The OMB Law Board: S3 Ep 12 | Fault, Photos, Police - The First Moves That Win (or Lose) Your Claim

Most drivers think compulsory third-party insurance has them covered—until they’re staring at a crumpled bumper and an uninsured headache. 

In this episode of The OMB Law Board, Simon Bennett sits down with Sam from OMB’s Litigation team to unpack the smart first steps after a “smash & bash”: staying safe, exchanging details, taking photos, when to call police, and why notifying your insurer quickly matters. 

They demystify CTP vs comprehensive cover (and what each actually pays for), explain how fault is worked out, and walk through recovering costs if you don’t have insurance—or if an insurer comes knocking on you. Then they zoom out: property damage isn’t just cars. Think hail-hit roofs, boats and jet skis on the waterways, maintenance obligations that can make or break a claim, and what to do if your insurer says “denied,” including escalating to AFCA and getting legal help. 

Practical, calm, and a little eye-opening—this one could save you time, stress, and money. Tune in to learn what to do now… and what to avoid.

What is The OMB Law Board?

Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.

Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.

Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.

"Welcome back to the OMB Law Board. I'm Simon Bennett. Today I've got Sam with me from our litigation team. Sam, welcome back to the OMB Law Board. Thanks for having me. So part of the litigation team is dealing with accidents.

(...)

It is.(...) And there are many types on very varying types of accidents. There is. I guess today I wanted to get you to explain to our listeners and our viewers a little bit about the property damage occurring from an accident. Sure. Any type of accident and what we should be on the watch out for, what we should do if we've been in an accident. Absolutely, so I think from a focal point, we'll look at just a smash and bash, a car accident. Okay. And you've been in a car accident and what is it that you do? What are the first steps that you do? Well,(...) firstly, you should get out of the vehicle at a safe place and exchange details with whoever has been in the motor vehicle accident. And let's make sure firstly that everyone's okay, right? And obviously everyone's okay. Anything in respect of a personal injury sustained in a motor vehicle accident is a completely different topic.(...) Lawyers can assist with that, but this is-- All right, we'll focus on the property damage. Just focusing on the property damage. So you exchange details, you take images of the vehicles,

(...)

and you ensure that everyone's fine, and you go on your way. So do we need to call the police? Now, in circumstances, there might be need to call the police, and especially in circumstances where you think there might be some issues as to who's at fault for the incident, you should definitely call the police and document what has happened and what has transpired, and so the police can take a statement. Okay.

(...)

Then after that, you want to ensure

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that you take the necessary steps with notifying your insurer of the incident. It's essential that you notify your insurer

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within close proximity to the incident of it occurring. What type of insurance here are you talking about? Because there's a couple of different types. Absolutely. So if you have insurance,(...) you have, well, CTP, compulsory third-party insurance, which attaches to the licensed driver of the vehicle. However, the damage to the vehicle itself, being the property damage to the vehicle, you would need comprehensive insurance. So that's not compulsory, right? One is compulsory, everyone's got it. That's right. If you're driving a car on the road. That's right. And the other one is elective. That's right, and you don't want to assume that because you're paying for CTP or compulsory third-party insurance when you're renewing your driver's license, that you are comprehensively insured. They are very distinct in each other, and you want to ensure that you have comprehensive insurance. So having comprehensive insurance, you'd lodge a claim for your insurer, and your damage would then proceed to be assessed as the damage. So what does comprehensive insurance cover? So comprehensive insurance would cover any damage to your vehicle that has been suffered as a result of the car accident. And what about someone else's vehicle? So it would also cover someone else's vehicle in the circumstances where you might be at fault. And on the flip side, if you're not at fault, it will also cover the damage for the vehicle. And compulsory third-party, what does that cover? So compulsory third-party insurance relates to injury as a result of an incident.(...) So that is your personal injury side of things, and that is covered under your compulsory third-party policy(...) Okay, so today we're talking about the property damage. So we're focusing on this elective insurance. Yeah, elective insurance.

(...)

It's a good way to-- Comprehensive insurance.(...) And we've notified our insurer that we've been in an accident. We've got a police report or whatever you, the police have come to the scene. What do we do next? So then you might be requested or required to take your car for assessment of damage.(...) The damage assessment might take place, and then your vehicle will be checked in to get repaired. Now, there's been issues recently, and especially people calling into OMB solicitors and saying, ""I've been in a car accident,(...) but I don't have insurance. What are my rights?""(...) And it's important to know that if you are not comprehensively insured, you are going to be, if you're at fault for the incident, that is,(...) liable for the damage to not only your vehicle, but the vehicle that was also in the car accident itself.

(...)

Okay, so how do we determine or who determines fault and who's paying for whose vehicle? Right, so if you have a police report, often a police report would determine parties at fault. If there's no police report and an incident has occurred,

(...)

you come to a lawyer, for example, OMB solicitors, will go through the methodology of how the accident transpired, and will assess whether, according to the Transport Road Use Management Road Rules and regulations, whether you are or you are not at fault for the incident. Okay, so if I'm at fault, I'm paying for my car and the other vehicle, but now let's assume for a moment that the other party was at fault and I've got my vehicle damaged, and presumably their vehicle is also damaged. How can you help me? So if I have insurance,(...) then the insurance company would take on that responsibility and go from there. But if you've come to OMB solicitors because you don't have insurance and you want to recover the damage from someone else's vehicle, the damage from someone else in respect to the damage caused to your vehicle, we would go through the liability process. We would then have to assess the damage caused to your vehicle. We would issue a letter of demand, and we would go through the general recovery process as it would be for a debt recovery. It would be a debt, and you'd have to recover that debt from the individual as opposed to the insurance,(...) which would come behind that individual.

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I assume that if I...

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Sorry, I lost my thought.

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And I assume that if a party was not insured and received a letter from the other party's insurer, where it was their fault, you could assist them as well? Absolutely. So if that had occurred, then we would go through the processes of ensuring that the insurer has complied with their obligations, whether there was appropriate assessment of damages and also looking at liability for the incident.

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And this sort of concept doesn't apply just to motor vehicles, Sam? No, absolutely not. I mean, insurance is a grand scale.(...) There's insurance for almost everything, but it applies also to home and contents.

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So your home insurance, it could apply to your boats and jet skis if you're on the waterways, and we've got vast waterways on the Gold Coast, so if you're ever in an incident, there's insurance that attaches to that.(...) And yeah, so there is many hats for insurance, so to speak. So with those property-based insurance-type claims, what's the process that you wanna go through when a client rings up and says, look, I've suffered this damage, I am insured? So if you go through that process, you'd want a loss adjuster to come out on site or someone to assess the damages and make sure that the damage caused you're insured under your policy of insurance.(...) For example, if there was a hail event and your tiles on your roof have caused damage to the tiles and you wanna make a claim for repairing to the roof,(...) you go through a number of things. One of the big catch-alls that we often see is, is that insured being the policy attaching to the insured, are they complying with their repair and maintenance obligations? Are you doing what you are required to do to ensure that you stay insured for an insured event?

(...)

So I've also seen situations that had clients of mine

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think they're insured, but their claim has been denied by an insurer.

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How have you been able to help clients in that situation?

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So again, that come, it's quite an interesting area.

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From a lawyer's point of view, there is another external body that can assist in circumstances where you have been denied insurance. It's called the Australian Financial Authority

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and AFCA for short.(...) And AFCA can assist in circumstances where there's been a denial of insurance where you're of the position there shouldn't have been a denial. We'll do submissions, we'll assess the policy of insurance, we'll assess the damages caused, and they're the types of steps that need to take place in order to put you in the position(...) had you had been insured.

(...)

Yeah, and I guess that's why we all take out insurance because we have an expectation that if one of these events occurs and we do suffer property damage that we will be covered. And there are times, unfortunately, where insurance companies need a bit of pressing and prodding. I know that from my own experience to approve a claim. And it's something that I think you should, if you get to that point, engage a lawyer from a litigation department at OMB to assist because reading the policy, making sure you've complied with its terms and then pushing forward your position on that can be very beneficial. Absolutely. And it's also timely to engage a lawyer at a very early stage to ensure that your rights are protected and you put in the position that you had been insured.

(...)

Well, Sam, thank you for coming in and explaining that today. It's an interesting topic, the property damage associated with accidents.

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And I'm sure that our viewers and our listeners have found it extremely informative. Thank you, thanks for having me. Well, thanks for joining us today on the OMB Law Board. We look forward to seeing you again on our next episode.(...) And until then, stay safe.

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