Distinction between an at-fault and non-fault accident

Distinction between an at-fault and non-fault accident

Whether your accident is categorized as at-fault or non-fault will have a significant effect on the financial outcome.

If you’re a non-fault driver, your legal entitlement is to be put back into the same situation as your pre-accident condition, as well as damages for consequential losses, for any injury and inconvenience. This is regardless of your own insurance position.

If you are at fault, you’ll have to rely on your insurance policy

It will be your insurance company who will be restoring the other (non-fault) driver to his pre-accident position. Where you are at fault, you won’t have to make any personal payments to the other driver or his passengers, but you must expect to pay the price. This will come by way of loss or reduction of your no-claims discount and an increased insurance premium next time you renew, continuing for a number of years.

In most road traffic accidents deciding fault is not difficult. Insurers agree amongst themselves in almost 95% of cases.

If you believe you’re not at fault, it might well be a good idea to avoid your own insurance company and think about exercising your legal rights directly against the other driver’s insurer. That means predicting what a court might find.

What does “fault” mean?

“Fault” in the legal sense means failure to take reasonable care, either by doing something you shouldn’t have done or failing to do something you should have done.

In road traffic accidents fault can be split between parties on a percentage basis.

If you’re the victim of a simple rear-end shunt, it’s likely that 100% of the liability lies with the driver who shunted you. But suppose you’re driving on a country road towards a stationary school bus where pupils are alighting. You fail to slow down enough, and you hit a 14- year-child who has run out from behind the bus without looking. It is highly likely that liability will be split between you and the child.

This matter

If your car is damaged, there’ll be repair and higher costs, as well as possible personal injury claims. If you’re found to be 50% at fault, it means you’ll only receive 50% of your total damages from the at-fault insurer. That means 50% of repair costs, higher costs, and personal injury damages. Your own insurance company will have to make up the balance.

In practical terms, if you have real doubt about whose fault it was, you should let your insurers deal with it and then insist they try to recover costs from the other side.

Many of the rules are couched in terms of “Must/Must Not.” These are absolute legal requirements, and you are committing a criminal offense if you breach them. The absolute rules are marked in red in the printed edition and each point to the law to which they refer. This means that in an accident, your insurance company will be the first port of call.

So, the law expects drivers to be aware of even the possibility of children stepping out into the street, and be particularly vigilant when children are present on the pavement.

This may involve slowing down well below the speed limit. A car is potentially a lethal weapon, and a court will often expect a much higher standard of driving than what you might think of as common sense.

How do the courts decide who’s at fault?

Let’s take a very general and broad-brush trip around various accident scenarios. The usual caveats about this article not being a substitute for proper legal advice apply — and then some — but it should give you an idea of what is likely to happen.

There are two main grounds of fault against a driver in an accident case: failure to keep a proper lookout, and excessive speed.

Failure to keep a proper lookout

This isn’t just about paying attention. It’s about being aware of just how easy it is to miss something on the road.

There’s a quick ready reckoner for speed and distance traveled. If you take your speed in miles per hour, divide it by 2, then add the figures together — you’ll get (approximately) the distance traveled in feet per second. So 30mph means 15 + 30 = 45 feet per second.

Do the math: if you’re driving a car, the briefest moments of inattention can spell disaster.

Excessive speed

Excessive speed means a speed which is inappropriate for the circumstances, not just breaking the speed limit. There may well be situations where you drive within the speed limit, but the courts will still consider your driving has been negligent.

To go back to the child pedestrian example

“At 40 mph (64 km/h) your vehicle will probably kill any pedestrians it hits. At 20 mph (32 km/h) there is only a 1 in 20 chance of the pedestrian being killed. So, kill your speed.”

Let’s take a look at a few accident scenarios.

You hit the vehicle in front

This is the familiar “rear end shunt,” typically caused by momentary inattention. If you run into the back of someone, you should expect to be held liable 9 times out of 10 — but there are occasions when you may not be at fault.

If the vehicle in front of you suddenly brakes for no apparent reason, there may be no liability on your part. For example, in the case of Elizabeth v MIB, a motorcyclist collided with the rear of a van which had braked violently. The court held the van driver had to show good reason for braking so suddenly and so heavily. So, in USA you better drive under the speed limit. Avoid accidents and be courteous on the road.