I am trying to figure out who is at fault
**Note: The Insurance Law Service is unable to give advice about whether you are at fault or not**
Fault will be determined by a court if the parties to an accident cannot agree or there is conflicting evidence and versions of events. Generally Court decisions about fault will be based on:
- the availability and credibility of witnesses
- physical evidence (photos/footage, damage reports, skid marks on roads etc) and
- interpretation of the road rules
Generally, any driver who is negligent (does not take reasonable care) and causes damage as a result is at fault and will be responsible for the damage caused. If the insurer for the other party is contacting you and demanding payment, they may hold the belief you are at fault based on what their insured has told them (whether rightly or wrongly).
You should write a statement about what occurred. Draw a diagram of where the incident took place and any photos of damage to your car or the other driver’s car is also useful. You should read the road rules that apply in the State where the accident occurred and see what rules may support you not being at fault.
If you are not sure, you should consider speaking to a lawyer. For contact details and links to state based Legal Aid commissions and community legal centres see the Getting Help Fact Sheet.
If after undertaking the above and you do not believe you are at fault you can consider:
- providing them your version of events (including any supporting evidence);
- claiming on your insurance, and letting your insurer handle it (if applicable);
- accepting that you are at fault or partially at fault and negotiating a settlement.
If the parties cannot agree on fault, then it is open for either party to commence legal proceedings, you would then need to file a defence to a claim against you or prove the claim against the other party.
Depending on the amount of the claim and what jurisdiction you are this can lead to court costs. Get legal advice from a private solicitor in our state before commencing legal action. To find a private solicitor, go to your state’s Law Society web page:
- ACT Law Society
- NSW Law Society
- Law Society Northern Territory
- Queensland Law Society
- Law Society of South Australia
- Law Society of Tasmania
- Law Institute of Victoria
- Law Society of Western Australia
If you have limited means, contact your State’s Legal Aid or local Community Legal Centre for advice. For contact details and links to these organisations go to the Getting Help Fact Sheet.
If you have insurance you should make a claim without delay. If you dispute your excess, pay it and dispute it later.