Who is to blame?
When you have an accident an insurance company will decide who is to blame. How we use blame is slightly different to how insurance companies use blame. To them, ‘blame’ also carries with it the implication of whether money is recoverable from that party. For example, if your car is parked in your driveway and it is damaged by large hailstones, you are clearly not culpable (i.e. it’s not your ‘fault’), but you are still ‘to blame’ because the insurer will be unable to recover money from a third party.
The blame itself isn’t necessarily connected with the events as they happened. So, we have to separate what insurance companies say and consider ‘blame’ to be different to ‘fault’.
Blame might be apportioned between two parties in an accident, and this is sometimes down to the negotiations between insurance brokers about who should pay what. As an example, when I was 20 a lady pulled out in front of me on a wet hill (I was going downhill) and stopped right in front of me. I had nowhere to go and ran into the back of her. The damage was $170 to my car and almost $3000 to hers:
- In the eyes of the insurance company I was 100% ‘to blame’ for the accident because I had failed to stop, even though you could argue I was not at fault as the other driver had caused a dangerous situation.
- In the eyes of the police, I was to blame, but they decided not to give me a fine because of the circumstances
- However, the woman had experienced a similar accident not long before and the previous panelbeater had done a poor job of the repair, hence $170 of damage to my car (a broken light) and almost $3000 to hers.
I was judged to only be to blame for $1000 of damage while her panelbeater had to cough up the remaining $2000.
What you should do at the scene of an accident
The complex scenario mentioned above, and the fluidity, means that you should follow some very simple rules if you have an accident.
Don’t admit guilt. In the heat of the moment, you might not realise what has actually happened and the other party might be jointly or fully to blame.
Take as many details as possible without putting yourself at risk.
Take photos with your cellphone and make notes. Photos alone can easily miss important facts, or misrepresent what happened.
If you can record a conversation, that is ideal – it removes the he-said-she-said possibilities.
Write down the time and date of the accident plus an accurate location, e.g. 2.48pm, 12 August 2015, Ferris St, Annandale, 40m from the corner with Albion St.
Write down the registration numbers, makes, models and colours of all vehicles involved, e.g. Red Honda Civic registration XXXXXX.
Get the names, addresses, phone numbers, licence numbers (including expiry dates) and insurance details of all drivers.
Get the names, addresses and phone numbers of all witness (preferably ones that weren’t passengers in vehicles that were involved)
Sketch the scene – there are apps that can help you do this.
Note down any other pertinent information, e.g. weather, sunlight.
Write down what happened exactly, and without using emotional language (i.e. just stick to the facts), e.g. Red Civic did a u-turn and you hit the rear passenger door on the driver’s side at about 20kph.
Sending the information to your insurance company
Write up the information clearly and supply photographs, diagrams and descriptions, along with any witness testimonies.
Get the details of the person you are dealing with and get estimated times and dates for them to resolve the claim.
Your insurance company will contact the other drivers’ insurance companies, plus any witnesses. The insurance company will do its best to get out of paying anything and will try to make it seem like the other party is at fault. This is why it’s important that you get as much information as possible.
Knowing your rights with your insurance company
If you are not to blame in the accident you might be able to claim against the other party’s insurance not only for the damage to your vehicle but also for the cost of hiring a temporary vehicle. Your insurance company probably won’t tell you about the vehicle rental option, but court cases have upheld this to be a right as it is a ‘consequential loss’, i.e. a loss suffered by you as a consequence of the accident.
To be able to make the claim you must show that you have a reasonable need for the temporary vehicle, and the process can be a little tricky.
If the other party isn’t insured, it’s unlikely you will get money for the car rental and you would have to pursue it separately.
Check your insurance policy, or ask your insurance company to provide you the full details of how they mitigate their risk with rental vehicles. There might be a limit to how many days you can have a rental vehicle for.
You might have to pay for the rental up front, and then your insurance company will reimburse you later.
When might an insurance claim be rejected?
If you only have third party insurance and you are at fault, your vehicle is not covered in an accident.
Other situations where your insurance company might not pay:
- You are driving dangerously (excessive speed, for example)
- You fail to report an accident to the insurance company or police
- You were under the influence of alcohol, legal drugs (i.e. medication) or illegal drugs
- You were driving without a licence
- Obvious poor car maintenance, e.g. bald tyres, faulty brakes
- You provided false details to authorities.
If your insurance company does refuse to pay, you should get legal advice as soon as possible.
If you do tell your insurance company, you don’t have to claim through them. It might be cheaper for you to pay for repairs yourself if you are at risk of losing a big no claims bonus.
If you do tell your insurance company but don’t claim, ensure that they don’t reduce your no claims bonus – no claims bonus is there for not making a claim, not just remaining accident-free.