Understanding Driveway Child Pedestrian Claims in NSW
A child injured in a driveway in Greater Sydney may be eligible for compensation under the NSW Compulsory Third Party (CTP) insurance scheme. This eligibility depends on whether the incident occurred during a motor vehicle accident as defined by the Motor Accident Injuries Act 2017 (MAIA). SIRA, the State Insurance Regulatory Authority, administers the CTP scheme and interprets the law to determine whether a claim is valid. The location of the incident, such as a private driveway, does not automatically exclude coverage. The key factor is whether the vehicle was being used in a way that constitutes a motor vehicle accident under the law, regardless of whether the incident occurred on public roads, in a car park, or on private property.
What SIRA Considers for Driveway Accidents
SIRA assesses whether a motor vehicle accident occurred by examining the use of the vehicle and the surrounding circumstances. For a child struck in a driveway, the focus is on whether the vehicle was being operated in a motor vehicle accident context. This includes situations where a vehicle was being driven, reversed, or manoeuvred in a way that created a risk of injury to a pedestrian. The fact that the incident occurred on private property does not prevent a claim if the vehicle was being used in a manner that would normally be considered a driving activity.
SIRA does not require fault to be established for entitlement to treatment and care benefits or weekly income payments. However, fault may affect eligibility for damages. The CTP scheme provides benefits regardless of who was at fault, but a claim for damages, such as for pain and suffering or loss of income, requires a determination of fault or contributory fault under the MAIA.
Evidence Required to Support a Claim
To establish a claim for a child injured in a driveway, the following evidence is typically required:
- A medical record confirming the injury, including diagnosis, treatment provided, and any ongoing impact on the child’s health.
- A statement from the child’s parent or guardian describing the incident, including the time, weather, lighting conditions, and how the child was positioned at the time of impact.
- Photographs of the driveway, the vehicle’s position, and any visible damage to the vehicle or surrounding area.
- Witness statements, if available, describing what occurred.
- A police report, if one was filed. While not mandatory, a report can help establish the facts.
- A record of any medical treatment, including follow-up appointments, rehabilitation, and any time off school.
SIRA may also consider whether the vehicle was being driven in a way that posed a foreseeable risk to pedestrians, particularly children. For example, if a vehicle was reversing slowly in a residential driveway without checking behind, and a child was present, this may support a finding of a motor vehicle accident under the MAIA.
How NSW CTP Rules Differ for Driveway vs. Public Road Incidents
The legal framework for CTP claims is the same regardless of location. However, the interpretation of what constitutes a motor vehicle accident may differ based on context. In public areas such as crosswalks, the presence of traffic signals, signage, and pedestrian crossings provides clear context. In driveways, the absence of such infrastructure means SIRA relies more heavily on the surrounding circumstances to determine whether a motor vehicle accident occurred.
A key distinction is that a child struck in a driveway may not be considered a pedestrian under the MAIA if the vehicle was not being used in a way that would normally involve a risk to pedestrians. For example, if a vehicle was parked and the child approached it while it was stationary, SIRA may not consider this a motor vehicle accident. But if the vehicle was being driven, even slowly, and the child was struck while moving through the driveway, this may satisfy the definition.
SIRA also applies the Motor Accident Guidelines when assessing injury severity. For example, if the child sustained a soft tissue injury, SIRA will assess whether it meets the threshold for damages under the MAIA. A spinal nerve-root injury that causes neurological signs other than radiculopathy may still qualify as a threshold injury. However, if the only injuries are threshold injuries, weekly benefits and treatment and care benefits are generally limited after 52 weeks, as provided under the Act.
Time Limits and Claim Process
A claim for a child injured in a driveway must be made within the time limits set out in the MAIA. While the general time limit for making a claim is three years from the date of the accident, it is advisable to notify the insurer as soon as possible. Delay may affect the ability to obtain evidence or may result in a claim being disputed.
SIRA provides a standard process for making a claim. The claimant must notify the insurer of the vehicle involved, provide details of the injury, and submit supporting evidence. SIRA may request additional information or conduct an assessment to determine eligibility.
If a claim is denied, the claimant may request a review. Disputes can be referred to the NSW Civil and Administrative Tribunal (NCAT) for determination. The process is not automatic, and the claimant must initiate it.
When to Seek Independent Advice
While SIRA provides guidance, each case depends on the specific facts. The interpretation of whether a driveway incident constitutes a motor vehicle accident can vary based on the vehicle’s movement, the child’s actions, and the surrounding environment. A claim may be denied if SIRA determines the vehicle was not being used in a way that constitutes a motor vehicle accident under the MAIA.
A parent or guardian may benefit from independent legal advice to assess whether the facts support a claim, particularly if the child has sustained a serious injury or if the insurer has denied benefits. Legal advice can help determine whether a claim for damages is viable, whether fault is likely to be established, and whether a dispute should be pursued.
Hypothetical Example
A 7-year-old child was struck by a reversing car in a residential driveway in Sydney’s Inner West. The vehicle was being driven by the child’s parent, who had not checked behind before reversing. The child sustained a concussion and required medical treatment. The parent reported the incident to the insurer within a week and provided medical records, a statement, and photographs of the driveway and vehicle. SIRA accepted the claim as a motor vehicle accident under the MAIA, and the child received treatment and care benefits and weekly income payments. The claim for damages was later resolved through settlement after a determination of fault.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.