The Law Handbook 2024

Chapter 10.5: Motor vehicle accidents and insurance 969 advise you of the reasons for its decision and provide information about its complaints process. If the insurance company decides that you are entitled to financial hardship assistance, it must work with you to set-up an arrangement that could include: • extending the due date for repayment; • paying in instalments; • paying a reduced lump-sum amount; • postponing one or more instalment payments for an agreed period; or • a combination of the above options. You may also ask for a release, discharge or waiver of the debt or obligation; however, you are not automatically entitled to this. If you are unable to reach an agreement, the insurance company is required to provide details of its complaints process. If the insurance company decides that you are not entitled to financial hardship assistance and your circumstances change, you can make another request for assistance. While assessing your second request, it is at the insurance company’s discretion whether it again puts any debt recovery action on hold. If you disagree with an insurer's decision in relation to financial hardship, youmay request a review through the insurer's internal dispute resolution process. If you are still dissatisfied with the outcome you can lodge a complaint against the insurer with the Australian Financial Complaints Authority (www.afca.org.au/ make-a-complaint) . What is a release? A release is a document signed by parties that ends legal action. The party who began the legal action agrees to drop it, often in exchange for a payment by the other party. In a release, a party accepts an amount of money as full settlement of a matter and agrees that they cannot take any further legal action about the matter. When claims are settled out of court, it is normal for the insurance company or person who is paying the settlement to require the other party to sign a release. You should be careful when signing a release for a claim for property damage. Make sure that the release does not prevent you from making a claim for personal injuries suffered in the accident. It is wise to only sign a release after any reference to a claim for personal injuries is deleted. To delete such text, cross it out and write your initials next to the crossed-out text. Liability and damages Liability and negligence Liability means legal responsibility. Negligence is an act that breaches a duty to take reasonable care and results in loss or damage to another person. In deciding which person’s negligence caused an accident, evidence can be given by the drivers involved in the accident, and by their passengers who saw or heard anything relevant. However, the best evidence is that of independent witnesses, who were not involved in the accident. For example, people in other vehicles or pedestrians may have seen the accident or something relevant to it. Remember, if you are making a claim, you must prove that the other person was negligent. It is necessary to distinguish between a ‘complaint or summons claiming damages’ and a ‘summons to answer a charge of committing an offence’. For example, if the police charge a person with failing to give way to the right, and that person is found guilty, it does not necessarily mean that the accident occurred solely because of that driver’s negligence. If you wish to sue that person for damages, it is possible that the court may still find you to be partly at fault (e.g. by travelling too fast, or not keeping a proper lookout). In the same way, the fact that a person complied with all traffic regulations does not mean they are not in any way to blame for an accident, since it is often necessary to take more care than just obeying the road rules. Damages You must keep your loss as small as possible, and you must prove that the damages claimed were caused by the accident. First, obtain a detailed quote for the cost of repairing your vehicle. It is best to get at least two quotes. If you only get one quote, you must show that the single quote is reasonable, and the repairs cannot be done more cheaply elsewhere. If your vehicle is so badly damaged that it will cost more to repair than the vehicle was worth before the accident, the vehicle is a ‘write-off’. In this situation, evidence must be obtained of what the vehicle’s market value was at the time of the accident. You