All drivers have a duty to other road users to take reasonable care. A driver who does not take reasonable care and causes an accident is said to be 'at fault'.
The driver's failure to take reasonable care is called 'negligence'. A driver may be negligent if they are drink driving, speeding, failing to obey a traffic light or sign, or failing to keep a proper lookout.
If the other driver is at fault, it is possible to make a claim against them for the cost of repairing or replacing your car. To succeed, you need to show that the other driver was negligent and they caused damage to your car or property. If a court finds that a driver was negligent, it will usually order them to pay for the damage they caused in the accident. If you, your employee, or someone driving your car was at fault, a claim could be made against you.
If you lose a court case, you may have to pay some of the legal costs of the other party. For more information, see
Sometimes it is not clear which driver is at fault, for example, if you are in an accident with more than one car, it can be hard to work out who is at fault, as each driver may have been to blame for the accident in some way. It can be difficult to start a court case where you don't know who is at fault. If you are not sure who is at fault, you should get
When deciding who is at fault, you should consider the following:
Case study - Joel and Wendy
Joel and Wendy's cars collide at an intersection. Wendy failed to give way and Joel was speeding. Joel makes a claim against Wendy for damages to his car worth $5,000.00. Wendy makes a claim (cross claim) against Joel for damages to her car worth $2,000.00.
At the hearing, the Magistrate first decides that Joel is 60% responsible for the accident and Wendy is 40% responsible. The Magistrate then decides the amounts that each of them are claiming for repairs to their cars are fair and reasonable. Finally, the Magistrate awards Wendy $1200, which is 60% of what she was claiming, and awards Joel $2,000.00, which is 40% of what he was claiming.
Even though the Magistrate decided Joel is more to blame for the accident, the cost of repairing Joel's car is higher. As a result, Wendy has to pay Joel $800.00 (which is $2,000.00 - $1,200.00). She also has to pay for the costs of the repairs to her own car, while Joel has to pay a further $4,200.00 to repair his car.
Sometimes more than one driver may be at fault. When a magistrate decides that both drivers are at fault they will then decide how the fault is shared between the drivers. This is called 'contributory negligence'.
When defending a claim in Court, if you think that the other driver was also at fault, you must state in your Defence form that the accident was a result of contributory negligence. For more information, see
Instructions for filling out a Defence - car accidents.
In a case where there is contributory negligence, what you will get for your claim, or how much you will have to pay for someone else's claim, depends on how much you are to blame for the accident.
Occasionally one or both of the drivers in an accident may be fined or charged with a traffic offence. Even if you don't get a fine or are not charged with an offence, it doesn't mean that you are not at fault for the accident. You should get
legal advice if you are involved in an accident and you are given a fine or you are charged with a traffic offence.
A blameless accident is an accident that is clearly out of the driver's control, so no one is at fault. Examples of blameless accidents may include accidents caused by:
If you believe you were involved in a blameless accident, you should get
If you have an accident involving an animal, you may be able to make a claim against the owner of the animal. For more information, see
Accidents involving animals.
For further information, see
Who is responsible? - Frequently Asked Questions.