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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5362
Experience:  Dip Law LPAB - Sydney based lawyer
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I had an car accident where it was the other parties fault

Customer Question

Hi there, I had an car accident where it was the other parties fault and they already lodged and insurance claim that I can claim against.
The issue is that my car is old and not worth a lot and repairing the damage may easily exceed the value of the car or be pretty close to it. The next challenge is to get my car repaired. No repairer wants to touch it as spare parts are just too hard to get and the car is old.
I didnt want to bring it to the insurances recommended repairer yet as I am afraid they may just put their hands in the air and say it cant be repaired for the above stated reason.
But I am also struggling to find anyone else who is willing to take on the job. Though I have spoken to a few wrecking companies and they may have spare parts.
I want to understand what my legal rights are in this case and how much can I push the other insurance to get my car repaired. I need to understand what a write off means. The car registered as private use but I just started to use it for my business and the car is the perfect car for my business. That's why I really want to get it repaired. I want to understand what a cash settlement in that context is, how that generally is calculated. My car is 1995 model and its a vintage car.
I can send photos of the car and the damage. I don't have any insurance that acts on my behalf and dealing with the at-fault-drivers insurance directly (NRMA). My car is registered in NSW and the accident happened in NSW.
Just now I received the quote of a repairer who would charge $5,500 for the repair. The issue is the repairing will be higher than the value of the car. So it would be easy for the other insurance to write off my car. But I want it repaired and the repair being paid for. It's my car and I need it working. And the accident wasnt my fault.
When I spoke to insurance first, they made me agree to a term that said if they would assess the car as 'cant be repaired' they would pay me the value of the car minus wreckage value. But I dont want this to happen. And yes my car in fact can be repaired its just too hard for most repairers to get the spare parts - they just dont want to deal with it.
Can I withdraw my agreement from the insurances term?
I just need some advise around what my rights and the legal situation is before the insurance just writes my car off because they dont want to deal with it.
Thanks so much. Kerstin
Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.

If you are dealing with the other driver's insurer then their liability to you is no different than the other driver's personally. If he was at fault, his obligation is to compensate you for the loss you incur, and that would be calculated as the lesser of either the value of the vehicle or the cost of repair, less any value that can be recovered by scrapping the vehicle (though in practice the insurer may deal with this aspect by effectively purchasing the damaged vehicle from you.

So essentially you cannot simply insist they pay for repairs that are not viable, and it will be up to you, once you receive a compensation payment for the car to decide whether you then scrap the car or pay for it to be repaired.

If you can establish the car has value as a vintage car or has been modified for a special purpose which you have or were about to exploit, then you may be able to claim the cost of either modifying a replacement vehicle or, if that would bring the price of a replacement vehicle above the cost of repairs, use this to justify why they should be obliged to repair this particular vehicle, however, be aware that courts and insurers are suspicious of claims that a particular car has special features that make simply replacing it inadequate compensation, so you will need compelling evidence that you used or were about to use any such feature.

If you have your own insurer involved, they will only be obliged to pay what is owed under the terms of the policy, which is usually capped at the agreed write off value which you would have set when you took out the policy.

If you have already entered into a preliminary agreement either with their insurer or yours then you would presumably be bound by it unless there was something improper about the circumstances in which you entered into the agreement.

I trust the above assists.

PLEASE RATE MY ANSWER.

Patrick

Customer: replied 10 months ago.
Hi Patrick, Thanks so much for getting back to me.
Well that's not exactly the answer I would have loved to hear but the law is the law...
Can you tell me what makes a Vintage car?
And when you talk my car being modified for a special purpose: From next week I wanted to use my car for my dog training business which includes transporting a lot of long and spacious equipment (for dog sports). And that is the main reason I wanted to keep my car: all my equipment fits in my car, including my dog and 2 people to help. At the same time my car is off road suitable which allows me to bring my dog training incl equipment to places where other cars can't go that easily. I also invested money last year in getting the transmission of my car fixed exactly for that purpose. Unfortunately there are no other 4x4 in a similar price range as my car that are long enough to fullfil the same purpose.Re the preliminary agreement: What does it mean 'a car can not be repaired' - I mean my car can be repaired. Its just not easy to get the parts, and it may not be worth is economically but in fact it can be repaired.Thanks so much.Cheers, Kerstin
Customer: replied 10 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 10 months ago.
Hi Patrick, Just need some more information - see the questions in my last post.
But I don't want to take the phone call offer. Please reply via message.
Could you also let me know your response to cash settlement, which I needed some explanation on (see my first message today).
Thank you. Kerstin
Expert:  Patrick H. replied 10 months ago.

Vintage is just a description, typically of an old style car no longer manufactured. It has no legal definition, though I expect it is defined in some insurance policies. If that is applicable to your situation then you should review the relevant policy.

When I talk about the car being modified in some way, or having some special quality, I am saying that if you can show a court that for your genuine purposes, it is not sufficient to simply replace the car with a similar model, then the court should award compensation that allows you to be put back in the situation you would have been in had the accident not occurred (which is the theoretical objective of compensation). It is not enough to simply identify that a replacement will not be identical, but rather you need to show that the car had special value to you for some reason (such as modifications made to facilitate its use as a work vehicle. Proving that such modifications would reasonably be necessary may be difficult in your case, if you are just saying that a replacement vehicle would cost more, because there are no similarly old vehicles with equivalent room/capacity. The court will likely say that you may need to pay extra to get a newer model then, but you will then have a more valuable asset and so will not actually be out of pocket in a global sense.

not repairable generally refers to not commercially reasonable to require a repair, not physically unrepairable. Almost everything can theoretically be repaired, but a court will not expect parties to perform repairs when the more reasonable option is replacement.

I trust this assists.

Good luck and PLEASE RATE MY ANSWER.

Patrick

Expert:  Patrick H. replied 10 months ago.

Please rate my answer as the website does not pass on mayment until you provide a positive rating.

Thank you.

Patrick