How NSW CTP Insurers Assess Liability in Child Injury Claims
NSW CTP insurers evaluate liability in child injury claims by assessing fault, the nature of the injury, and the child’s capacity to understand the incident. Under the Motor Accident Injuries Act 2017, liability is determined based on whether the driver owed a duty of care, breached it, and caused the injury. This process differs for children due to their age and cognitive development.
Key Factors in Liability Assessments
Insurers consider several factors when determining liability:
- Fault of the driver: Whether the driver breached their duty of care, such as speeding, distracted driving, or failure to stop.
- Nature of the injury: Whether the injury meets the threshold injury definition under the Motor Accident Guidelines, which includes soft tissue injuries with neurological signs.
- Child’s capacity: Young children may not fully understand traffic rules, which can affect how their actions are assessed.
- Uninsured drivers: Claims against uninsured drivers fall under the Nominal Defendant scheme, which covers all road users.
Age and Capacity of the Child
Children under 12 are presumed to have limited capacity to understand traffic rules, which may influence liability assessments. For example, a child darting into traffic may not be held to the same standard as an adult. However, this does not absolve the driver of responsibility if they failed to exercise reasonable care.
Evidence Required for Claims
To prove liability, claimants must provide:
- Medical records confirming the injury and its connection to the accident.
- Accident reports from police or witnesses.
- Witness statements detailing the incident.
- Photographs of the scene, vehicle damage, and the child’s injuries.
- Income records if claiming weekly payments for lost earnings.
Time Limits and Dispute Options
Claims must be made within 52 weeks of the injury for statutory benefits like weekly payments. After this period, benefits are generally limited unless the injury meets the whole person impairment threshold. Disputes over liability can be resolved through the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court.
Practical Example
A 7-year-old child is injured when a driver runs a red light. Insurers would assess whether the driver breached their duty of care by ignoring traffic signals. The child’s limited capacity to understand traffic rules would be considered, but the driver’s failure to stop safely would still determine liability.
When to Seek Advice
Parents or guardians should seek legal advice if the insurer disputes liability, questions the injury’s severity, or delays processing the claim. An experienced solicitor can help navigate the CTP scheme and ensure all evidence is properly submitted.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.