NSW Car Accident in Car Park - Who is at Fault?

[SueL]

My husband backed into a car that was illegally double parked behind him in a car park. He left a note on the car after the car accident, and the owners contacted their car insurance. Our car was minimally damaged, but they claimed around $700 damage and the car insurance company has sent us several demands. We have been told to just pay the claim by our insurance company but they seem disinterested.

Can we claim diminished liability as their car was parked illegally and thus contributed to the accident, or is it all our fault as he caused the accident by backing into their car? I am irritated that we can't seem to get someone from claims at our insurance to give us some straight information about this.

What happens if we don't pay - do we need to get formal legal advice or should we just pay?

 

[Sophea]

Hi SueL,

Fault is determined by having regard to whether each driver took reasonable care, or whether they were negligent. A driver who fails to keep a proper look out and causes an accident is said to be 'at fault'. Therefore prima facie your husband would likely be found at fault, because but for his failure to properly look he would not have backed into the car. Having said that, if the matter went to court, the court may decide that the other driver was contributorily negligent to some degree for parking illegally in an unsafe place. A court can award a percentage of contributory negligence such as 20%, so that any damages payable by the at fault party will be reduced by this amount.

I would point out to the other party's insurer that the other driver would likely be found contributorily negligent and try to negotiate the $700 down a bit. I am not aware of any grounds you could argue to avoid it completely though.