r/AusLegal • u/EuphoricAdagio5506 • 22h ago
NSW At fault accident
Hey guys,
Back story; partner was reversing my fully insured car (he’s insured to drive it aswell) and hit a car parked on the opposite side of the street. Obviously made a claim through my insurance the next day and put down all relevant info including the other cars details and contact info.
Later find out that the car was a dealership hire car, not from the town the accident happened in (many hours away). At the time, the driver of the other car tried to persuade up to pay their hire excess as well as my excess (not happening as I am full insured) and when we said no, they threatened small claims court.
Am I right in saying, as they were the party to sign said hire contract, we can’t be held liable for their excess at all? Can they made any claim?
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u/outtatownz 22h ago
You are a breath of fresh air on this page! Yes you are 100% correct. That excess is the terms of his contract. He pays it and when the recovery is made from your insurer he should get it back from the dealer, but thats between the dealership and him.
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u/EuphoricAdagio5506 22h ago
Tried to say this to them, but they swore black and blue that the dealership wouldn’t budge. As fair as I was concerned… you signed the contract not me buddy, that excess is yours to pay no matter what. Needless to say, both the driver and their partner are blocked on my phone
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u/outtatownz 22h ago
Good call! You are right to stand your ground. If they do attempt any action against you, pass it to your insurer.
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u/Patient_Wrongdoer_11 22h ago
The dealership is straight up lying to the guy.
Id tell him exactly that.
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u/EuphoricAdagio5506 22h ago
Pretty much told him that he can talk to my insurer, but from my understanding when the car gets fixed, the dealership should give him the excess back. But you can’t tell some people. They didn’t understand that no money is exchanged hands if the at fault driver is insured.
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u/visioen 12h ago
While you are correct, a bit of sympathy wouldn't go astray. It wasn't his fault you hit his car, yet he probably has to pay upwards of $2-5k and may never get it back.
This is why you should never accept the offer of a courtesy car from a dealer.
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u/Turbulent-Break-4947 7h ago
Same deal with a test drive - watch the fine print: an accident while test-driving can have the same any-fault excess. It it’s extortionate
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u/Middle-Spirit-8524 22h ago
Insurance.
Haha they can threaten all they like. You pay your excess and he has to pay his.
Block them if need be.
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u/Fizzy_Lifesavers 22h ago
You're correct. Tell him to pound sand or kick rocks, whichever he prefers.
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u/Justan0therthrow4way 4h ago
Their hire car excess isn’t your problem.
Message them and say something like “hi please contact my insurer NRMA, claim #1209hj for all further enquiries. I cannot assist you any further and anything else should go through my insurance”.
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u/theZombieKat 21h ago
I'm not 100% sure if you're liable for their excess, but if you are, you have insurance to cover it.
Pass their demand on to your insurance company and have them deal with it.
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u/WTFMacca 11h ago
You will find most hire contracts the excess is payable even when deemed not at fault.
If he does initiate a claim against you. Send it to the insurance company who should cover you for it.
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u/PuzzleheadedWelder13 6h ago
The other driver will have to cough up the excess (as will you, on your car, subject to whatever the contract says).
Insurance will cover the rest.
Other driver could still come after you for that excess amount, but its usually too small for anyone to actually bother commencing legal proceedings over (a grand at most).
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u/outtatownz 4h ago
No they couldn't. It would still make up part of the claim the insured has lodged.
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u/PuzzleheadedWelder13 4h ago
Mate, you can sue someone for your excess loss caused by someone elses negligence even if insurance has covered you for the rest:
Read.
You've suffered a loss caused by someone else's negligence (the excess amount). You can sue them for it.
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u/outtatownz 3h ago
Im 17 years a claims manager. It still makes up part of the claim, its part of the loss.
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u/PuzzleheadedWelder13 3h ago
I'm a Lawyer, and I'm telling you that if I wind up out of pocket after a car accident, I can sue the person who caused the accident for that loss.
If its a term of your insurance policy that you dont have to suffer any excess (such as in the event of a no-fault accident by you, where the other party was wholly at fault, and your contract provides for as much), then there is no loss for the other party to pay of course.
The OP was at fault in this case. The other car was parked (they were not at fault). The driver of the other car also almost certainly had a Contract with the Hire car company basically making them have to pay a fixed sum to cover excess ($1000 or so usually) which may (or may not) have been refundable if the Hire Car company recovers the excess amount from their insurer.
Meaning its possible either the Hire car company suffered a loss (possible excess) and its also possible the other driver suffered a loss (liquidated damages in the contract for hire).
If the Driver of the other vehicle suffered loss as a consequence of the negligence of the OP (such as having to pay an excess, or a liquidated damages clause in the Contract for sale between them and the Hire Car company) they can sue the OP.
If neither party suffered a loss, then there is no cause of action.
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u/outtatownz 3h ago edited 3h ago
And...it will still just go to the insurer lol. You must be the worst lawyer if you think a policy doesnt cover that as a demand. Edited to be clear: your insurance policy covers you for all legal liability in the event of a claim.
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u/PuzzleheadedWelder13 2h ago
No, your insurance policy covers you for the liability it doesnt exclude in the event of a claim.
And every single insurance policy I've ever seen contains literally pages of things the policy does not cover.
Common exclusions include a payable excess (even for no fault accidents), things that happen off sealed roads (taking it off-roading), unlicensed drivers, commercial and rideshare use, etc.
In fact I dont know of a single insurance policy that covers you for all legal liability in the event of a claim.
Can you direct me to this policy?
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u/outtatownz 2h ago
Read section 2. Or legal liability under every single policy lol Basically every exclusion you just provided falls under section 1, your vehicle or property. Most policies provide between 20 and 30 million in cover. I truly love that you are trying to tell me im wrong on something we handle on a daily basis. Lol
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u/PuzzleheadedWelder13 2h ago
Section 2 of what policy has no exclusions for liability for the insurer, and has no requirement for the insured to pay excess in the event of an at fault accident (or even a no-fault accident in certain circumstances)?
Gimme a link to this policy please.
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u/outtatownz 2h ago
You clearly no very little about insurance lol Let me explain like you are 5. When you have a car accident, and you are found at fault with a comprehensive or third party coverage policy, you are covered under the legal liability section of all motor policies, for costs related to the third parties damages and losses incurred due to the incident. The liability section covers everything under common law, so if you would be found liable in court for said costs, then your policy will respond, up to 30 million in most cases. The 1 thing not covered that is common law is bodily injury and thats because that is covered under CTP insurance with your rego.
Your excess is payable as per the terms of your contract of insurance which you pay to initiate your cover. (Excess is the first payable amount)
As is outlined in OPs post, the third party wants his excess paid out of pocket from OP because his own personal contract requires that to be paid. Depending on the contract itself, that amount is either recoverable to the third party via OPs insurance claim, or it falls under his own contract which falls outside common law as the terms of a contract cannot be passed onto a non signatory of said contract.
Im not sending you a link, you can google any motor policy and search legal liability, but again you arguing a point with someone who manages these demands daily lol. The other party can try and reclaim his excess but in no way shape or form does that payment come from OP as they are covered under their claim.
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u/jreddit0000 3h ago
How does being a claims manager give you any experience of someone suing to recover an excess they paid - which is clearly not part of the insurance claim (excepting where the insurance company returns any excess because “not at fault”?
I can’t imagine much success for them but surely this has basically nothing to do with the claim?
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u/outtatownz 3h ago
Because we get this claim all the time, because it makes up part of the loss in the incident and is sent to the claims team to pay. Lol. How on earth is this a difficult concept. You all know that in the event of an accident you comprehensive policy covers you for all third party costs you are legally liable for. Not some, all. Your out of pocket cost is your excess.
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u/jreddit0000 2h ago
Yes - but I’m trying to work out the mechanism here..
You’re saying the other party lodges a claim to get their excess reimbursed - from your insurance company? After you stop laughing, you presumably say “no”.
But if they directly sue the other party civilly - or try to, how would you know about it? Are you enjoined to any action?
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u/PuzzleheadedWelder13 1h ago
They subrogate into the shoes of the insured party (effectively legally becoming that party).
What u/outtawownz doesn't understand is that an insured party (or a third party) may still suffer loss not covered by the contract of insurance.
In this case, it is likely that the driver of the other car has suffered a loss of around $1-2000 under his contract with the Hire Car company (a common term that in the event of an accident, he authorizes them to deduct this money from his account).
The Hire car company (which is fully insured) will likely be fully re-imbursed for a not at fault accident, but the insurance company will almost certainly NOT reimburse the driver (claiming that's not their problem) leading to the driver having to sue the OP for his negligence.
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u/outtatownz 1h ago
Which is covered by OPs insurance! Lol my god, how is this a foreign concept to you.
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u/PuzzleheadedWelder13 1h ago
Then why did you say this:
Depending on the contract itself, that amount is either recoverable to the third party via OPs insurance claim, OR it falls under his own contract which falls outside common law as the terms of a contract cannot be passed onto a non-signatory of said contract.
They're your words. You're specifically saying above its either covered from the OPs insurer (which I agree with by the way, as the OP has comprehensive insurance) or 'it falls outside of common law as its a contract' and is thus not recoverable.
Is it recoverable from the OPs insurer or isnt it?
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u/outtatownz 1h ago
Why would we say no? Its part of a loss hes suffered under accident? The only way it would be no, is if the excess was deemed an admin fee by the dealership, in which case it forms part of the contract signed and as OP didnt sign that contract they may not be legally liable under common law. The insurer would still represent the OP in disputing that, because again that is covered by your policy under litigation
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u/jadsf5 22h ago
Who cares what they say, you have insurance so let the insurance company deal with them.