Handling a property damage claim without a lawyer

Contributed by ChristianFoyle and current to 27 July 2018

If a person decides the potential costs of engaging a lawyer outweigh the amount of damages recoverable, they may chose to handle the claim themselves. In this case, certain steps before issuing any court proceedings should be taken. These include:

• Obtaining details of the car accident – a person should have found out the other party’s name and address at the scene of the accident. If not, they can apply to the Police Department, Crash Records section by making an application online for an Abridged Crash Report, or alternatively for documents under WA Police Freedom of Information (when any prosecution action has been finalised). A small fee is payable. Freedom of Information documents are recommended in most cases because statements from other parties and witnesses may also be available. You will need to obtain an authority from a witness to obtain a copy of his or her statement otherwise the statement will be redacted to remove their personal information.
• Obtaining a quote for repairs – a person should also have the cost of repair of the vehicle assessed by a reputable repairer and obtain a written quote. It is not necessary to get two quotes, but it is advisable. In such a case, the lower quote should be claimed.
• Attempting to negotiate a settlement with the other party without going to court, including by writing formal letters of demand (see below).
• If negotiations fail, deciding where to sue – most actions regarding damage to motor vehicles will fall within the jurisdiction of the Magistrates Court which at the time of writing has a jurisdictional limit of $75,000.00. Most personal injury cases are brought in the District Court of Western Australia which has an unlimited jurisdiction regarding personal injury.

Letter of demand

A letter of demand could be sent to the other party in the terms set out below. A copy of the letter should be kept. It should be sufficient to cause the other party to send it on to their insurer. However the other party may not wish to claim against his or her insurer. If a reply is received, and the matter is agreed,the monies should be paid over. If the other party disputes the repair quote, contact them and invite them to arrange for another quote.

(name) (address) (date) Dear......................... I am writing to you about the accident on (date)… which occurred at (place of accident)… I am the owner of a motor vehicle number (registration number) which was damaged as a result of a collision with a vehicle driven by you (and owned by… if the owner was not the driver) on the above date. I am holding you responsible for the damage to my vehicle. The damage has been assessed at $............ and a copy of the quotation is enclosed. If your vehicle is insured, please forward this letter to your insurers as soon as possible. Unless you contact me within 10 days from the date of this letter, legal proceedings will be taken against you. Yours faithfully, (signature) If the other party still denies liability a claimant may proceed to issue a court summons, although it may be worth notifying the other party first of the intention to take court action. A second letter of demand could be written in the following terms: (name) (address) (date) Dear......................... I am writing to you about the accident on (date). I refer to my letter to you dated ................. in which I gave you until ........................ (10 days from the first letter) to contact me regarding the damage to my vehicle suffered as a result of the accident referred to above. As I have received no offer or money in satisfaction of my claim, I now inform you that unless I receive payment of my damages of $................. within 7 days of today’s date, I will commence court proceedings without further notice. Please forward this letter to your insurance company if you are insured against such a claim. Yours faithfully, (signature)

Commencing court proceedings

Before a claimant takes this step, consideration should be given as to whether it is worth taking to court. It is possible that a summons against the other party may provoke a counterclaim.

Assuming that a claimant wants to proceed, they should go to the office of the nearest Magistrates Court . Telephone the Perth Magistrates Court on (08) 9425 2222 to find out which Magistrates Court is appropriate. It should be explained that the claimant wants to issue a summons in respect of a motor vehicle accident. Sometimes, the Court Registrar will help fill out the summons form and the court can arrange to have the defendant served (that is, formally provided with) with the documents. Proceedings can now be commenced online through the Magistrates Court Website.

The defendant

If a defending party receives a letter of demand, it should not be ignored. If the defendant is responsible for the accident and is satisfied that the claim made by the other party is correct, the defendant may engage their own insurance assessor to look at the vehicle to make an assessment as to whether the repair costs claimed are correct. Immediate payment will avoid further expenses such as court costs, lawyers’ fees etc. If a defendant is not sure who is responsible for the accident, legal advice should be sought.

If a decision is made to contest a claim, a letter should be written to the claiming party denying liability and, if his or her own vehicle has been damaged in the accident, notice of intention to make a counterclaim for the cost of those repairs should be given. If the cost of the repairs is also disputed, notice of this should also be given.

A claimant as well as a defendant is entitled to request that the other party provide copies of repair quotes and invoices and receipts for damages claimed. If the matter proceeds to a hearing, those documents will have to be produced.

If there is no dispute about responsibility for the accident, and a defendant is uninsured or does not wish to make a claim on the insurance policy, then they should offer to pay the amount claimed by instalments. If the other party does not accept the amount of instalments offered, then the matter may be resolved by the court ordering the payments following enforcement proceedings and this action will add significantly to the cost of the claim.

Obtaining a release after settlement

When claims are settled it is normal, and indeed advisable, for the person or the insurance company paying the money to obtain a signed release from the party who has made the claim. This document releases the paying party from further responsibility.

The release should be in similar terms to the following:

Sample Settlement Agreement Between..................................................... (name of claimant or plaintiff) and ................................................................... (name of defendant) The plaintiff hereby agrees to accept the sum of $............... paid by the defendant in full and final settlement of all claims for property damage arising out of the accident on the ............... (date) between vehicle registration number .... owned by the plaintiff and vehicle registration number ............ owned by the defendant. Signed............................................Plaintiff Signed.......................................Defendant

If the claimant or Plaintiff is asked to sign a release by the other party, then he or she should first ensure that it does not prevent them from taking subsequent action for physical injury arising out of the accident. If in doubt, see a lawyer.

A defendant should not pay any money without getting a signed release from the other party.

Expenses other than repair costs

In some circumstances the owner of the vehicle can claim from the responsible party other costs, such as loss of wages or profits, if it can be proved to the satisfaction of a court that the vehicle damaged in the accident was essential for the owner to earn income (such as where the vehicle is a taxi). Alternatively, another vehicle could be hired, and the cost of hiring claimed from the other party. Again the obligation rests upon the person making the claim to show that the hiring charges were reasonable and were a genuine attempt to mitigate losses which would be higher if these expenses were not incurred.

If the claimant requires another vehicle for work, that party should take reasonable steps to obtain an alternative vehicle and should not simply wait until his or her vehicle is repaired. If a claimant wishes to claim this type of loss, they should see a lawyer.