Not-at-Fault Car Accident and the Other Driver Won’t Pay: How to Claim From Them (or Their Insurer)

They rear-ended you at the lights. They apologised, swapped details, said “my insurance will sort it”. Two weeks later their insurer says the driver hasn’t lodged a claim, or the driver has gone quiet, or the driver is now saying you braked suddenly. Your car is at the panel beater with a $6,400 quote, you’re paying for a hire car, and the tow was $380.

You don’t need the other driver’s cooperation. In Australia, the at-fault driver is personally liable to you for the damage they caused, whether or not they have insurance and whether or not they lodge a claim. Their insurer, if they have one, will usually step in once it receives a properly documented demand. If it doesn’t, the courts are set up for exactly this claim.

Your rights

A driver who causes a collision through negligence (failing to keep a proper lookout, following too closely, running a red, failing to give way) is liable in tort for the loss they caused. That loss is: the reasonable cost of repairing your vehicle (or its pre-accident market value less salvage if it’s a write-off), the reasonable cost of a comparable hire car while yours is off the road, towing and storage, diminished value in some cases, and other out-of-pocket loss directly caused. You must act reasonably to keep the loss down, but you are not required to accept the cheapest quote or to go without a car. The claim is against the driver; if they were insured, the insurer defends and pays on their behalf. If you have comprehensive insurance, you can claim on it and your insurer recovers from the at-fault driver; but the excess, hire-car costs and any premium impact remain your loss to recover directly. The limitation period for property damage is six years everywhere (three years in the Northern Territory).

By state

• New South Wales. Sue in the Local Court: Small Claims Division up to $20,000, General Division to $100,000. NCAT does not hear motor-accident property damage claims. Compulsory third party (green slip) insurance covers injury only, not your car.
• Victoria. Sue in the Magistrates’ Court (civil jurisdiction to $100,000; claims under $10,000 usually go to arbitration). VCAT does not hear these claims.
• Queensland. Apply to QCAT under its minor civil dispute jurisdiction for property damage caused by a motor vehicle, up to $25,000. Larger claims go to the Magistrates Court.
• Western Australia. Sue in the Magistrates Court: minor case procedure up to $10,000, general civil to $75,000. Not SAT.
• South Australia. Sue in the Magistrates Court, which has a dedicated property-damage motor vehicle accident process; claims of $12,000 or less run under the minor civil rules. Not SACAT.
• Tasmania. Sue in the Magistrates Court: minor civil claims up to $15,000, general civil to $50,000.
• Australian Capital Territory. Apply to ACAT for a civil dispute up to $25,000; the Magistrates Court above that.
• Northern Territory. Apply to NTCAT for claims up to $25,000; the Local Court above that. The Northern Territory limitation period for property damage is three years.

The Claim Done document asks your state first and drafts the demand to that state’s court or tribunal and its claim limits.

What to do right now

1. Lock down the evidence. Scene photos, dashcam, the other driver’s licence and rego, witness names, any admission by text. Get the police event number if police attended.
2. Get two repair quotes. Written, itemised, from licensed repairers. If the car is unsafe to drive, get it assessed rather than driving it to quotes.
3. Document the consequential loss. Hire car invoices (comparable class, for the repair period only), towing, storage, and any lost income if you drive for work.
4. Send a formal demand to the driver and their insurer. Set out the accident, the negligence, each head of loss with the documents, the total, and 14 days to pay before you file. Address it to the driver personally and, if you know it, the insurer’s claims department.
5. File on day 15. The court and tribunal forms for motor-vehicle property damage are simple and the fees are modest. Attach the demand, the quotes and the photos.

“Sudden braking”, “50/50”, and other insurer lines

Once a demand lands, at-fault insurers often float a shared-liability position. Rear-end collisions are almost always the following driver’s fault. Failing to give way at a roundabout, turning across traffic, and reversing into a stationary car are similarly clear. Don’t accept a 50/50 to make it go away; ask them to put their liability position and reasons in writing, and answer it with your evidence. If they say the driver “hasn’t lodged a claim”, remind them your claim is against their insured driver and you will sue the driver personally, which usually prompts the insurer to lodge it for them.

Who to complain to

The at-fault driver’s insurer first; then the court or tribunal for your state (New South Wales Local Court, Victorian Magistrates’ Court, QCAT, Western Australia Magistrates Court, South Australia Magistrates Court, Tasmanian Magistrates Court, ACAT, NTCAT). If your own insurer is handling recovery poorly, complain to it and then to AFCA. If the other driver was uninsured and unregistered, your state’s nominal defendant scheme covers injury only, so the property claim still goes against the driver.

Demand payment from the at-fault driver — $49

Claim Done drafts a Car Accident Damage Claim addressed to the at-fault driver and their insurer that sets out the collision and the negligence, itemises repairs, hire car, towing and other loss with your documents, and gives 14 days before you file in your state’s court or tribunal.

Draft My Accident Damage Demand — $49 →

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On the other side of the crash? See at fault in a car crash with no insurance.