Not at Fault in a Car Accident in NSW: What You Are Actually Entitled To

If another driver damaged your car and you were not at fault, the most common thing people get wrong is assuming a replacement vehicle is a favour someone might do for them. It is not. It is a head of damage you are generally entitled to recover, and since December 2021 the High Court has been unusually clear about what that means.

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The Starting Point: This Is Damages, Not Charity

Australian law works on a simple principle. If someone negligently damages your property, they
are liable to put you back in the position you would have been in had they not done it. A car
sitting in a smash repairer for six weeks is not just a repair bill. It is six weeks in which you
do not have the car you own and paid for.

That deprivation is itself recoverable. The at-fault driver, in practice their insurer, meets
the reasonable cost of a replacement vehicle for the period you are without yours.

What the High Court Decided in December 2021

The leading authority is Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40, decided
unanimously by the High Court on 8 December 2021. Two separate accidents were heard together.
Mr Rixon's Audi A3 was damaged and he hired a replacement Audi A3. Mr Cassim's BMW 535i was
damaged and he hired a Nissan Infiniti Q50. Both hired through credit hire companies, and in both
cases the at-fault drivers' insurers had accepted liability.

The insurers argued the hire costs were excessive because a cheaper car would have got these
men from A to B. The High Court disagreed, and did so comprehensively.

The holding

A person deprived of their vehicle by another's negligence is entitled to the reasonable cost
of hiring a broadly comparable or equivalent vehicle. Not merely a functional one.

The Court corrected the language everyone was using

This matters more than it sounds. The Court held that "loss of use" is inadequate terminology.
The correct heads of damage are physical inconvenience and loss of
amenity. In plain terms: being without your car is both practically inconvenient and a
loss of the enjoyment you get from having it. The second half is why an equivalent car matters
rather than merely a working one.

"Need" was removed from the equation

Insurers had long argued that a claimant must demonstrate a need for a replacement, and that
if you could have caught a train or borrowed a partner's car, you had no need. The Court held
that the concept of need "was a distraction from the proper focus". You do not have to prove you
needed a car. You have to have been deprived of one.

The onus shifted

Perhaps the most practically useful part of the decision. Once you have hired a replacement,
the burden falls on the defendant to prove that what you did was unreasonable. It is not
on you to justify it in advance. That is a meaningful change to how these disputes run.

What This Means If You Drove Something Expensive

This is the part that matters most to owners of prestige vehicles, and it is the part insurers
are least enthusiastic about explaining.

If your damaged car was a Range Rover, the principle contemplates a broadly equivalent
replacement, not the cheapest thing on the lot. The insurers in Arsalan were arguing
about an Audi A3 and a BMW 535i, which are not exotic cars. The reasoning applies with at least
as much force further up the range.

In practice, the offer that arrives is frequently a small hatchback. That offer is not a
statement of your entitlement. It is an opening position.

The Limits, Stated Honestly

This is not a blank cheque, and anyone telling you it is has something to sell.

Three things a defendant can still dispute

The Court left three live battlegrounds. The rate charged for the hire. The
duration of the hire. And whether the replacement was genuinely
comparable to the damaged vehicle. That last one is not precisely defined, and
"broadly comparable" is doing real work in the judgment.

Circumstances where the entitlement may not arise

The Court acknowledged situations where a claim would not get off the ground. If you were
overseas for the entire repair period, or in hospital, or you are a business with idle fleet
vehicles you could simply have used, then the deprivation the damages are meant to remedy did not
really occur.

Reasonableness still governs everything

The standard is the reasonable cost of a broadly equivalent vehicle for a reasonable period.
Hiring something conspicuously grander than your own car, or keeping it well beyond the repair
period, invites exactly the challenge the Court left open.

How It Works in Practice

Establish liability first

The claim runs against the at-fault driver, generally through their insurer. Get their details,
the registration, and ideally photographs and any witness contacts at the scene. Where fault is
genuinely contested, this becomes considerably harder and is the point at which advice is worth
getting.

The two ways of paying for it

You either pay for the hire yourself and claim it back, or you use a credit hire arrangement
where the hire company bills the at-fault insurer directly and you pay nothing upfront. The second
is far more common precisely because most people cannot fund six weeks of prestige hire while
waiting for reimbursement.

Duration follows the repair, not the calendar

You are generally entitled to the replacement for the reasonable repair period, or if the car
is written off, until settlement is made within a reasonable time. Delays caused by the insurer
or by parts availability are usually not held against you, but unexplained delay on your side can be.

Keep the paperwork

Repair authority, assessor's reports, correspondence about delays, and the hire agreement. A
dispute about duration is decided on documents, and the party with a clean file usually wins it.

What if the other driver was uninsured?

This is where the practical picture changes sharply, and it is worth being clear about a
common misunderstanding. New South Wales has a Nominal Defendant scheme for accidents involving
unidentified or uninsured vehicles, but it deals with personal injury under the
compulsory third party system. It does not cover property damage or the cost of a replacement
vehicle.

If the at-fault driver has no insurance, your claim for damage and hire costs is against that
person individually. Legally your entitlement is unchanged. Practically, you are now relying on
an individual to pay rather than an insurer, and recovery can be slow or, if they have no assets,
not worth pursuing. This is one of the clearer cases for getting advice early rather than
incurring weeks of hire charges first and asking questions afterwards.

Where Drive Tribe Fits

We are a vehicle hire business, not a law practice, and we are not going to pretend otherwise.
What we have is the fleet: Range Rovers, a GLS, an Audi Q7, a Porsche Macan and the rest of a
genuinely prestige range. When a not-at-fault owner needs something broadly equivalent to what
they were driving, that is the part of the problem we can actually solve.

Tell us what you were driving and we will tell you plainly which of our vehicles is a
reasonable match and which would be a stretch. If nothing we run is genuinely comparable, we will
say so rather than talk you into the closest thing we happen to have free.