Understanding liability in driveway child pedestrian accidents in NSW
A child injured in a driveway by a motor vehicle in NSW may have a claim under the Compulsory Third Party (CTP) insurance scheme. Insurers assess liability based on the Motor Accident Injuries Act 2017 (MAIA), which applies to all motor accidents in NSW, regardless of whether the incident occurred on a public road, in a private driveway, or on a residential property. The location of the accident does not automatically exclude coverage. The key factor is whether the vehicle was being used in a way that constitutes a motor accident under the Act, which includes movement on private land if the vehicle was operating in a manner that could cause injury.
What insurers consider when assessing liability
Insurers assess liability by examining whether the driver was at fault or contributed to the accident. This includes reviewing whether the driver failed to exercise reasonable care, such as by not checking for pedestrians before moving the vehicle. The presence of a child in a driveway does not automatically make the driver liable, but it does require the driver to take reasonable steps to ensure safety, particularly in areas where children may be present.
Insurers also consider the child’s age, understanding of traffic risks, and whether they were in a location where they could reasonably be expected to be safe. For example, a young child playing near a driveway entrance may not be expected to anticipate vehicle movement, which may support a finding of driver fault. Insurers may examine whether the vehicle was moving slowly, whether the driver had a clear view, and whether any warning signs or barriers were present.
Evidence that matters in driveway accident claims
The strength of a claim often depends on the evidence available. Insurers will review:
- Medical records detailing the nature and extent of the child’s injuries
- Photographs of the driveway and vehicle position at the time of the accident
- Statements from witnesses, including family members or neighbours
- Any available video footage from home security systems or nearby surveillance
- The driver’s account of the incident, including whether they saw the child before impact
- The child’s behaviour and movement at the time of the accident
Insurers may also assess whether the driveway was used for regular vehicle access, which may indicate a higher expectation of vigilance from the driver. The absence of a gate, barrier, or warning sign may also be considered as part of the overall safety context.
How location affects liability under NSW law
The legal classification of a driveway as a 'public' or 'private' space does not determine liability. Under the MAIA, a motor accident includes any incident involving a motor vehicle that results in injury, regardless of location. This means that a child injured in a private driveway may still qualify for CTP benefits if the vehicle was in motion and the driver failed to act with reasonable care.
However, the nature of the driveway and how it was used may affect the insurer’s assessment. For example, if the driveway is part of a residential estate with shared access and frequent vehicle movement, the driver may be expected to exercise greater caution. Conversely, if the driveway is rarely used and the child was in an area not typically accessible to vehicles, the insurer may assess whether the driver had any reason to expect a child to be present.
Time limits and claim procedures
A claim for injury must be made within a reasonable time after the accident. While the MAIA does not specify a fixed deadline for initiating a CTP claim, delays may affect the insurer’s ability to investigate and may impact the outcome if evidence is lost. It is advisable to notify the insurer as soon as possible after the incident.
The claim process involves submitting a claim form to the insurer, providing medical evidence, and supplying any supporting documentation. Insurers may request a formal assessment of the injury to determine eligibility for treatment and care benefits, weekly income payments, or damages.
When a dispute may arise
If the insurer denies liability or offers less than expected, the claimant may request a review. If unresolved, the matter may be referred to the State Insurance Regulatory Authority (SIRA) for dispute resolution. The claimant may also seek independent legal advice to assess whether a claim for damages is viable, particularly if the injury meets the threshold for damages under the MAIA.
Hypothetical example
A 5-year-old child was struck by a car reversing out of a driveway in a suburban area of Greater Sydney. The child was playing near the driveway entrance, and the driver reported not seeing them. The driver had a clear view but was distracted by a mobile phone. Medical records confirmed a minor concussion and soft tissue injury. The insurer reviewed the video from a nearby home camera, which showed the child was near the vehicle’s path. The insurer accepted liability based on the driver’s failure to exercise reasonable care, including not checking for pedestrians before reversing.
Next steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.