Chapters

Preliminary Steps

The person should have found out the other party's name and address at the scene of the accident. If not, it may not be easy to discover it as there are privacy considerations. The Registrar of Motor Vehicles has a discretion to release this information. It is suggested that a party to an accident write to the Registrar requesting the identifying details and explain why the information is needed. The Registrar also maintains a website, which provides a description of a registered vehicle, but does not give details of ownership. If an accident has been reported to Tasmania Police and an investigation takes place, the Police will provide information.  One should write to Accident Records at GPO Box 308 Hobart.  There is a fee. 

Having found out who to sue, the person should also have the cost of repair to their vehicle assessed by reputable repairer with a written quotation. It is not necessary to have two quotations, but it is advisable. If there are two quotations, the lower price should be claimed for.

Where to Sue

A person who is uninsured, or insured but not going to claim under their policy, may decide to handle their own claim. If damages are $5,000 or less a person can commence their action in the Small Claims Court. If damages are over $5,000 they must commence their action in the Magistrates Court (Civil Division). If damages are over $50,000 they must commence their action in the Supreme Court. Parties can agree to keep cases in the Magistrates Court when the amount is over $50,000, but both parties must agree. 

Other Party Uninsured

Send a letter of demand, plus the quotation to the other party. If a reply is received from the other party, and they accept responsibility, arrangements should be made how the money is to be paid (either in a lump sum or by instalments). This arrangement should be confirmed in writing.

If the repair quotation is disputed, contact the other party and offer to supply another quotation. If there is already a second quotation, it can come in handy here to cut down the delay in having the vehicle repaired. If the other driver denies liability, proceed to issue a summons against them.

Letters of Demand

A Community Legal Service should be able to help with the wording for letters of demand. If the other party is insured, send a letter of demand to that person and also a letter of demand and the quotation to the insurer involved. A letter should then be received from the insurer accepting or denying liability, and giving details of what to do next.

If the insurance company writes back saying that they will not accept liability (for example, because their insured was drunk or unlicensed at the time of the accident), it will be necessary to act as if the other party were uninsured.

Insurance Excess

If an insured person has made a claim on their insurance, and has had to pay an excess, they may be able to recover this sum from the other party. Alternatively, their insurer may do this for them (check with the insurer first).

If they wish to recover this sum themselves, they should send a letter of demand to the other party. If they receive no reply, they should decide whether to commence proceedings in court, bearing in mind the costs involved. If their excess is small, they may be advised to swallow their pride and go no further. If it is substantial, they can consider starting court proceedings.

Admitting Liability

If a person receives a letter of demand, they should not ignore it. If they are responsible for the accident, and the amount claimed is reasonable, they should pay as soon as possible. This will avoid further expense, such as court costs, and lawyer's fees. If they are not sure about who is responsible they should get legal advice.

If they decide to fight the claim, they can write to the other party denying liability and, if their vehicle has been damaged, state that if legal action is started, they will claim for the repairs to their own vehicle. They may also dispute the amount of damages claimed by the other party. They are entitled to request copies of repair quotations and invoices and receipts for the damages claimed by the other driver.

If there is no dispute about responsibility for the accident, and the person is uninsured or does not wish to claim on their insurance policy, they may offer to pay the amount claimed by instalments. The amount of such instalments should be determined by their financial position.

Where insurance companies have paid out a claim they are entitled to take legal action in the name of their insured to try to recover the amount. Drivers of uninsured vehicles frequently face such a claim, and may try to pay the repair costs by instalments if they can't afford a lump sum. The person seeking compensation (insurer or private individual) will often accept a lump sum payment for an amount less than the total amount of the repair costs in preference to instalments. This is called ‘settlement of the claim’. If the person is insured, and they receive a letter of demand, they should notify their insurance company as soon as possible, giving full details of the accident if they have not already done so.

Court Action

Consider again whether the claim is worth taking to court. Remember that a summons against the other party may provoke a counter-claim.

Transfer to Another Court

The defendant may transfer the claim to some other court. This can occur in three situations:

  • transfer to another Magistrates Court (Civil Division) or Small Claims Court in the district where the defendant lives or works;
  • transfer to the Small Claims Courts in matters below $5,000;
  • transfer to the Supreme Court where there is a counterclaim over $50,000.

After Judgment

Once judgment is obtained, the defendant should pay up. If not, the person will have to get advice from the staff at the Magistrates Court (Civil Division) on how to enforce the judgment against the defendant, or follow procedures for debt enforcement.

Settlement

When claims are settled, it is normal and indeed advisable for the person or insurance company paying the money to obtain a signed release from the party who has made the claim. This document releases the party from further responsibility. The release should be in terms such as the above. If a person is asked to sign a release by the other party, they should ensure that it does not prevent them taking action for personal injury. If in doubt, get legal advice. If they are the defendant, they should not pay any money without getting a signed release from the other party.

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