Understanding Failure to Give Way Accidents in NSW
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).
A failure to give way accident occurs when one driver does not yield the right of way at an intersection, roundabout, or give-way sign, resulting in a collision. In Greater Sydney, these incidents are common due to high traffic volumes, complex road layouts, and frequent intersections. Under the Motor Accident Injuries Act 2017 (MAIA), the driver who fails to give way may be considered at fault, which can support a claim for compensation through the Compulsory Third Party (CTP) insurance scheme. However, not all claims succeed, and several common mistakes can undermine a claim, even when fault appears clear.
Common Mistakes That Can Undermine a CTP Claim
Claimants often make preventable errors that weaken their CTP claim. The most frequent include:
- Failing to report the accident to the CTP insurer within a reasonable time, which may affect the insurer’s ability to investigate.
- Not seeking medical treatment promptly, which can lead to a lack of objective evidence linking injuries to the accident.
- Assuming that fault is automatic when a give-way sign is ignored, without verifying whether the other driver was legally required to yield under the Road Rules 2014.
- Not recording details of the accident at the scene, such as the position of vehicles, road markings, weather, and witness contact information.
- Delaying or failing to provide medical records, treatment notes, or a formal assessment of injury to the insurer.
These actions may not invalidate a claim, but they can reduce the likelihood of a successful outcome, particularly if the insurer disputes liability or the extent of injury.
What Matters in a CTP Claim After a Failure to Give Way Accident
To support a claim, the injured person must establish that the accident occurred, that the other driver failed to give way, and that this failure caused the injury. The following evidence is typically critical:
- A police report, if one was filed at the scene.
- Photographs or videos of the accident scene, including road signs, vehicle positions, and damage.
- Witness statements, including contact details and a written account.
- Medical records showing the timing of injury, diagnosis, and treatment.
- A medical practitioner’s report confirming that the injury arose from the motor accident.
In Greater Sydney, intersections with complex signage, traffic lights, and shared road use (e.g., bike lanes, bus stops) can complicate fault assessment. For example, a driver may believe they had the right of way, but a traffic camera or witness may show otherwise. The insurer may also argue that the claimant contributed to the accident through their own actions, such as distracted driving or speeding.
Time Limits and Procedural Requirements
Under the MAIA, a claim for compensation must generally be made within three years of the accident date. However, the insurer may require a claim to be notified within 28 days of the accident to allow for timely investigation. Failure to notify within this period may result in the insurer refusing to process the claim, though this is not automatic.
If the insurer denies liability or offers a settlement that does not cover all losses, the claimant may request a review or apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. The claimant must keep all correspondence, including emails and letters, and retain copies of medical and financial records.
When to Seek Independent Advice
A common mistake is assuming that CTP insurance will cover all losses without understanding the limits of coverage. For example, if a claimant suffers a threshold injury (such as a whiplash injury with lasting symptoms), the weekly benefits and treatment and care benefits are generally limited to 52 weeks under the MAIA, unless a higher threshold is met. This means that even if fault is clear, compensation for ongoing pain and loss of function may be restricted.
Another common error is not understanding the difference between statutory benefits (provided by CTP insurance) and damages (available only if a threshold injury is sustained and the claimant meets the impairment threshold). A claimant who believes they are entitled to damages may not realise that a medical assessment of whole person impairment is required, and that the claim must be made within the statutory timeframes.
A hypothetical example: A pedestrian in Sydney’s inner west was struck by a car at a crosswalk where a give-way sign was present but not clearly visible due to fog. The driver claimed they did not see the pedestrian. The pedestrian reported the incident to police and sought medical treatment within 24 hours. The insurer initially denied liability, but a witness statement and a camera from a nearby business supported the pedestrian’s account. The claim was later accepted, and the pedestrian received treatment and care benefits. However, because the injury was classified as a soft-tissue injury with no permanent impairment, damages were not awarded.
Next Steps for Claimants
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.