How SIRA handles distracted driving claims in NSW
A motor accident involving distracted driving may give rise to a claim for compensation under the NSW Compulsory Third Party (CTP) insurance scheme. The State Insurance Regulatory Authority (SIRA) administers the CTP scheme across NSW, including the Newcastle and Hunter region. SIRA does not define distracted driving as a standalone legal category, but it assesses whether a driver’s inattention, such as using a mobile phone, adjusting a navigation device, or engaging in other non-driving tasks, contributed to the accident. This assessment is part of determining fault and whether the injured person is entitled to benefits under the Motor Accident Injuries Act 2017.
What evidence supports a distracted driving claim?
To establish that distracted driving caused an accident, claimants must provide evidence that supports a reasonable inference that the driver was not attending to the road. Relevant evidence may include:
- A police report noting the driver’s conduct, such as using a mobile phone at the time of the crash
- Witness statements describing the driver’s behaviour before the accident
- Mobile phone records showing calls, messages, or app usage during the time of the incident
- CCTV footage from nearby cameras, including traffic signals or business premises
- Damage to the vehicle that indicates a sudden or uncontrolled manoeuvre
SIRA considers all available evidence to determine whether a driver’s distraction was a contributing factor. The burden of proof lies with the injured person to show that the driver’s inattention caused or contributed to the accident.
What benefits are available under CTP for distracted driving incidents?
If a claim is accepted, the injured person may be entitled to:
- Treatment and care benefits to cover medical and allied health services
- Weekly income payments if they are unable to work due to injury
- A lump sum for permanent impairment, if assessed at 10% or more
These benefits are available regardless of fault, under the CTP scheme. However, if the injured person seeks damages for pain and suffering or economic loss, they must meet the threshold for a serious injury under the Motor Accident Injuries Act 2017. This includes proving that the injury is a threshold injury, such as a soft tissue injury to the neck or back, caused by a motor vehicle accident.
How does SIRA assess threshold injuries in distracted driving cases?
SIRA applies the Motor Accident Injuries Act 2017 and the Motor Accident Guidelines to assess whether an injury qualifies as a threshold injury. For example, a whiplash injury resulting from a rear-end collision may be considered a threshold injury if it causes persistent pain, stiffness, or neurological signs such as numbness or weakness. However, radiculopathy (nerve root irritation) must show specific clinical signs, such as loss of reflex or muscle weakness, to qualify.
If the only injuries are threshold injuries, weekly benefits and treatment and care benefits are generally limited to 52 weeks from the date of the accident. This is a statutory limit under the Act, not a discretion. The 52-week rule applies uniformly across NSW, including the Newcastle and Hunter region, and does not vary by location.
Time limits and procedural steps
A claim must be made within two years of the accident date. This time limit applies to all CTP claims, including those involving distracted driving. Failure to file within this period may prevent a claim from being heard, unless an extension is granted under exceptional circumstances.
The injured person must notify the insurer of the driver who caused the accident as soon as possible. This is typically done through the CTP insurer’s claims portal or by submitting a claim form via the SIRA website. It is important to preserve all records, including medical reports, correspondence with insurers, and photographs of the scene or vehicle damage.
When to seek independent advice
While SIRA provides guidance and processes for claims, the outcome depends on the specific facts of the case. For example, if the driver denies using a mobile phone, or if there is conflicting evidence about the sequence of events, legal advice may help clarify the strength of the claim. A claimant may also need assistance if they are disputing a decision to deny benefits or to limit payments after 52 weeks.
A hypothetical example: A pedestrian in Newcastle was struck by a car while crossing a road. The driver was later found to have been texting at the time of the collision, based on mobile phone records and a witness statement. The pedestrian sustained a soft tissue injury to the neck and was unable to work for 18 weeks. The claim was accepted under CTP, and the pedestrian received weekly payments and treatment benefits. Because the injury was a threshold injury and no other serious injury was present, benefits were limited to 52 weeks.
Next steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.