Fault
It is not always easy to work out who was at fault in a car accident.
What does fault mean?
All drivers have a duty to other road users to take reasonable care. If a person causes an accident because of their negligence, then they are at fault. A person may be negligent if they did not take reasonable care when they were driving. For example, if you fail to keep a safe distance behind a car travelling in front of you, you may be at fault unless there is evidence to prove the other driver caused the accident.
A driver may be negligent if they:
- drink drive
- speed
- fail to obey a traffic light or sign
- fail to keep a proper lookout.
If the other driver is at fault, you can make a claim against them for the damage and losses resulting from the accident, including the cost of repairing or replacing your car.
Sometimes it is not clear which driver is at fault, for example, where there are three or more cars involved. If you are not sure who is at fault, you should get legal advice.
Contributory negligence
Sometimes more than one driver may be at fault. This is called 'contributory negligence'. If both drivers are at fault in some way, the cost of the repairs should be shared between the drivers.
The amount each driver is at fault may not be equal. For example, if the case goes to Court a Magistrate may decide that one driver is 60% responsible and another 40%. They will then divide up the cost of the damages.
If another driver makes a claim against you and you think that you are both at fault, you should notify the other driver (or their insurance company) that you think there is contributory negligence.
For more information, see Responding to a letter of demand.
 Case study - Joel & 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. Wendy makes a claim (cross-claim) against Joel for damages to her car worth $2,000.
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 $1,200, which is 60% of what she was claiming, and awards Joel $2,000, 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 (which is $2,000- $1,200). She also has to pay for the costs of the repairs to her own car, while Joel has to pay a further $4,200 to repair his car. |
Fines and charges
After an accident, you or one of the other drivers may be given a fine (also known as a ticket, penalty notice or infringement notice) or may be charged with a driving offence.
If this happens to you, it does not automatically mean that you are at fault, but you need to work out what it means for your case. You should get legal advice.
For more information about dealing with the fine, see the Fines topic.
Blameless accidents
A blameless accident is an accident that is clearly out of the driver's control, so the driver is not at fault. Examples of blameless accidents may include accidents caused by:
- a driver's sudden illness, for example, heart attack or stroke
- an unavoidable collision caused by an animal running across the road.
If you believe you were involved in a blameless accident, you should get legal advice.
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.