Whether to Sue
After a vehicle has been damaged, a person generally has three options:
- claiming on their own policy;
- paying their own costs of repair; or
- demanding payment from the other party, and suing them if necessary.
In deciding what to do, a number of factors must be considered, including whether or not the person is insured, and if so, what type of policy they have.
Who Was At Fault?
Deciding whether or not another driver was at fault (that is, negligent) is often quite difficult. Clearly, a driver who is drunk is driving negligently if they collide with another car because of their drunkenness. A vehicle being driven at a speed above the speed limit is probably being driven negligently. Failing to stop at a red light, or stop sign, is also obviously, negligence. However, negligence means the failure to act reasonably. A person who is in doubt whether or not the other driver is at fault, should get legal advice.
In many cases, it is impossible to say that only one party was at fault. In such a case, a court can apportion (share) the damages between the parties according to the degree of each one’s responsibility under the Wrongs Act 1954 (Tas) (s4). Where one party shares responsibility for an accident that party is said to have been contributorily negligent.
Financial Position of the Other Party
If the other vehicle was not insured, it is important to find out whether the party responsible can afford to pay for repairs. There is nothing to be gained by incurring legal costs in court against a defendant who is simply unable to pay. In such a case the person’s best course of action is to claim on their insurance policy, or pay for their own repairs if they are not insured.
If the person decides to sue for damages, they must consider legal costs. It is possible to handle all or part of such a claim themselves to minimise costs, but in many cases this may not be advisable especially where the claim is defended. If a person does instruct a lawyer to handle their claim, legal costs are recoverable from the defendant if they are successful, but a solicitor may be entitled to charge more than the losing party is ordered to pay (as ‘solicitor to client’ costs). If the person chooses to sue in the Small Claims Court, where the claim does not exceed $5,000, no lawyers are involved, and therefore costs are minimal. Losing and winning parties cannot normally claim costs.
Contributory negligence occurs in accidents at intersections where, for example, the driver of the vehicle with right of way may be held 25% responsible. This is because every driver is supposed to drive safely in all circumstances. Failure to take reasonable steps to avoid an accident (perhaps because of excessive speed) may lead a court to find that the driver is partly responsible for the accident. In some cases a person may recover 100% of their damages (for example, if the car was parked at the side of the road and was hit by another car). But the possibility of apportionment must always be considered.
A’s car and B’s car collide at an intersection. Each suffers $1500 damages. A sues B for $1500 and B counter-claims (sues A) for the same amount. B is found 80% responsible and A 20%.
A gets 80% of $1500 from B = $1200
B gets 20% of $1500 from A = $300
A will get damages of $1200 less $300 = $900. In addition, the court may order B to pay legal costs of $350 but A may have to pay a solicitor $500. In this situation A will end up getting $750, half the cost of repairs to the car.
Thus the driver of the first car may have to pay a share of the other party’s damages even if the driver of the second car is mostly to blame for the accident. It can be that these damages (that is, cost of repairs) are much greater for the second car, which can cancel out any benefit to the driver of the first car.
A’s repairs cost $1000, B’s repairs cost $4000. The court decides A is 20% responsible and B is 80% responsible.
A gets 80% of $1000 from B = $800
B gets 20% of $4000 from A = $800
Thus A’s damages and B’s damages cancel each other out. A has to pay lawyer’s costs and the $1000 for repairs. In such a situation it is obviously not worth suing.
Before deciding whether to sue, it is necessary to compare the costs of repairs with the excess and loss of the no-claim discount on the insurance policy. Legal costs must also be considered. If the cost of repairs to the car is small (say, under $1000), it is often not worth claiming on insurance, or getting a lawyer. A person can, however, handle a claim against the other party themselves and they may still get some compensation.
Poor Repair Work
Sometimes repair work leaves much to be desired. It is a good idea to take the vehicle to the RACT for an inspection and test if possible. If not, the owner should check it carefully themselves, especially paintwork and chassis alignment. If the work is not up to standard, they should inform the repairer and ask them to fix it. If the repairer refuses, the person should report the matter to the Office of Consumer Affairs or get legal advice.
Expenses Other Than Repairs
The owner of the vehicle can claim the cost of hiring another vehicle if it was reasonable to hire a replacement vehicle, for example, if the vehicle was essential to earn income. The obligation rests upon the person making the claim to show that the hiring charges were reasonable, and were for a vehicle comparable to the one damaged. In some cases, wages or profits lost may be claimable (for example, a taxi driver’s net income during the period the taxi was being repaired when no replacement vehicle could be obtained can be claimed). A person should get legal advice if they wish to take action for loss of this nature.