If you witness a car accident do you have to go to court

What do you do when you’re in an accident on the road, but there’s nobody around to witness it?  A recent Court of Appeal decision demonstrates one of the many complicated issues that can arise in motor vehicle accidents.

A cyclist was awarded damages by a District Court Judge for injuries sustained during a fall from his bike. However, after the Court of Appeal decision, he will be forced to go through another trial after the decision was successfully appealed.

In 2012, Michael Cordin was cycling on Minyon Falls Road, north of Lismore, when he fell and suffered severe head injuries.

No-one witnessed the accident. The car was never identified. Mr Cordin was successful in making his claim, and proceeded to Court, where he received an award for damages of $350,000. The insurance company appealed and won.

When people are injured by uninsured or unidentified vehicles, they might still be able to claim CTP compensation through the Nominal Defendant, to ensure that they don’t miss out on appropriate treatment and compensation.

This case demonstrates how complicated it can sometimes be to make a motor vehicle accident claim, particularly in circumstances where there are no witnesses to the accident itself.  If nobody witnessed the accident, how do you prove how the accident occurred?  It is important that all of the evidence is carefully considered when you are approaching the way a claim is handled. If you have been injured in a car accident, you need an expert to help navigate the complex area of personal injury law.

Emma Mead is an Accredited Specialist in Personal Injury Law and has had many years of experience in motor vehicle accident claims. You can contact her on 1300 292 700 or email [email protected]. There is no fee for making an initial inquiry with us.

Typically what happens in the car crash claim process is that an offer of settlement is made by the insurance company that covered the driver at fault for compulsory third party (CTP) claims, and the injured person accept

Or sometimes, the injured person’s lawyers negotiate on their behalf with the insurance company’s lawyers and a better settlement is agreed on and paid out.

But what if you think the insurer’s best offer is really not fair or adequate, and you decide you want your day in court? How does this play out, and what do you need to keep in mind?

Car accident court process

In New South Wales, disputes about claims generally need to go to the Claims Assessment and Resolution Service (CARS) before they go to court. CARS tries to deal with claims on paper or through meetings, rather than by formal hearings.

If the issues cannot be resolved by CARS, then legal proceedings can be commenced. When this happens, the parties to the case will often meet to try to resolve the case through mediation. If this doesn’t produce a satisfactory outcome, then the case can go to court.

A personal injury compensation case is likely to be heard in the District Court. The system in Australia is generally ‘adversarial’. This means the legal representatives of the ‘plaintiff’ and the ‘defendant’ compete in arguing to establish the case for the party they’re representing. The plaintiff is you – the person initiating the legal action – and the defendant is the driver who was at fault.

Engaging a barrister and arranging for witnesses to attend

With the help of your lawyer, a barrister will be engaged to represent you when you are going to court for a car accident. Your lawyer will brief the barrister on what happened, and what line to take in supporting your case. The other thing you might need to do by way of preparation for the court case is to arrange for witnesses to attend the hearing.

The witnesses could be, for example, a passenger in the car, someone working in a nearby shop or living locally, or a pedestrian or cyclist who saw what happened or turned up in the immediate aftermath of the accident. The most important witness is you, the plaintiff.

How long do court proceedings take?

Your lawyer will ensure that time limits are complied with and guide you through the procedures, including the initial exchange of documents, proving the facts of the case, weighing up any conflicting evidence, explaining the relevant legal points, and understanding the decision when it’s handed down.

If your case succeeds, the judge will make an order for the defendant to pay compensation in the form of a sum of money known as ‘damages’. The whole process could take a number of years, from the time of the accident to the eventual payout.

What to expect in court for a car accident

It’s important to be well-prepared if you’re going to have to give evidence. Your lawyer can tell you beforehand what happens when you go to court for a car accident, including the sort of questions you’re likely to be asked, and how you should respond.

Appeals if you lose

If you’re not successful in court and the judgment goes against you, you may have the option of appealing the decision to a higher court. In New South Wales, this means your case would be heard again in the Supreme Court, with a different judge, whose task would be to examine the matters on which the appeal is based. Expert legal advice is vital if you are considering an appeal.

Costs if your claim goes to court

Your lawyer will explain the costs to you right from the start, and enter into a fee agreement with you. If your case succeeds in court, the defendant may be ordered to pay your legal costs.

Chances of a better outcome

It’s often reported that pursuing car accident compensation through the courts can result in a higher sum being paid in damages, rather than accepting an out-of-court settlement. However, this cannot be taken for granted.

A lawyer specialised in this type of case can advise you as to whether legal proceedings are the recommended course of action, in your situation.

Talk to a car accident claims lawyer today

If you have been involved in a motor vehicle crash and need to make a personal injury claim, then be sure to call our friendly team of car accident claims lawyers.

Our senior lawyers will be there to give you the right advice on what to do and whether or not going to court is the right thing for you. Call us today on 02 9601 0088.

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