How NSW CTP Insurers Assess Liability for Child Injuries
Where a person's only injuries resulting from the accident are threshold injuries, weekly benefits and treatment and care generally cease after 52 weeks (ss 3.11 and 3.28).
NSW CTP insurers evaluate liability for child injury claims by considering fault, the nature of the injury, and evidence of the accident. When a child is involved, insurers also assess the child’s capacity to understand the incident and the role of caregivers in reporting injuries. The Motor Accident Injuries Act 2017 (MAIA) governs this process, ensuring claims are assessed based on objective criteria rather than subjective assumptions.
Key Factors in Liability Assessments
Insurers primarily focus on three factors:
- Fault: Whether the driver or another party was at fault. Fault is determined by police reports, witness statements, and traffic camera footage. For children, insurers may also consider whether the child’s actions contributed to the accident.
- Nature of the injury: Claims involving soft tissue injuries (e.g., whiplash) or threshold injuries (as defined by the Motor Accident Guidelines) are treated differently. Threshold injuries must meet specific clinical criteria, such as spinal nerve-root damage with neurological signs.
- Evidence of the accident: Medical records, accident reports, and witness accounts are critical. For children, caregivers’ statements about the child’s behavior before and after the incident are especially important.
Differences for Child Injuries
Child injury claims differ from adult claims in two key ways:
- Developmental factors: Insurers consider a child’s age, maturity, and ability to understand the incident. For example, a 5-year-old may not be expected to recognize traffic signals, which could influence fault assessments.
- Caregiver involvement: Claims often depend on the child’s caregivers (e.g., parents, guardians) to report injuries and provide evidence. Insurers may scrutinize the consistency of these accounts.
Evidence Required for Child Claims
To support a child injury claim, you’ll need:
- Medical records: Detailed documentation of injuries, including imaging and specialist reports. For threshold injuries, the Motor Accident Guidelines must be referenced.
- Accident reports: Police reports, traffic camera footage, and witness statements. If the accident occurred in Auburn, local police station records may provide additional context.
- Witness statements: Accounts from other drivers, pedestrians, or bystanders. For children, school staff or playgroup supervisors may also provide relevant information.
- Income and care records: If the child requires ongoing care, evidence of pre-accident income or care arrangements may be needed to assess long-term impacts.
Disputes and Time Limits
Insurers may dispute claims by challenging fault, injury severity, or the child’s capacity to understand the incident. If a dispute arises, you may need to request a review by the NSW Civil and Administrative Tribunal (NCAT). Time limits also apply: claims must be submitted within 52 weeks of the accident unless the injury is not immediately apparent. For threshold injuries, benefits are generally limited after 52 weeks under the MAIA.
Example Scenario
A 7-year-old child is injured in a car accident in Auburn. The insurer assesses liability by reviewing:
- Police reports confirming the other driver ran a red light.
- Medical records showing a soft tissue injury meeting the threshold criteria.
- Witness statements from the child’s parent and a neighbor.
- The child’s school records confirming no prior injuries.
In this case, the insurer would likely accept liability for the threshold injury but may dispute claims for long-term care if evidence is lacking.
When to Seek Legal Advice
If an insurer disputes your claim or refuses to pay, you may need to request a review by NCAT. Legal advice is also recommended if:
- The child’s injuries are complex (e.g., requiring specialist treatment).
- The accident involved multiple parties (e.g., a pedestrian and a cyclist).
- The insurer refuses to acknowledge fault or delays processing the claim.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.