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NSW Car Insurance Claim by Driver whose Car Hit My Son?

Discussion in 'Insurance Law Forum' started by Mark Davis, 18 December 2014.

  1. Mark Davis

    Mark Davis Active Member

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    My 13 year old son was hit by a car as he was crossing the road, he was not watching the traffic correctly. My son did not suffer any injuries as I took him to the hospital and was release without incident after the car accident.

    The driver who clipped my son has some damage to his car caused by my son. If there is only one car involved, can the driver make a claim against me for costs? Or what car insurance does he go through.
    He has a witness to prove my son was in the wrong, and not watching the traffic. The driver also made a report to the local police station. In short, who fixes his car?

    Thank you.
     
  2. Tim W

    Tim W Lawyer

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    Has he written to you asking for money?
     
  3. Mark Davis

    Mark Davis Active Member

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    Hi, He has not asked for money at this point. He did send an SMS message saying he would be in touch tomorrow (Friday) regarding the car. No dollar values have been spoken about.
    Thank you
     
  4. Tim W

    Tim W Lawyer

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    There is no need to make admissions at this point.
    Perhaps wait for some kind of formal correspondence (lawyers call this a "Letter Of Demand").
     
  5. Sarah J

    Sarah J Well-Known Member

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    I am not too familiar with traffic incident matters, however, it does not seem as if cars can claim from pedestrians as pedestrians, especially toddlers, do not owe a duty of care when walking, so what would they be in breach of? Whilst it does seem unfair to drivers, I cannot imagine a car running someone over and then asking the family of that person for repair costs to the car.
     
    Sophea likes this.
  6. Sophea

    Sophea Well-Known Member

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    Hi Mark,

    I agree with Sarah, in that it is unlikely a child would owe a duty of care to a driver of a motor vehicle, that would render him liable for property damage.

    Case law over the last few years indicates that drivers owe a high duty of care to avoid injury to pedestrians, and injured pedestrians may still be able to make a claim for damages even if they contributed to the accident by failing to observe road rules etc. Drivers are expected to anticipate a pedestrian suddenly coming into the path of their vehicle and act accordingly to avoid liability. Therefore this would tend toward the driver's own insurer being liable to pay for the driver's vehicle damage. If it is minimal damage, I doubt that the insurer would bother trying to pursue the matter in court.

    The only circumstances where a pedestrian will usually be found to have contributed to the accident (and will therefore share any blame / liability for damages) is where they are intoxicated. (Which I doubt was the case here).
     
    Sarah J likes this.

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