Page 36 - drive a2b march 2020 web

Legal

news

by Robert Bakker | RB Lawyers

REcovering

losses from

Not at Fault Collisions

W that if the negligent party benefits Unfortunately, the Third Party

When attempting to recover loss
concerning a not at fault Collision,
failed on a technicality, namely
from a contract of insurance
recovery action may need to be
died or cannot be found after
taken against the negligent party. that covers the incident and has there was no Judgment against
the negligent party which was the
reasonable inquiry, then the trigger for cover to operate.
It is very possible that the claimant may recover from the
negligent party may not be insurer. However, it can be strongly argued
locatable, has gone overseas or that the case is authority for the
has even died. Surprisingly, there is not a great proposition that, “If it looks like a
deal of case law on this provision duck and walks like a duck, it is a
In such a case, the temptation is duck” (or an insurer!).
just to give up and throw the Claim and it seems that the leading
in the ‘too hard basket’ and go decision is Bayswater Car Rental IN SUMMARY:
home. Pty Ltd -v- Hannell, a decision of
the Full Court of the Supreme Court So, it may be said therefore that
However, it is possible in some of Western Australia from 1999. in cases where there is a claim by
circumstances to recover should a third party against the negligent
this occur. In this case, a car rental company insured who has died or cannot
tried to avoid liability under reasonably be located, there is the
If it is possible to establish the Section 51 because it said that it potential for a claim directly upon
negligent party benefited from wasn’t an insurer. that party’s insurer. Of course, the
a contract of insurance, Section insurer is liable only to the extent
51 of the Insurance Contracts Act Rather, it said that it was a car that it would otherwise be liable to
1984 may come to the rescue. rental company and offered its insured.
indemnity to its renters under the
Essentially, this provision provides agreement.
36 DRIVE A2B magazine · March 2020