What Changed for Shared Liability in NSW CTP Claims After 2017?
The 2017 reforms to NSW’s motor accident compensation system, implemented under the Motor Accident Injuries Act 2017 (MAIA), significantly altered how shared liability is assessed and applied in Compulsory Third Party (CTP) claims. Prior to 1 December 2017, liability was often determined on a binary basis, either one party was at fault or the accident was blameless. The new framework introduced a formal apportionment of fault between parties, allowing for partial liability to be assigned where more than one driver or road user contributed to the crash. This change means that even if an injured person was partly at fault, they may still be entitled to compensation, though the amount is adjusted according to their share of responsibility.
How Partial Fault is Determined Under Current NSW Law
Under the MAIA, fault is assessed by the insurer or, if disputed, by the State Insurance Regulatory Authority (SIRA) or a court. The law allows for a percentage of fault to be assigned to each party involved in a motor accident. For example, if a driver was distracted and failed to yield at an intersection, but the other driver was speeding, both may be found partially at fault, say, 40% and 60% respectively. The injured party’s entitlement to compensation is then reduced in proportion to their assigned fault.
This apportionment applies to all CTP claims, including those involving pedestrians, cyclists, passengers, and drivers. The process is not based on a simple 'who was wrong' determination but on a factual assessment of how each party’s actions contributed to the accident. The insurer must provide a written explanation of how fault was apportioned, and the injured person has the right to request a review or dispute the decision.
Practical Implications for Injured Road Users
The 2017 reforms mean that an injured person who was not entirely at fault may still receive compensation, but the amount will reflect their degree of responsibility. For example, if a pedestrian was crossing against a signal and was struck by a car, they may be found 30% at fault. Their entitlement to weekly income payments, treatment and care benefits, and damages for pain and suffering would be reduced by 30%. This is a shift from the previous system, where a minor fault could result in a complete denial of benefits.
The reforms also clarify that compensation is not automatically denied if a claimant is partially at fault. Instead, the focus is on fairness and proportionality. The injured person’s entitlement to treatment and care benefits, and to weekly income payments, remains protected as long as they were not entirely at fault. However, the calculation of damages for non-economic loss (such as pain and suffering) is directly affected by the fault percentage.
Evidence That Matters in Shared Liability Claims
To support a claim involving shared liability, the injured person should gather and preserve the following evidence:
- A completed accident report, if available, including details of the location, weather, and vehicle movements.
- Photographs of the scene, vehicle damage, road markings, and any visible hazards.
- Witness contact details and statements, if available.
- Medical records documenting the injury and treatment received.
- A copy of the insurer’s written response to the claim, including any fault apportionment.
- Any correspondence with the insurer regarding the claim, including emails, letters, or SMS messages.
These records are critical in establishing the circumstances of the accident and in challenging a fault determination if it appears inaccurate or unfair.
Time Limits and Dispute Options
A claim for compensation must generally be made within three years of the motor accident, as set out in the Motor Accident Injuries Act 2017. This time limit applies regardless of whether fault is shared. If a claim is not made within this period, the right to compensation may be lost.
If the injured person disagrees with the insurer’s assessment of their share of fault, they may request a review. The insurer must provide a written explanation of the decision. If the dispute remains unresolved, the claimant may apply to SIRA for a review or initiate legal proceedings in the District Court.
Hypothetical Example: Shared Liability in a Car-Park Collision
A pedestrian was struck by a car while crossing a car park at a shopping centre. The driver claimed they did not see the pedestrian due to a blind spot, but the pedestrian was walking across a poorly lit area without using a designated crossing. The insurer assessed the driver as 70% at fault and the pedestrian as 30% at fault. The pedestrian received 70% of the weekly income payments and treatment and care benefits, and 70% of the damages for pain and suffering. The 30% fault deduction was applied to all compensation components, including future loss of earnings and non-economic loss.
Next Steps for Injured Persons
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.