What Can You Recover After a Motor Vehicle Accident in NSW?

A motor vehicle accident can leave you dealing with far more than a damaged car. There may be towing costs, repair bills, a replacement vehicle, damaged personal property and additional transport expenses — all while you are trying to work out who was at fault and what happens next.

If another driver caused the accident, you may be entitled to recover more than simply the cost of repairing your vehicle. The losses that can be recovered will depend on the circumstances of the accident, whether the other party is legally liable, whether the loss was caused by the accident, and whether the amount claimed is reasonable.

1. The cost of repairing your vehicle

If your vehicle can be repaired, the reasonable cost of repairing the accident-related damage will commonly form the largest part of a property damage claim. Depending on the claim, useful evidence may include photographs of the damage, repair quotations and invoices, assessment reports, expert reports where required, and evidence showing which damage was caused by the accident. It is important to distinguish accident-related damage from unrelated or pre-existing damage.

2. The value of your vehicle if it is a total loss

Sometimes repairing a vehicle is not economical. Where a vehicle is assessed as a total loss, the measure of the claim may be different from an ordinary repair claim and can involve the value of the vehicle immediately before the accident, together with other relevant considerations. The appropriate amount will depend on the particular vehicle and the evidence available.

3. Towing and related expenses

If your vehicle cannot safely be driven following the accident, reasonable towing expenses may also be recoverable. Keep the towing invoice and any other documentation showing why the tow was necessary and where the vehicle was taken. Storage charges can also arise in some matters, although whether those charges are recoverable and for what period will depend on the circumstances.

4. A replacement vehicle while yours is unavailable

Being without a vehicle can itself cause a loss. Where it was reasonable to obtain a replacement vehicle while an accident-damaged vehicle was being repaired or replaced, the reasonable cost of that replacement vehicle may be recoverable.

The High Court of Australia considered replacement vehicle claims in Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40. Importantly, replacement vehicle claims are not simply a question of finding the cheapest car available. The nature of the vehicle that was lost, how it was used, the period for which a replacement was required and whether the expense incurred was reasonable can all be relevant.

Evidence showing why you needed a vehicle can therefore be particularly important. This may include travelling to and from work, transporting children, caring responsibilities, appointments, running a business, carrying equipment or goods, or normal day-to-day activities for which the damaged vehicle was ordinarily used. The length of the hire period must also be reasonable in the circumstances.

5. Other reasonable transport costs

A replacement vehicle is not always immediately available. For example, your vehicle may be towed from the accident scene and you may need alternative transport before a replacement vehicle can be organised. Depending on the circumstances, reasonable transport expenses incurred because your vehicle was unavailable may potentially form part of the loss claimed. This can include taxis or rideshare services where those costs were reasonably incurred as a consequence of the accident. Keep receipts and records of each journey, including the date, cost and reason for the trip.

6. Personal property damaged in the accident

The claim does not necessarily stop with the vehicle itself. Personal property damaged as a result of the collision may also need to be considered. Child restraints are particularly important from a safety perspective. Depending on the circumstances of the collision and the applicable manufacturer or safety guidance, a child restraint involved in a crash may need to be replaced. Where replacement is reasonably required because of the accident, keep evidence of the original restraint, the circumstances of the collision and the replacement cost.

7. Losses involving a vehicle used for business

Claims can become more complicated where the damaged vehicle was used to generate income. The temporary loss of a work vehicle, commercial vehicle or delivery vehicle may result in a claim involving lost income or profit. These claims are sometimes referred to as demurrage claims and generally require considerably more evidence than an ordinary repair claim. Business records, invoices, bookings, financial information and evidence of the vehicle's usual use may all become relevant.

Evidence matters

Even where a loss is legally recoverable, you still need to be able to prove it. Useful records can include photographs and videos of the vehicles and accident location, dashcam footage, the other driver's and witnesses' details, police information where applicable, towing invoices, repair quotations and invoices, vehicle assessment reports, replacement vehicle agreements and invoices, taxi and rideshare receipts, photographs and receipts for damaged personal property, correspondence with insurers and other parties, and records explaining why a replacement vehicle or other expense was necessary.

What if the other driver has insurance?

If the at-fault driver is insured, their insurer may become involved in dealing with the property damage claim. However, the existence of insurance does not necessarily determine what loss is legally recoverable. The underlying questions remain important: Who was liable for the accident? What loss was caused by it? Was the expense reasonably incurred? And can the amount claimed be proved?

What if liability is disputed?

Not every accident has an obvious answer about fault. Road rules, photographs, dashcam footage, witness evidence, vehicle positions, the accident location and the conduct of each driver may all become important. Before accepting an allegation that you caused an accident, or abandoning a claim because another party has denied liability, it may be worth having the circumstances properly assessed.

How K+M Legal can assist

K+M Legal acts in motor vehicle property damage and associated recovery matters. We can assist with issues including liability disputes, repair costs, replacement vehicle claims, loss of use, recovery of accident-related losses and disputes with third parties and insurers. If you have been involved in a motor vehicle accident and are unsure what you may be entitled to recover, contact K+M Legal to discuss your circumstances.

General information only

This article provides general information only and does not constitute legal advice. The losses recoverable following a motor vehicle accident depend on the individual facts and evidence of each matter. You should obtain legal advice about your particular circumstances.