Understanding Aquaplaning Accidents and CTP Claims in NSW
A threshold injury under the Motor Accident Injuries Act 2017 (NSW) includes a soft tissue injury and a psychological or psychiatric injury that is not a recognised psychiatric illness (adjustment disorder and acute stress disorder are the usual examples; s 1.6 and Motor Accident Guidelines Part 5).
In NSW, a motor accident involving aquaplaning, where a vehicle loses traction on wet roads and slides on a film of water, may give rise to a claim under the Compulsory Third Party (CTP) insurance scheme. The Motor Accident Injuries Act 2017 (MAIA) governs all CTP claims, including those arising from wet weather driving incidents. For a claim to succeed, the injured person (the Personal Injury Claimant or PIC) must establish that the accident occurred, that they sustained injury as a result, and that the injury meets the legal thresholds required for compensation. In Greater Sydney, where heavy rainfall and high-speed motorway travel are common, disputes often arise over whether the driver was negligent in wet conditions, whether aquaplaning was foreseeable, and whether the injury qualifies for benefits or damages.
What the PIC Typically Expects in Disputes
In disputes involving aquaplaning accidents, the PIC generally expects that the insurer will acknowledge the risk of driving in wet weather and assess whether the driver’s actions were reasonable under the circumstances. The PIC may expect that the insurer will not dispute liability solely on the basis that aquaplaning is a natural hazard. However, the insurer may argue that the driver failed to reduce speed, maintain safe distance, or use appropriate tyres, which could constitute contributory fault. The PIC may also expect that medical evidence will be accepted to establish the nature and extent of injury, particularly where the accident occurred on a motorway or high-speed road in Greater Sydney, where impact forces are higher.
Key Legal and Practical Factors in Disputes
Under the MAIA, CTP compensation is not automatic. The PIC must demonstrate that the injury was caused by the accident and that it meets the statutory thresholds for benefits or damages. For treatment and care benefits, weekly income payments, and damages, the PIC must provide medical evidence showing that the injury is not a minor or threshold injury, or that it exceeds the threshold for damages.
A common point of dispute is whether the injury qualifies as a threshold injury under the Motor Accident Guidelines. For example, a diagnosis of whiplash or soft-tissue injury may be considered a threshold injury if it does not result in a permanent impairment or functional loss. However, if a spinal nerve-root injury is present and produces neurological signs such as muscle weakness or altered reflexes, other than radiculopathy, it may still fall within the soft-tissue definition and qualify for damages. The PIC should expect that insurers will scrutinise the medical evidence to determine whether the injury meets the threshold for damages.
Evidence That Matters in Aquaplaning Disputes
The PIC should preserve and provide the following evidence to support a claim:
- Medical records detailing the injury, treatment, and recovery progress.
- A statement from the treating medical practitioner confirming the injury was caused by the motor accident.
- Photographs of the vehicle, road surface, and surrounding area taken at or near the time of the accident.
- A police report, if one was filed, including details of weather conditions and road surface.
- Witness statements, if available, describing the weather, road conditions, and vehicle behaviour.
- A log of income loss or reduced capacity to work.
In Greater Sydney, evidence of road spray, standing water, or poor drainage on motorways may support a claim that road conditions contributed to the accident. However, the PIC should not assume that poor road conditions automatically establish liability. The insurer may argue that the driver had a duty to adjust driving behaviour in wet weather, regardless of road maintenance.
Time Limits and Dispute Resolution
A claim must be made within 3 years of the accident date, or within 6 years if the injury was not immediately apparent. The PIC should notify the insurer as soon as possible after the accident. Failure to notify within a reasonable time may result in a delay in benefits or a dispute over the claim’s validity.
If a dispute arises, the PIC may request an internal review from the insurer. The insurer must respond within 28 days of receiving a formal review request. If the dispute remains unresolved, the PIC may apply to the Personal Injury Commission (PIC) for a determination. The PIC should expect that the Commission will review the medical evidence, accident details, and insurer’s position before making a decision. The PIC may also request a medical assessment through the Commission’s dispute pathway, which allows for an independent medical review.
When to Seek Independent Advice
The PIC should seek independent legal advice if the insurer disputes liability, refuses to pay benefits, or challenges the medical evidence. The PIC should not assume that a claim will succeed simply because the accident occurred in wet weather. The insurer may argue that the driver was at fault, that the injury was pre-existing, or that the injury does not meet the threshold for damages. The PIC should also be aware that a challenge to a decision does not guarantee a change in outcome. The Commission’s decision is binding unless appealed to the NSW Supreme Court.
Practical Example
A pedestrian was struck by a vehicle that aquaplaned on a wet motorway in Sydney’s north-west during a storm. The vehicle had been travelling at 100 km/h on a road with a 100 km/h speed limit. The driver claimed they could not control the vehicle due to standing water. The PIC claims a permanent back injury and seeks damages. The insurer disputes liability, arguing the driver was speeding and failed to reduce speed in wet conditions. The PIC provides medical evidence showing a spinal nerve-root injury with muscle weakness, and a police report noting heavy rainfall and poor visibility. The PIC requests an internal review, then applies to the PIC for a determination. The Commission reviews the evidence and may order a medical assessment to determine if the injury meets the threshold for damages.
Next Steps
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