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).
If you're involved in a motor accident in NSW and facing a contributory negligence dispute, understanding your options is critical. Under the Motor Accident Injuries Act 2017 (MAIA), contributory negligence can affect the amount of compensation you receive. This article explains how shared fault is assessed, the dispute resolution processes available, and the legal limits of contributory negligence in NSW CTP claims.
How Contributory Negligence is Assessed in NSW CTP Claims
Contributory negligence refers to a situation where the injured person also shares some responsibility for the accident. Under the MAIA, the Personal Injury Commission (PIC) assesses claims by determining the percentage of fault attributable to each party. If the injured person is found to be partially at fault, their compensation may be reduced proportionally.
For example, if a pedestrian jaywalks into the path of a vehicle and the driver is 70% at fault, the PIC might reduce the injured person’s compensation by 30%. This assessment is based on evidence such as police reports, witness statements, and medical records. The PIC uses the Motor Accident Guidelines to evaluate injuries and determine fault.
Dispute Resolution Options for Contributory Negligence Claims
If you disagree with the PIC’s assessment of contributory negligence, you have several options to challenge the decision:
- Internal review: You can request the PIC to review its decision in writing. This process allows you to submit new evidence or argue that the original assessment was incorrect.
- External review by the NSW Civil and Administrative Tribunal (NCAT): If the PIC’s decision is not overturned, you may apply to NCAT for a review. NCAT can either uphold the PIC’s decision, vary it, or refer the matter to a court.
- Legal challenge: In rare cases, you may seek legal advice to challenge the PIC’s decision in court. This is typically reserved for complex cases involving disputes over evidence or legal interpretation.
How SIRA Handles Contributory Negligence Claims
SIRA (State Insurance Regulatory Authority) oversees the administration of CTP claims in NSW. When a claim involves contributory negligence, SIRA will:
- Assess the claim using the PIC’s fault determination.
- Calculate benefits based on the injured person’s percentage of fault. For example, if the PIC finds 20% contributory negligence, the injured person may receive 80% of the available compensation.
- Provide a written decision outlining the reasoning and available options for review.
SIRA’s role is administrative, not adjudicative. It does not determine fault but ensures claims are processed in line with the MAIA.
Legal Limits of Contributory Negligence in CTP Claims
Under the MAIA, contributory negligence cannot reduce compensation to zero. Even if the injured person is found to be 90% at fault, they may still receive some benefits. Additionally, the PIC must consider whether the injury meets the threshold injury definition under the Motor Accident Guidelines. If the injury is below this threshold, contributory negligence may not apply.
There are also time limits. If the PIC’s decision is not appealed within 28 days, it becomes final. However, you can still request an internal review at any time.
Practical Steps to Take During a Dispute
To strengthen your case during a contributory negligence dispute, gather the following evidence:
- Medical records showing the nature and extent of your injuries.
- Accident reports from police or traffic authorities.
- Witness statements from people who saw the incident.
- Photographs of the accident scene, vehicle damage, and any visible injuries.
- Income records to support claims for lost wages or care costs.
If you’re unsure how to proceed, contact a legal professional. While this article provides general guidance, your circumstances may require tailored advice.
When to Seek Legal Advice
Disputes over contributory negligence can be complex. If you believe the PIC’s assessment is unfair, or if you’re unsure how to challenge a decision, seek legal advice. A solicitor can help you:
- Prepare a strong case for review.
- Navigate the NCAT process.
- Explore options for disputing the PIC’s fault determination.
Remember, the PIC’s decision is not binding in law. You have the right to challenge it through the proper channels.
Next Steps
If you’re involved in a motor accident in NSW and facing a contributory negligence dispute, the key is to act promptly. Gather evidence, understand your options, and seek professional advice if needed. Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.