Article Summary:
- Court upholds rights of not-at-fault drivers.
- Australian law entitles victims to replacement vehicles.
- The case in June 2021 involved a ‘new for old’ policy with Allianz Insurance.
- The at-fault driver’s insurer challenged the duration of the replacement vehicle hire.
- The court affirmed the not-at-fault driver’s right to a hire car while awaiting a replacement.
A recent court decision has supported the rights of not at fault drivers. It was found that drivers who are not at fault are entitled to claim loss of use while waiting for a replacement vehicle if their insurance policy allows a ‘new for old’ replacement of a new vehicle after total loss.
Under Australian law, you’re entitled to be placed back into the position you were in before your accident. This means you are entitled to a like-for-like accident replacement vehicle, at no cost to you. And, you’re also entitled to keep the vehicle for the entire duration of your repairs, or in the case of total loss, until you receive settlement.
What’s The Background Of This Case?
In June 2021, a driver in Kenthurst, NSW was involved in a not at fault vehicle accident. His vehicle wasn’t drivable immediately following the accident and was towed to a holding yard for assessment. He hired an accident replacement vehicle from Right2Drive shortly after the accident to be able to perform his usual activities.
His vehicle, which had been purchased from new at the end of 2019, was subsequently assessed as a write-off. However, he held a ‘new for old’ policy with Allianz Insurance and lodged a claim with them for his vehicle damage.
The not at fault driver’s original vehicle had been discontinued, and so Allianz Insurance offered to replace it with an equivalent vehicle or to pay him out for the value of his vehicle. Allianz Insurance advised that the wait on the equivalent vehicle was approximately 3 months, and the not at fault driver opted for the equivalent replacement vehicle.
Why Did This Case Go To Court?
In this instance, the at fault driver’s insurer claimed that the not at fault driver should have accepted the payout offered by Allianz Insurance and purchased another vehicle themselves with a view of reducing the hire car duration through Right2Drive.
The at fault party claimed that the hire duration was excessive and argued that the not at fault driver used the Right2Drive vehicle for an unreasonable amount of time. It was also stated that the not at fault driver failed to prove he had suffered physical inconvenience and loss of amenity use.
What Did The Court Decide?
The court found that the not at fault driver was entitled to invoke his policy of insurance and that it was reasonable for the not at fault driver to make a claim through his insurer and to take up his policy option of an equivalent replacement vehicle.
The court also found that the plaintiff did suffer both a physical inconvenience and the loss of use of his vehicle and was entitled to a hire car while awaiting delivery of the equivalent replacement.
The rate of hire with Right2Drive was agreed to before the hearing and the duration in full was allowed by the court.
How Does This Case Reinforce The Rights of Not At Fault Drivers?
The decision put forward by the court reinforces the fact that when a driver is not at fault, they are entitled to be restored to the position they were in before their accident. In this case, the not at fault driver was entitled to make use of the ‘old for new’ replacement under his insurance policy and was also entitled to an accident replacement vehicle to mitigate his loss of use during the time he had to wait for his equivalent replacement through his insurer. Not at fault drivers have rights that need to be upheld, and Right2Drive will continue to ensure that these rights are recognised.
