Thanks again TKC.
So should I make car 2 the first defendant or should I make car 4 the first defendant or it does not matter?
I saw a community lawyer the other day who seemed to think if I was intending to take all three cars behind me to court that this could not be done in a small claims court i.e. QCAT.
Gerard, QCAT and Small Claims Court are two very different forums. QCAT like NCAT here in NSW, is essentially a Consumer, Trader, and Tenancy Tribunal. In fact, like in QLD, it was called just that the CTTT.
State governments rebranded these tribunals to reflect their wider jurisdiction, however, they do not hear traffic accident matters, only (in relation to motor vehicles) consumer matters surrounding claims about motor repairs or purchase of vehicles from a dealer, for instance. Disputes between dealers and manufacturers about unfair motor vehicle supply contracts or unjust conduct are also heard.
She thought I need to go to a different kind of court and initiate a different kind of court case? She said in this different kind of court, if I lose that I would be up for paying all the defendant's lawyer fees. Would you be able to shed some light on this.
I have to say this lawyer did not seem to understand that I need to prove the negligence element.
She was correct. Motor vehicle accidents are heard in the Small Claims Court or the General Division of the local court. If you have not suffered any injury from the accident and the amount of costs/damages to the repairs of your motor vehicle is less than $10K, you would require the Small Claims Court.
She was also correct about the fact that you are exposing yourself to potential liability for costs and expenses were you to lose your case against the other driver/s. However, you wouldn't need to sue all the other drivers. Once you serve and file your Statement of Claim against Car 2, 3, and 4 -- you will remember I said in the earlier post that you will receive a notice of grounds of defence from each defendant -- essentially their pleadings/particulars.
Based on that evidence which is provided to you by them, you can then select who you think is the at-fault driver (which I believe will be car 4) and then amend your Statement to reflect the driver of the car who you will prove your case against. I mean, car 4 may plead guilty in his reply, so it will be easy for you to withdraw your claims against cars 2 and 3 with an affidavit in support, and just concentrate on getting car 4 into court to win your case.
Unfortunately I wrote a witness statement (which I sent to all parties involved - without legal advice) stating that I saw the car behind me stationary and that I saw that Car 2 was forcible pushed into my car 1 by the car 3 behind him and as such I felt he was not negligent.
There is nothing wrong with this. It is not about what you
feel, but what you can prove to the court on the balance of probabilities. The fact that you
felt car 3 was negligent doesn't mean that that's the case, after all, your view was obscured and perhaps you didn't even know that car 4 was also involved, at that point. I don't know. I don't see it as a problem, though.
She stated that I could argue that witness statement away, by saying I was in a state of shock when I wrote it and that it was done without legal advice and as such it was not my job to act as part of the defense for Car 2. It was Car 2's job in a different claim against Car 3 to recover money for money paid to Car 1 for damages done by Car 2 and to damages done to Car 2 by Car 3.
And so on .... separate court cases all the way back to Car 4.
The lawyer did seem uneasy about the issue of negligence and said she would ask a friend who works in car insurance to see if she could gain any other information on the matter.
So long as your evidence doesn't change throughout the carriage of the case, there is no need for you to alter your statement, and from what I can tell (on the details you have provided), there is no need for you to change or alter your statement. The only thing that matters is what happened directly behind you, therefore to car 2, the other stuff will only be viewed as conjecture by the court
in terms of your initial statement.
However, as I stated earlier, you can always amend your claim against the driver whom you think you have the best chance to establish all three elements of negligence against. For all you know, one driver might put his hand up and plead guilty, however, you won't know that until you file and serve your Statement of Claim against all of them.
This lawyer you have spoken to sounds weak, I wouldn't waste any more time on people like that, but if she comes back to you with the suitable information you may wish to approach another lawyer for confirmation.
Yes, as you know, the car insurance company's request that their members stay silent and never admit anything as they state that it is a condition of them (insurance company's) now representing them that they don't admit anything until it goes to trial.
I was using the American constitution's 5th amendment concept loosely and out of context country wise to mean the "right to remain silent".
The best way for you to proceed would be to allow your insurance company to take over the handling of your case. I agree.
