How insurers assess liability in fatal motor accidents
Where a person's only injuries resulting from the accident are threshold injuries, weekly benefits and treatment and care generally cease after 52 weeks (ss 3.11 and 3.28).
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).
When a fatal motor accident occurs in New South Wales, insurers assess liability under the Motor Accident Injuries Act 2017 (MAIA) to determine compensation for dependants. This process involves evaluating fault, applying SIRA’s guidelines, and verifying the legal basis for claims. Regional NSW claims may face additional challenges due to limited access to legal resources or specialist assessors.
Key factors insurers consider
Insurers evaluate liability by examining:
- Fault: Whether the driver or vehicle involved breached a duty of care. Fault may be shared if multiple parties contributed to the accident.
- Contributory fault: If the claimant or their dependants contributed to the accident, this may reduce compensation.
- Threshold injury: For fatal claims, insurers assess if the deceased met the definition of a 'threshold injury' under the MAIA. This includes injuries requiring medical treatment and resulting in significant impairment.
- Evidence of causation: Insurers require medical records, accident reports, and expert opinions to link the accident to the injury or death.
SIRA’s role in regional claims
The State Insurance Regulatory Authority (SIRA) oversees CTP claims and provides guidelines for assessing liability. In regional NSW, claimants may need to:
- Submit claims through the NSW Government’s online portal or via a solicitor.
- Seek independent medical assessments to prove the deceased’s injury met the threshold.
- Provide evidence of dependants’ financial reliance on the deceased, such as income records or care arrangements.
SIRA’s guidelines emphasize that insurers must act fairly, but claimants in regional areas may face delays in accessing specialist assessors or legal advice.
Proving liability for fatal claims
To establish liability, claimants must:
- Notify the insurer: Inform the at-fault driver’s insurer within 52 weeks of the accident. Delays may jeopardize claims.
- Gather evidence: Collect medical records, witness statements, and accident reports. For fatal claims, a coroner’s report may be required.
- Demonstrate dependants’ loss: Show how the deceased’s death caused financial or emotional harm to dependants. This includes lost income, care costs, and potential future earnings.
Time limits and disputes
Claims must be submitted within 52 weeks of the accident. If an insurer disputes liability, claimants may need to:
- Request a review of the insurer’s decision.
- Seek mediation through SIRA.
- Consult a solicitor to challenge the assessment, especially if the claimant believes the insurer has acted unfairly.
When to seek advice
Regional NSW claimants should seek legal advice if:
- The insurer denies liability without clear reasoning.
- The claimant is unsure how to prove dependants’ financial reliance.
- The accident occurred in a car park, driveway, or private property (as these may require nuanced legal analysis).
Next steps
Fatal motor accident claims in NSW depend on proving fault, meeting threshold injury criteria, and gathering robust evidence. Regional claimants may face additional hurdles in accessing legal resources. To request contact about your circumstances, complete the quick, no obligation enquiry form.