LawAssist for help with writing your court documents.

File your claim at the court. Serve it on the defendant. Court fees are added to the amount of the claim and should be returned to you if you win your claim. Your claim must be served within 6 months of being filed.

If you are the defendant who has been served with a Statement of Claim and you disagree with the claim against you, you should lodge a Defence within 28 days of the date that it was served. A Defence to a claim is usually on the basis that the other driver is at fault (either wholly or partly) and/or the damages claimed are too much. If you miss the deadline to file a Defence, the plaintiff can apply for default judgment. The Court may allow you to set aside the default judgment if you provide good reasons for the delay and the grounds of your Defence.

If you are served with a Statement of Claim and you think that the other party was at fault, you can file a cross claim. File a Statement of Cross-Claim within 28 days. The defendant can also add another party to the proceedings where the other party may also be responsible (eg. employer or owner of the car). This is also done by filing a Statement of Cross-Claim.

At court

You can represent yourself or have a lawyer. People usually represent themselves in the Small Claims Division but they can choose to have a lawyer. The Court does not provide an interpreter for civil claims so you will need to make your own arrangements.

If you cannot attend court, contact the other party and, if they agree, apply to the Registrar for an adjournment. If you don’t turn up, the Court can make court orders in your absence.

Claims under $10,000 are usually heard in the Small Claims Division.

At a pre-trial review the Registrar at the Court will help both parties identify the issues and explore possible settlement. Bring along witness statements and other documents.

If the matter is not settled, the Registrar may refer the matter to mediation or list it for trial.

Hot tip! Use the pre-trial review to negotiate a settlement.
Claims over $10,000 are heard in the General Division.

The first court date in this division is called a callover date. If you are not able to attend on that date, remember to apply for an adjournment (see above).

If you do not attend, an order can be made in your absence.

If the cost of repairs is disputed between the parties, at the callover the Court will require the parties to attend a conference and exchange expert evidence.

Straight-forward cases can be referred to arbitration, which is less formal than a trial before a magistrate. The magistrate may also refer a matter to a Community Justice Centre for mediation.

If your case is not referred to arbitration or mediation, then it will be listed for a trial.

At the trial

The Court must act fairly and give each party a chance to present their case.

Small Claims are heard by a magistrate or an assessor. Small Claims are informal and people often represent themselves. Evidence is usually only allowed in document form. Witnesses usually provide written statements.

General Division proceedings are heard by a magistrate or an arbitrator. The usual way to present a case in the General Division is with documents and with witnesses giving oral evidence.

Giving evidence

Witnesses can only give evidence in relation to relevant facts. Facts are what people directly hear or see and are not mere opinions.

The Court will only hear opinions from experts.

Documents that can be used as evidence include witness statements, photographs, sketches, repair quotes, invoices and diaries.

As plaintiff you must prove:

  • you own the vehicle
  • who the other party is
  • that the other party was negligent and
  • how much damage you suffered.

To do this, you need to briefly describe your claim and provide your evidence. In the General Division, you can ask your witnesses questions (called examination). The defendant can then ask your witnesses questions (called cross examination).

As defendant you can then give your evidence. In the General Division you can examine your witnesses. The plaintiff can then cross-examine you and your witnesses.

When all the evidence has been given, each side can provide a summary of their case and point out any weaknesses in the other side’s case.

Court makes a decision

Most hearings start and finish on the same day and take a few hours. The Court will make a decision and explain the reasons for the decision. This is called a judgment. In complicated cases, the Court may reserve its decision.

The Court will also make orders for costs. Usually, the losing party has to pay the costs of the successful party.

Appealing the decision
Small Claims decision

If you wish to challenge an assessor or magistrate’s decision, you should apply to the District Court within 28 days. Appeals from the Small Claims Division can only succeed in very limited circumstances (involving lack of jurisdiction or denial of procedural fairness).

General Division decision

If you wish to challenge a magistrate’s decision, you should apply to the Supreme Court within 28 days. Appeals need to disclose an error of law or require permission to proceed.

If you wish to challenge an arbitrator’s decision, you should apply to the Registrar within 28 days for a rehearing in front of a magistrate.

Enforcing the court order (getting the money)

The person who is owed money by the court order is the judgment creditor. The person who owes money is the judgment debtor. The court will only enforce an order if requested to do so. Orders can usually only be enforced within a 12 year period.

Examination Notice

The judgment creditor can have the court issue an Examination Notice requiring the judgment debtor to go to court. At court the debtor must tell the creditor all about their income and assets.

A debtor who does not attend can be brought to court by a sheriff.

Garnishee order

The judgment creditor can ask the Court to 'garnishee' the debtor's wages and/or bank account. This is a court order requiring e.g. an employer or bank manager to give the debtor's money to the creditor. Only a portion of wages can be garnisheed. Centrelink pensions cannot be garnisheed.

Writ for Levy of Property

The judgment creditor can obtain a writ of for levy of property. This is a court order that allows a sheriff into the debtor's home to remove and sell items by auction in order to pay the debt. The sheriff may not take or sell:

  • bedroom and kitchen furniture
  • tools of trade to a certain value
  • someone else's goods
  • a car up to a certain value.

If the judgment debt is over $5,000 the creditor can apply to the Federal Magistrates Court or Federal Court to have the debtor declared bankrupt. Anyone who receives a Bankruptcy Notice should seek advice from either a financial counsellor (see below) or lawyer immediately.

For more information and help

  • LawAccess NSW
    Call 1300 888 529 (1300 889 529 TTY) for legal information, referral or in some cases advice.
  • LawAssist
    has more information about car accidents and property damage, including
    sample letters and assistance with writing court documents.
  • Community Legal Centres
    Provide free legal advice and information. Call LawAccess NSW on 1300 888 529 to locate the centre closest to you.
  • Community Justice Centres
    Provide neutral mediators to help both parties find a solution to
    a conflict. Call 1800 007 007 to find the centre closest to you.
  • Credit and Debt Help Line
    Call 1800 808 488 for information about your nearest financial
    counsellor and advice on negotiating with creditors.
  • Financial Ombudsman Service (FOS)
    Resolves disputes between insureds and their insurers, and
    disputes between third party uninsured drivers and insured drivers.
    Lodge a dispute online or by phone on 1300 780 808.
  • Insurance Law Service (ILS)
    Call1300 663 464 for help with insurance disputes.
  • Law Society of NSW
    Call 9926 0300 for information or referral to a private lawyer in your area.
  • Legal Aid NSW
    Legal advice is free from all our offices. Contact your nearest
    Legal Aid office (under L to Z in the phone directory) to make an
    appointment or call 1300 888 529.
  • Motor Accidents Authority of NSW
    Call the Claims Advisory Service on 1300 656 919 for advice on
    how to make a claim for personal injuries compensation or to
    obtain the name of the other driver’s Greenslip insurance company.
  • NSW Police Force
    Police Assistance Line (PAL)
    You can report anything that is not an emergency by calling 131 444
    Insurance Services Unit
    Provides copies of the police incident report. Call 8835 8377.
  • Roads and Maritime Services (NSW)
    For information about registration and licensing of cars and insurer
    details call 13 22 13.

This information is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation.

At the time of updating, the information shown is correct but may be subject to change. If you need more help, contact LawAccess on 1300 888 529.

A print copy of this brochure may be ordered online.

July 2012