Legal defence and claim for damages

If you are insured, you can claim on your insurance.

However, 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.

There are two types of insurance for property damage.

    1. Comprehensive insurance covers damage to your own car as well as damage to other cars and property, regardless of whether you caused the accident or not.
    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 $5000) for damage to your car under the little known Uninsured Motorist Extension (UME) term of your third party property policy.

Common defenses generally fall into two separate categories: legal defenses and factual defenses. Legal defenses are defenses that prohibit a claim based on an existing law or rule. The most common legal defense to a car accident injury case is violation of the statute of limitations. Factual defenses are defenses that are dependent upon the actual specifics of the case, and can include defenses of contributory or comparative negligence and failure to mitigate damages.

The most common factual defenses to a car accident injury claim involve fault – unless the accident occurred in a no-fault state. The defense will often seek to limit their liability to pay by showing that the plaintiff was responsible for causing the accident – either completely or in part. Depending on the state in which the accident occurred, there are varying rules on compensating plaintiffs who are, at least in part, responsible for causing the accident. States typically follow one of two rules: Contributory negligence or comparative negligence

Comparative negligence is a factual defense to a personal injury case. In states that have adopted comparative negligence as a valid defense, each party involved in an incident — whether a party to the lawsuit or not — is assigned a percentage of fault based upon the facts of the case. Once the percentage of fault is assigned, local law will usually dictate what percentage of any verdict may be recovered, and from whom.

Contributory negligence can be a crippling factual defense to a personal injury case. In the handful of states that follow this rule, any party that contributed in any fashion to the incident causing injury is barred from getting compensation from other parties.

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.

The Local Court is divided into two divisions:

  • Small Claims Division for claims up to $10,000.
  • 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.