QLD Who to Send Letter of Demand to Under Traffic Law?

[TKC]

TKC - many thanks again for an excellent post. You pretty much answered everything I needed to know. I guess I am putting Car 4 down as the first defendant then.

No worries, happy to help. I think that from everything you have said it would appear that Car 4 is the at-fault driver, and you might, therefore, decide to put down Car 4 as the first defendant.

The community lawyer rang me back last night after she said she would speak to a friend of hers who actually works for Insurance Company's in regard to these matters.

She left a message on my phone saying "I discussed your case with my friends and we all agreed unanimously that you should serve your letter of demand to Car 4".

Ironically, the day before after I left her office she was adamant I should be going for Car 2 and did not seem to understand the proving of negligence part. Hence, I was not filled with confidence either - especially since I had done one basic subject on law myself in relationship to a degree I have in nursing I remember the subject was pretty much all about negligence.

I don't know anything about this, I am only going on the limited details you have provided.

Actually one other question: do I need to send a letter of demand to Car 3 as well?

I have currently sent a letter of demand to Car 2 initially.

Then I sent one to Car 4.

Car 3 may be at fault – I don’t know until I receive his notice of grounds of defence which would essentially give me his witness statements by way of his pleadings/particulars.

Hence is it a condition of filing and serving against all three cars (2, 3, 4) that I have previously sent them all a letter of demand?

A Letter of Demand is not a legal document. Normally, it is sent to give the defendant an opportunity to prevent the matter from escalating and thus taking the form of legal proceedings. To answer your question: It is not mandatory for you to have sent/send a Letter of Demand to a party/parties prior to completing a Statement of Claim form naming them as the defendants. It is simply used as a way to prevent initiating legal proceedings. Why go to court when the matter can reach a satisfactory outcome for all involved parties through an agreement of liability?

This is important: If you decide to name all three cars as defendants, and once you receive their notice of grounds of defence, it is imperative that you amend your Statement of Claim to delete the defendants you do not have a case against. Moreover, it is important that you do this prior to the date of what will be termed as a 'Pre-trial Review'. This will protect you against potential liability for getting people into court you have no case against.

So, a little checklist:
1.) Name all parties as defendants in your Statement of Claim.
2.) Await their replies.
3.) Work out from their replies who you can prove all three elements of negligence against.
4.) Delete all parties you don't have a case against by amending your Statement of Claim (with an affidavit in support), prior to the first court date (mention). You don't want to waste the time and money of innocent people, you just want to confirm your suspicions about the likely guilty party, and since they are not cooperating this is your only hope of getting to the truth of something you have not caused.

TKC, is there a textbook(s) which outline the pathway (including format and protocol) of how to serve and file a statement of claim against three defendants in a small claims court in Queensland including information on who to send letters of demands to ( for example in such cases like mine); and explains that one can amend their statement of claim (and how? as you mentioned via alfadavid) after I receive each defendant's pleadings/particulars within their grounds of defense?

I'm not sure it is necessarily accurate to describe them as textbooks, however law books do contain a lot of text;-) I'm in NSW but you would be after something like 'Ritchie's Motor and Traffic Law', sadly though, due to the greed in our world such information wants to be kept (or accessed) by the rich and so I think you may have to spend approximately 5K if you really want it. I would suggest a lawyer would come cheaper than this.

If I do go through this process myself - can I claim for the time I have had to spend as my own lawyer? If so, how would I gauge my hour rate for the time I spent - as a lawyer's hourly rate or as a nurse's hourly rate?

No, only a lawyer acting on his/her behalf can claim such costs. Sadly, a nurse's hourly rate does not come into it, unless you can satisfy (what is essentially a test for) exceptional circumstances or demonstrate that such circumstances are relevant in your case. This is difficult, I believe, so don't get your hopes up.

If I win against Car 4 and she is found to be at fault, does Car 4 have to pay for each of the other parties (Car 2, Car 3) lawyer fees? Again is there a textbook that explains that process as well?

I am hoping there is one textbook that explains it all.

I don't know enough about this matter to answer this with much confidence. You should concentrate on your case against the driver who you can prove all three elements of negligence. That is the most important thing if you want to be awarded cost/damages resulting from the accident. I believe that that is car 4, however, you should seek advice from a legal practitioner in person, and by presenting them with all the facts of your case. Including quotes from at least two smash repairers. It would appear like you have gone from a simple question about a Letter of Demand (an initiating process to test the waters for legal proceedings, if you will) to providing all parties with witness statements, to sending a Letter of Demand to Car 2 and then another to car 4, later. A lawyer for a face-to-face consultation with you is the best way for you to get the legal advice you require to stand the best chance of winning your case.

From QCAT: Minor civil disputes - QCAT Queensland Civil and Administrative Tribunal

• property damage disputes including damage to a house, or a car from a motor vehicle accident, up to and including $25,000

???? Oops.

FYI, I'm here to genuinely help people and learn at the same time. Sorry you mistook my posts as a personal attack, they are not meant to be.

If you think a four-car "conga line" accident is a 'minor civil dispute', then you should have no difficulty in identifying the legislative instrument Gerard will use to petition QCAT to argue his case?

 

[TKC]

@TKC - Please do not read this post as a personal attack - that is not my intention.

While I do accept that not every lawyer here makes it obvious (as is their right),
having been reading your contributions for some while,
I must admit to a certain courteous curiosity myself.

Firstly, I agree you have a legitimate purpose in asking this question.
Secondly, I would never consider such a question as a personal attack coming from you, precisely because of your thoughtful and courteous nature.

…Nevertheless, I hope you will understand that I don't provide such details to people I haven't met in person, let alone doing so on an open forum.

 

[Gerard]

Thanks, TKC and Rod for your help. The help I have received here has been better than the actual lawyer I went to see.

I was lucky enough to have a helpful and interested police officer who decided to take it upon herself to ring each person involved in the crash and an independent witness that was at the scene of the accident and write it all up in a Queensland Police Report. Once I gave that Queensland Police Report No. to Car 4's Insurance company CGU - they got back within 24 hrs stating they were happy to pay for damages. So thankfully I did not need to continue the courtroom drama further (if one would excuse the pun).

However, I am extremely grateful for the amount of information I have learned and I am sure others coming after me with similar issues will find this thread exceptionally useful. I did search the internet for similar scenarios but could not find this scenario exactly from the last car hit's perspective.

Interesting how that Traffic Law book you mentioned TKC costs about 5K. It puts an extra bit of spin on the adage "information is power".

 

[Gerard]

Needless to say I now have insurance!

 

[Rod]

Pleasing to know it worked out well for you.

BTW, a good dash cam with GPS for about $200 may also be a good investment You might think it would not be useful in this case, however the GPS would have shown you were stopped and for how long before you were hit and if you didn't have a helpful policewoman and an independent witness this information would have helped you. It may also shown whether there was one hit or 2. Food for thought.