What does not at fault mean in NSW?
Not at fault in NSW means the other driver was legally responsible for the crash, so their insurer, not yours, should cover your losses. It is a finding about who caused the collision, not about who was charged or who apologised at the scene.
The practical consequence is that you can claim a replacement car, repairs and related costs from the at-fault party, even before their insurer accepts liability. This article explains the legal test, how fault is actually decided, and what to do when the other driver denies it.
Key takeaways
- Not at fault in NSW means the other driver was legally responsible for the crash, decided on the civil standard of the balance of probabilities.
- Fault is determined by evidence such as dashcam footage, witness statements, damage patterns and police reports, not by who was charged.
- If fault is disputed, you can still arrange a replacement car through credit hire while the at-fault insurer is pursued.
- Not at fault is different from not guilty: one is civil liability, the other is a criminal or traffic outcome.
- You are entitled to a like-for-like replacement car, repairs, towing and loss of use, with rates and bonds shown on the car's page before payment.
- The legal definition of not at fault in NSW
- How fault is determined after a crash
- What if fault is disputed?
- The difference between not at fault and not guilty
- Your rights when you are not at fault
- How to prove you were not at fault
- What not at fault means for your insurance
- What not at fault means for a prestige or performance car
- Next steps if you are not at fault
The legal definition of not at fault in NSW
In NSW, fault is a question of negligence at common law. You are not at fault if the other driver breached a duty of care owed to you and that breach caused your loss. The test is not who hit whom, and it is not who was charged by police. It is whether a reasonable driver in their position would have done something different.
The High Court in Arsalan v Rixon (2021) confirmed that a not-at-fault driver can recover the reasonable cost of hiring a replacement vehicle while their own car is off the road, even if they did not actually hire one. That decision underpins how replacement car claims work in NSW today.
Fault can be apportioned. If you were 20 per cent responsible, you are 80 per cent not at fault, and your recovery is reduced accordingly. Pure 100 per cent not-at-fault findings are common in rear-end collisions, but not automatic.
The Motor Accidents Injuries Act 2017 governs personal injury claims through the CTP scheme. Property damage, including hire car costs, sits outside that scheme and is dealt with under common law and the insurer's obligations. This article is general information, not legal advice; for your specific circumstances talk to a solicitor.
How fault is determined after a crash
Insurers determine fault by applying the road rules and the evidence. That means the police report, dashcam footage, witness statements, the position of damage, and the version each driver gives. In practice, the physical evidence usually decides it.
Common scenarios and how they typically resolve:
- Rear-end collision (for example, on the M4 at Homebush or Parramatta Road at Granville): the following driver is almost always at fault.
- Right turn across traffic (say, turning right from Victoria Road, Rozelle): the turning driver is usually at fault.
- Lane change (on the M2 or the Lane Cove Tunnel): the driver changing lanes is usually at fault if they failed to give way.
- Roundabout (like the Five Dock roundabout): the driver entering must give way to vehicles already in the roundabout.
- Parked car: if your car was parked and unattended, you are generally not at fault.
Police attendance helps but is not required for a property damage claim. What matters is a clear, consistent account supported by evidence. If the other driver admits fault at the scene, get it in writing or on video if you can, but do not rely on it alone.
Your own insurer will also form a view. If you claim on your own comprehensive policy, they may treat you as not at fault and waive your excess once they recover from the other side. That recovery can take time.
Age limits are set per car. Drivers under 25 can hire most cars with Young Driver Cover; the exact terms are shown before you pay.
What if fault is disputed?
Disputes are common. The other driver tells their insurer you merged into them, or that you braked suddenly. Their insurer then denies liability, and your replacement car claim stalls unless you have the evidence to push back.
Do not panic. A denial is not the end. Insurers often reverse a denial once they see dashcam footage, a police event number, or an independent witness statement. The key is to respond quickly with evidence, not emotion.
If the dispute continues, options include:
- Provide a statutory declaration setting out your version.
- Obtain the police event number (COPS) and pass it to both insurers.
- Request the other insurer's reasons in writing.
- Escalate to their internal dispute resolution team.
- Refer the matter to the Australian Financial Complaints Authority (AFCA) if the insurer is a member.
- Instruct a solicitor to issue a letter of demand.
Credit hire providers often take on this risk. They fund the replacement car and recover from the at-fault insurer later, so you are not out of pocket while the dispute plays out. That is the model used for prestige and performance cars, where hire costs are higher and insurers scrutinise them closely.
If you need a replacement car now and liability is disputed, a credit hire arrangement can keep you mobile. See how credit hire works for the mechanics.
Not at fault? Start your claim
A like-for-like replacement car while yours is repaired. No cost to you when the other driver is at fault.
Start my claimThe difference between not at fault and not guilty
These are different questions. Not guilty is a criminal or traffic offence outcome, decided by a court beyond reasonable doubt. Not at fault is a civil liability question, decided on the balance of probabilities.
You can be not guilty of a driving offence and still be at fault for the crash. You can also be charged with an offence and still be found not at fault for the property damage. Police charging decisions and insurer liability decisions are made by different people for different purposes.
Example: you are turning right at the intersection of King Street and Enmore Road, Newtown, and a car runs a red light and hits you. Police may not charge anyone. Your insurer finds the other driver at fault based on the traffic light phase and damage. No criminal finding is needed.
Another example: you are charged with negligent driving after a crash on the Pacific Highway at Chatswood, but the evidence shows the other driver crossed the centre line. The charge may be withdrawn, and fault may still sit with the other driver.
The practical takeaway: do not assume that because police did not charge the other driver, you are at fault. And do not assume that because you were charged, you are at fault for the hire car claim. Insurers look at the evidence independently.
If you are unsure where you stand, get advice early. The not at fault explained hub covers the full picture.
Your rights when you are not at fault
When you are not at fault in NSW, you are entitled to be put back in the position you were in before the crash. That includes:
- Repair of your car to its pre-accident condition, using a repairer of your choice.
- A like-for-like replacement car while yours is being repaired or assessed.
- Loss of use, which is the value of not having your car, even if you did not hire one.
- Towing and storage costs.
- Assessment fees and, in some cases, loss of income.
Like-for-like matters if you drive something prestige. If your BMW M3 Competition is off the road, a base Corolla is not like-for-like. The replacement should be comparable in make, model, age and condition. That is the standard the courts apply when assessing reasonable hire costs.
You can arrange the replacement car yourself and claim the cost from the at-fault insurer, or use a credit hire provider who funds it and recovers later. The second option means you are not waiting for the other insurer to approve anything.
If your car is a write-off, your rights change. You can still claim loss of use for a reasonable period while you source a replacement. See repairs and write-offs for how that works.
For a replacement car, you can book through accident replacement car Sydney. Bookings are fulfilled by Drive Tribe (drivetribe.com.au), and this site is part of that group.
How to prove you were not at fault
Evidence wins these claims. Collect it at the scene and in the first 24 hours, before memories fade and footage overwrites.
What to gather:
- Photos of all damage on both cars, from multiple angles, in daylight if possible.
- The other driver's licence, rego, insurer and policy number.
- Witness names and phone numbers. Ask them to text you their account.
- Dashcam footage. Download it immediately; many cameras loop after a few hours.
- Police event number if police attended.
- A sketch of the intersection showing lanes, signals and point of impact.
- Any CCTV signs on nearby shops. Note the business name and ask them to preserve footage.
For a crash on the M5 at Beverly Hills or the Hume Highway at Liverpool, dashcam is usually decisive. For a car park prang at Westfield Parramatta, CCTV from the centre can be requested, but only the police or insurers can usually obtain it.
Write your own account the same day, in chronological order, and keep it factual. Do not speculate about speed or fault. Send it to your insurer and keep a copy.
If the other driver denies fault, your evidence bundle is what turns it around. The more specific it is, the faster the other insurer accepts liability. More detail is in proving the other driver was at fault.
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What not at fault means for your insurance
Being not at fault does not mean your insurer disappears. If you have comprehensive cover, you can choose to claim on your own policy and let your insurer chase the other side. That is often the fastest route to repairs, but you may need to pay your excess upfront and claim it back later.
If you claim on the at-fault driver's policy instead, you deal with their insurer directly. They may ask you to use their repairer and may resist paying for a prestige replacement car. You are not obliged to use their repairer, and you are not obliged to accept a lesser replacement car.
Key points:
- Your no-claim bonus is generally protected if you are not at fault, but confirm with your insurer.
- Your excess is usually refunded if the other insurer accepts liability.
- You can still claim loss of use even if you did not hire a car.
- If you are partially at fault, your recovery is reduced by your share.
If your insurer delays or denies, you can escalate. See not at fault claim own insurer and insurer delays replacement car.
If your car is a prestige or performance model, the replacement car question is where most disputes arise. Insurers will push a compact SUV; you are entitled to something comparable. The like-for-like page sets out the test.
For a replacement that matches your car, consider booking through not at fault accident replacement.
What not at fault means for a prestige or performance car
If you drive a prestige or performance car, the like-for-like standard matters more, and insurers know it. A 2021 BMW M3 Competition is not replaced by a base hatch. A Porsche Macan is not replaced by a small SUV. The courts look at what is reasonable, and reasonableness tracks the car you actually drive.
That is why replacement cars for this segment are sourced carefully. The fleet includes performance sedans and luxury SUVs, and the booking process is the same whether you are in Parramatta or Mascot.
If your car is in for repairs after a not-at-fault crash, these are the kinds of replacements that fit the like-for-like test:
Mercedes-AMG C63 S
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Audi RS 3 Sportback 2022
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Porsche MACAN
2019 Porsche MACAN...
Delivery is available across Sydney, so you are not stuck without a car while yours is assessed. Minimum driver age is 20 on most cars and 25 or 30 on some; the rate, bond and any fees are shown on the car's page before payment. The bond equals the excess you choose. Paying by card carries a small surcharge; bank transfer and cash on the rental do not.
If you are not sure which car matches yours, see replacement by car type and BMW M and AMG replacement cars.
Next steps if you are not at fault
Move quickly. The first 24 hours set the tone for the whole claim.
- Make the scene safe and call 000 if anyone is injured.
- Exchange details and photograph everything.
- Report to police if required (injury, tow, or a driver who fails to stop).
- Notify your insurer, even if you plan to claim on the other side.
- Collect dashcam and witness evidence the same day.
- Arrange a replacement car so you are not without transport.
- Keep every receipt for towing, parking and rideshare while your car is off the road.
If you are in a dispute, do not let it delay your mobility. A credit hire replacement car can start immediately while liability is sorted out. The first 24 hours guide walks through the sequence.
For business fleets, the calculation is different: every day a vehicle is off the road is a day of lost work. See business and fleet for how replacement vehicles are handled for commercial use.
If you are a smash repairer, solicitor or broker, referral arrangements are covered in partners and referrals.
To check availability for a replacement car now, visit drivetribe.com.au. Cars can be booked from a single day, and the rate, bond and any fees are shown on the car's page before payment.
Questions people ask
Does not at fault mean I am not liable for anything?
What if the other driver says it was my fault?
Can I still claim if I was partially at fault?
Do I need to report the crash to police?
How long can I have a replacement car for?
Will my no-claim bonus be affected if I am not at fault?
Injured in the accident?
A replacement car covers the car. For legal advice about an injury, speak to Jameson Law, the most trusted personal injury firm in NSW (motor vehicle accident claims) on (02) 8806 0866.
Ready when you are
Start the claim online in five short steps, or call 0468 011 118. Replacement hires are arranged and fulfilled by Drive Tribe.
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