Understanding Contributory Negligence in NSW Motor Accident Claims
If you were involved in a motor accident in Greater Sydney and the insurer or the Personal Injury Commission (PIC) suggests you were partly at fault, your compensation may be reduced. This is known as contributory negligence. Under the Motor Accident Injuries Act 2017, if your actions contributed to the accident, the PIC may reduce your entitlement to weekly payments, treatment and care benefits, or damages. The extent of the reduction depends on how much your actions contributed to the harm. This does not mean you lose all compensation, it means the amount you receive may be adjusted proportionally.
What the PIC Considers in Disputes
When assessing contributory negligence, the PIC examines whether your actions fell below the standard of a reasonable person in similar circumstances. Factors include:
- Whether you failed to see or react to a hazard that a reasonable person would have noticed.
- Whether you were distracted, speeding, or not wearing a seatbelt.
- Whether you were crossing a road without looking, or riding a bicycle against traffic.
- Whether you were under the influence of alcohol or drugs.
The PIC will review all available evidence, including police reports, witness statements, photographs, and medical records. It will assess whether your conduct was a significant factor in causing or increasing the harm. The PIC does not assume fault, it applies a standard of reasonableness based on the facts.
How Contributory Negligence Affects Your Compensation
If the PIC finds you were partly at fault, your compensation will be reduced by the percentage of fault attributed to you. For example, if you are found 30% at fault, your weekly payments and treatment benefits will be reduced by 30%. This applies to statutory benefits under the Motor Accident Injuries Act 2017, including treatment and care benefits and weekly income payments.
If you are claiming damages for pain and suffering, the PIC will apply a 30% reduction to the damages award. This reduction applies only to the damages portion, not to treatment and care benefits or weekly payments, which are already subject to a 30% reduction.
Practical Steps to Meet the PIC’s Expectations
To support your claim and respond to a contributory negligence assessment, you should:
- Gather and preserve all evidence from the accident, including photos of the scene, vehicle damage, and any witness contact details.
- Obtain a written statement from any witnesses who saw what happened.
- Provide a detailed account of the events to your insurer and the PIC, including your actions and what you saw.
- Submit all medical records, including initial assessments and follow-up reports, to show the nature and extent of your injuries.
- If you disagree with the PIC’s assessment, you may request a review within 28 days of receiving the decision.
The PIC expects claimants to act reasonably and provide full information. Failing to cooperate or withholding evidence may affect the outcome.
Dispute and Review Process
If you believe the PIC’s assessment of contributory negligence is incorrect, you may request an internal review. The review must be requested within 28 days of receiving the decision. The PIC will reassess the evidence and may confirm, change, or withdraw the original finding.
If you are not satisfied with the review outcome, you may apply to the Personal Injury Commission (PIC) for a determination. This process involves a formal review of the evidence and may include a medical assessment. You must submit your application within 12 months of the original decision.
A challenge does not guarantee a different result. The PIC will base its decision on the evidence, not on your belief about fairness. Medical evidence, particularly from a specialist, is often critical in disputes about fault and injury causation.
Time Limits and When to Seek Advice
There are time limits that affect your ability to dispute a decision. You must request a review within 28 days of receiving the decision. You must apply to the PIC for a determination within 12 months of the original decision.
If you are unsure whether to dispute a finding, or if you believe the PIC has not properly considered your evidence, you should seek advice from an independent legal or claims professional. The PIC does not provide legal advice. An independent review can help you understand whether your rights have been properly considered.
Hypothetical Example
A cyclist was struck by a car while crossing a road in Sydney’s inner west. The driver claimed the cyclist ran a red light. The PIC assessed the evidence and found the cyclist had not seen the approaching vehicle due to poor visibility and was not at fault for running a red light. The PIC concluded the driver was 100% at fault. The cyclist received full entitlements to treatment and care benefits and weekly payments. This example shows that the PIC will assess fault based on the actual circumstances, not on assumptions.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.