This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Unclear who was at fault

Information about what to do after a motor vehicle accident when it is not clear who is at fault.

In many accidents it is unclear who is at fault because both parties contributed to the collision. In these cases, fault may be shared between the parties. This is often decided as a percentage according to which party was more responsible for the collision.

Did the police attend the scene?

Ask the client if the police attended the accident scene. Police will often indicate who was at fault. If not, did the police issue an infringement notice, or issue a charge and summons to the client or to the other party?

If police attended, the client could ask for a traffic accident report to see who police believe was at fault. This report may be useful if the other party is disputing liability and it seems from what the client says that they were not at fault. It may be possible to persuade the other party's insurance company to apply for the report at no cost to the client. If not, the client may need to apply through Freedom of Information to get a copy of this report.

See Victoria Police—Freedom of information(opens in a new window).

The panel beater's quote could also be useful to help determine fault.

Check the Road Rules

It may help to look up the Road Rules to determine who is at fault.

See Road Safety Road Rules 2017 (Vic)(opens in a new window).

Settlement on basis of own costs

In situations where a client has assets above the value of $7900, or income other than Centrelink income, but no insurance and fault is unclear, the best thing to do is to seek a settlement where each party pays the costs of their own repairs. This is called an ‘each bear own’ basis.

This settlement outcome is as good as a waiver. Always make these offers on a ‘without prejudice’ basis. The client should use the following procedure:

Letter to insurance company

Write to the other party's insurer asking for a settlement on an ‘each bear own’ basis.

See 'Appendix XXXII Letter to insurer about 'own costs' in Precedent letters.

Referral to internal dispute resolution

If client has not received a response to the above letter within 14 days then another letter should be sent to the insurer asking for them to refer the matter to their internal dispute resolution department.

See 'Appendix VIII Referral to IDR if no response' in Precedent letters.

Letter to General Insurance Code Governance Committee

If the insurer:

  • does not provide a response within 15 business days of receipt of their request that the matter be referred to Internal dispute resolution department,
  • does not resolve the client's complaint within 45 days, or
  • otherwise breaches the clauses in Chapter 10 of the Code when dealing with a client’s complaint

then a letter needs to be sent to the General Insurance Code Governance Committee at AFCA.

See 'Appendix V email to General Insurance Code Governance Committee about breach of code' in Precedent letters.

More information

Information on this page was originally adapted from Footscray CLC's 2012, Motor Vehicle Accident Manual. Thanks to Ali Yildiz.

Note: This manual is no longer available.

Legislation

Road Safety Road Rules 2017 (Vic)

See Road Safety Road Rules 2017 (Vic)(opens in a new window).

Reference

Insurance Council of Australia

A voluntary code of practice explains the customer service that a person can expect from insurers who follow the code.

See Insurance Council of Australia—The General Insurance Code of Practice(opens in a new window).

Victoria Police

The police website has information about how to make an application under freedom of information to access a police accident report.

See Victoria Police—Freedom of information(opens in a new window).

Acknowledgement

Content on this page was originally adapted from Motor Vehicle Accident Manual, 2012. Thanks to Footscray Community Legal Centre inc and to Ali Yildiz and Denis Nelthorpe.

Thanks to Matthew Martin, Senior lawyer, WEstJustice for assistance with review in April 2019 and for sharing WEstJustice's precedent letters.

Precedent letters

From Motor Vehicle Accident Manual, Footscray Community Legal Centre, Ali Yildiz.

Appendix II Vehicle Accident Information Application Form (doc, 370 KB)(opens in a new window)

Example of an application to Victoria Police for a report about a motor vehicle accident that they attended.

Appendix XXXII Letter to insurer about 'own costs' (doc, 58 KB)(opens in a new window)

Letter to other party's insurer suggesting that each party pay for their own repair costs.

Appendix VIII letter to insurance company ask for IDR (doc, 57 KB)(opens in a new window)

Appendix XXXIII Referral to IDR if no response (doc, 31 KB)(opens in a new window)

Letter asking an insurer to refer a matter to IDR if they have not responded to prior letters.

Appendix V Email to AFCA Code Governance Committee about code breach (docx, 13 KB)(opens in a new window)

Email to General Insurance Code of Practice Committee asking them to investigate a breach of the Code.

Updated