Understanding liability in child injury motor accident claims
When a child is injured in a motor accident in New South Wales, insurers assess liability based on the Motor Accident Injuries Act 2017 (MAIA), which governs all Compulsory Third Party (CTP) claims. The focus is not on assigning blame in a moral or emotional sense, but on determining whether the driver of a vehicle caused or contributed to the accident through negligence. This assessment applies equally to children, whether they were passengers, pedestrians, cyclists, or motorcyclists.
Insurers consider the same legal principles regardless of the age of the injured person. However, a child’s vulnerability and developmental stage may influence how the insurer interprets the circumstances, particularly in cases involving pedestrian or cyclist injuries. The insurer will examine whether the driver failed to meet the standard of care expected of a reasonable person in similar circumstances.
Key factors insurers use to assess liability
Insurers rely on objective evidence to determine liability. The following factors are typically examined:
- The nature and timing of the accident, including the time of day, weather, and road conditions.
- Whether the driver was distracted, speeding, or failed to yield the right of way.
- The child’s age, size, and likely behaviour at the time of the accident (e.g., a young child may not have been able to assess traffic risk).
- Witness statements, including from other passengers, bystanders, or emergency personnel.
- Photographs or video footage from the scene, dash cameras, or nearby surveillance.
- Official accident reports, including those from the police if the incident was reported.
- Medical records showing the nature and timing of injuries, particularly if they indicate impact patterns consistent with a vehicle collision.
The insurer will not assume fault based on the child’s presence in a dangerous location. Instead, they assess whether the driver’s actions fell below the standard of care expected under the law.
Role of SIRA guidelines in liability assessment
The State Insurance Regulatory Authority (SIRA) provides guidance that insurers follow when assessing liability, particularly in complex or disputed cases. SIRA’s Motor Accident Claims guidelines clarify that liability is determined by the facts, not by the identity of the injured party. This includes children.
SIRA emphasises that insurers must not make assumptions about a child’s awareness or responsibility. For example, a child crossing a road may not be expected to understand traffic signals or vehicle speeds in the same way as an adult. Insurers are required to assess whether the driver had a reasonable opportunity to avoid the collision, given the child’s age and likely behaviour.
SIRA also notes that in Greater Sydney, where traffic volumes and speeds are higher, insurers may place greater emphasis on driver actions, such as whether they were observing the roadside or had time to react. However, no automatic assumption of fault arises from a child being involved in a collision.
Practical steps for parents and caregivers
If your child was injured in a motor accident in NSW, the following steps can help ensure a fair liability assessment:
- Seek medical attention immediately and keep all records, including treatment notes and diagnostic reports.
- Report the accident to the police if it involved injury, property damage, or a dispute.
- Preserve evidence: take photos of the scene, vehicle damage, and any visible injuries on your child.
- Collect contact details of witnesses, including other drivers, pedestrians, or staff at nearby businesses.
- Notify the insurer of the CTP policy holder (usually the driver’s insurer) as soon as possible.
- Do not admit fault or make statements about the accident without first seeking legal advice.
Time limits and dispute options
There is a time limit to begin a claim under the MAIA. You must notify the insurer within 6 months of the accident, or within 12 months if the injury is not immediately apparent. Failure to meet this deadline may prevent a claim from being processed.
If an insurer denies liability or offers a settlement you believe is inadequate, you may request a review. SIRA provides a formal dispute resolution process, and you can apply to the Civil and Administrative Tribunal (NCAT) for a determination if the matter remains unresolved.
When to seek independent advice
Child injury claims can be complex, particularly when the child’s injuries are not immediately visible or when the accident occurred in a high-traffic area such as Greater Sydney. The insurer’s assessment may not reflect the full impact of the injury on the child’s development, education, or future wellbeing.
A hypothetical example: A 7-year-old child was struck by a car while crossing a suburban street in Sydney. The driver claimed they did not see the child due to a parked vehicle blocking their view. The insurer initially denied liability. However, a witness statement and a dash cam video from a nearby business showed the driver had slowed but failed to stop. The child sustained a concussion and required ongoing therapy. After a review, the insurer accepted liability and agreed to cover treatment and care benefits.
This example illustrates that even in cases where the driver claims not to have seen the child, evidence can demonstrate a failure to exercise reasonable care.
Next steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.