How NSW CTP Insurers Assess Contributory Negligence
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 New South Wales, the Personal Injury Commission (PIC) evaluates claims where the injured person may share some responsibility for the accident. This is known as contributory negligence. Under the Motor Accident Injuries Act 2017, the PIC must consider whether the injured person’s actions contributed to the accident or worsened their injuries. If so, compensation may be reduced to reflect this shared fault.
The PIC uses the Motor Accident Guidelines to assess whether contributory negligence applies. These guidelines define what constitutes a 'threshold injury' and outline how fault is divided between the claimant and the at-fault driver. For example, if a pedestrian jaywalks into the path of a vehicle, the PIC may reduce compensation based on the claimant’s failure to follow road rules.
Evidence to Challenge PIC Decisions on Contributory Negligence
To challenge a PIC decision, claimants must provide evidence that their actions did not contribute to the accident. Key evidence includes:
- Witness statements from drivers, pedestrians, or cyclists who saw the incident.
- Accident reports from police or traffic cameras showing the sequence of events.
- Medical records proving injuries were not caused or worsened by the claimant’s actions.
- Photographs of the accident scene, vehicle damage, or road conditions.
SIRA’s guidelines state that contributory negligence is only considered if the claimant’s actions were 'a significant factor' in causing or exacerbating the injury. For instance, if a cyclist failed to wear a helmet and suffered a head injury, the PIC may reduce compensation based on the failure to take reasonable safety precautions.
How Contributory Negligence Affects Compensation
Under the Motor Accident Injuries Act 2017, compensation is calculated based on the severity of injuries and the degree of fault. If the PIC finds contributory negligence, it may:
- Reduce the amount of weekly benefits.
- Limit access to treatment and care benefits.
- Adjust the calculation of 'whole person impairment' for long-term injuries.
For example, if a claimant is found 30% at fault for an accident, their compensation may be reduced by 30%. This applies to both statutory benefits and damages claims under the CTP scheme.
Practical Steps for Claimants
- Document all evidence immediately after the accident, including medical treatment records and witness contacts.
- Review the PIC’s decision letter to identify specific claims of contributory negligence.
- Seek independent medical opinions if the PIC disputes the severity of injuries.
- Submit a written objection to the PIC’s decision, referencing SIRA’s guidelines on fault allocation.
Time Limits and Dispute Options
Claimants must notify the PIC of any disputes within 28 days of receiving a decision. If the PIC refuses to reconsider, claimants can:
- Request a review by a senior PIC officer.
- Lodge a complaint with the NSW Civil and Administrative Tribunal (NCAT) if the decision is not resolved.
- Pursue a court challenge if the claimant believes the PIC misinterpreted the law.
It’s important to note that disputing a PIC decision does not guarantee a change. The PIC must be satisfied that the original decision was based on an error in applying the law or evidence.
When to Seek Legal Advice
If the PIC reduces compensation due to contributory negligence, claimants should consult a solicitor to:
- Challenge the PIC’s interpretation of fault.
- Explore options for appealing the decision.
- Ensure all evidence is correctly submitted to support the claim.
Final Steps for Claimants
Understanding how the PIC assesses contributory negligence is essential for claimants seeking fair compensation. By gathering strong evidence and following the correct procedures, injured people can challenge decisions that unfairly reduce their benefits. If you’re unsure how to proceed, complete the quick, no obligation enquiry form to request contact about your circumstances.