Understanding Partial Fault in NSW CTP Claims
In a motor accident in New South Wales, if more than one driver contributed to the crash, the law allows for shared liability. This means each party may be assigned a percentage of fault, which affects the amount of compensation they can receive under the Compulsory Third Party (CTP) insurance scheme. The Motor Accident Injuries Act 2017 (MAIA) governs this process. Under the Act, a person’s entitlement to CTP benefits, such as treatment and care, weekly income payments, and damages, is reduced in proportion to their own fault. For example, if a driver is found 30% at fault, they will receive 70% of the benefits they would have received had they been fully blameless.
This principle applies equally to people who were not driving but were injured in the accident, including passengers, pedestrians, cyclists, and motorcyclists. The assessment of fault is made by the insurer or, if disputed, by the State Insurance Regulatory Authority (SIRA) or a court. The determination of fault does not depend on who caused the accident, but on the degree to which each party contributed to the crash.
Caregiver and Family Considerations in Shared Liability Claims
When a person who provides care for a child, elderly relative, or disabled family member is injured in a motor accident, the impact of partial fault can be particularly significant. The CTP scheme recognises that a caregiver’s injury may result in a loss of unpaid care services, which can be claimed as a form of damages. This is known as a 'loss of care' claim and is available under the MAIA.
If the caregiver is found to have contributed to the accident, their entitlement to claim for loss of care may be reduced. For example, if a parent who regularly cares for a disabled child is injured and assigned 20% fault, their claim for loss of care will be reduced by 20%. This reduction applies to all CTP benefits, including damages for future care needs.
SIRA’s guidance confirms that the value of care services provided by a family member is assessed based on the cost of replacing that care with a professional carer. The claimant must provide evidence of the care they provided before the accident, such as records of daily tasks, medical appointments, and support routines. The level of fault assigned to the claimant will directly affect the final compensation amount for this loss.
Practical Steps and Evidence That Matter
To support a CTP claim involving a caregiver or family member, it is essential to gather and preserve evidence that demonstrates the nature and extent of the care provided. This includes:
- A detailed diary or log of daily care activities, including time spent on tasks such as bathing, medication management, transport to appointments, and emotional support.
- Medical reports from the care recipient’s treating practitioner that confirm their dependency and the need for ongoing assistance.
- Statements from family members, healthcare workers, or support services that confirm the claimant’s role in the care network.
- Records of any changes in care needs since the accident, including increased professional care costs.
Photographs of the care recipient, accident scene diagrams, and witness statements may also be useful. If the accident occurred in a private driveway, car park, or on private property, it may still be covered by CTP insurance, but the insurer may challenge the claim on grounds of location or use of the vehicle. SIRA confirms that CTP coverage extends to accidents on private property if the vehicle was being used for a purpose connected to travel, such as going to work, shopping, or transporting a family member.
Time Limits and Dispute Options
A claim for CTP compensation must generally be made within three years of the accident date. This time limit applies to all claims, including those involving shared liability. If a claim is not made within this period, the right to claim may be lost, unless an extension is granted by a court.
If an insurer disputes the assigned fault level or the value of a loss of care claim, the claimant may request a review. SIRA provides a formal dispute resolution process, which includes mediation and, if necessary, a determination by a tribunal. The claimant may also seek independent legal advice to assess whether to proceed to a formal dispute or to negotiate a settlement.
In cases where a family member was injured and the claimant is a caregiver, the emotional and financial burden of navigating a partial fault claim can be substantial. The SIRA website notes that claimants may be eligible for a temporary payment to cover urgent care needs while the claim is being processed, but this is not automatic and must be applied for.
A Realistic Example: A Parent’s Shared Liability Claim
A mother was a passenger in a car that collided with another vehicle at a roundabout. She was not driving but was responsible for caring for her 12-year-old son, who has a chronic neurological condition requiring daily supervision. The accident report and witness statements indicated that the mother’s vehicle had failed to yield at the roundabout, but the other driver had been speeding. The insurer assigned 40% fault to the mother’s vehicle and 60% to the other driver.
The mother applied for CTP benefits, including weekly income payments and damages for loss of care. Because she was found 40% at fault, her entitlement to damages for loss of care was reduced by 40%. She provided a log of her daily care activities, a letter from her son’s specialist, and a quote from a professional care provider to demonstrate the cost of replacing her services. The insurer accepted the evidence and paid a reduced but substantial amount.
Next Steps for Caregivers and Families
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.