Understanding Shared Fault in NSW CTP Claims
When a motor accident involves more than one driver, and each party contributed to the crash, the issue of shared liability arises. In New South Wales, this is governed by the Motor Accident Injuries Act 2017 (MAIA), which applies to all motor accidents occurring on or after 1 December 2017. Under this law, fault is assessed on a percentage basis, and compensation is calculated accordingly. A claimant may be found to have contributed to the accident, which reduces their entitlement to benefits and damages. The key point is that shared fault does not prevent a claim; it alters the outcome based on the degree of responsibility assigned.
Dispute Resolution Options Under NSW CTP Law
If a claimant disagrees with the insurer’s assessment of fault or the resulting compensation offer, several dispute resolution options are available under the SIRA (State Insurance Regulatory Authority) framework. These options are designed to resolve disagreements without proceeding to court. The primary pathways are:
- Internal review by the insurer
- Mediation through SIRA
- Application to the Personal Injury Commission (PIC)
The insurer must provide a written explanation of their decision on fault and benefits within 28 days of receiving a claim. If the claimant disputes the outcome, they may request an internal review. This review must be completed within 42 days of the request. The insurer must notify the claimant of the result in writing.
Mediation and the Personal Injury Commission
If the internal review does not resolve the dispute, the next step is mediation through SIRA. Mediation is a voluntary process where a neutral third party helps the parties reach a settlement. It is not binding unless both parties agree to the outcome. Mediation is often used to resolve disputes about fault percentages, the value of damages, or the level of treatment and care benefits.
If mediation fails, or if the claimant wishes to challenge a decision on a legal or medical basis, they may apply to the Personal Injury Commission. The PIC has jurisdiction to review decisions on fault, impairment, and the amount of damages. A claimant may apply to the PIC if they believe the insurer has made an error in law, fact, or medical assessment. The PIC can confirm, vary, or set aside a decision. It may also order a medical assessment if there is a dispute about the nature or extent of an injury.
Practical Steps and Evidence That Matter
To support a dispute about shared fault, a claimant should gather and preserve the following evidence:
- Official accident report (e.g., from NSW Police)
- Photographs of the scene, vehicle damage, and road conditions
- Statements from witnesses
- Medical records detailing injuries, treatment, and prognosis
- A copy of the insurer’s decision letter, including the assigned fault percentage
- Any correspondence with the insurer
A medical report from an independent specialist may be necessary if there is a dispute about the cause of an injury or the level of impairment. The Motor Accident Injuries Regulation 2017 and the Motor Accident Guidelines set out the standards for assessing impairment, including for soft-tissue injuries and spinal nerve-root injuries.
Time Limits and Procedural Requirements
Time limits apply to dispute resolution processes. A claimant must request an internal review within 28 days of receiving the insurer’s decision. If mediation is pursued, it must be initiated within 90 days of the insurer’s final decision. An application to the Personal Injury Commission must be made within 12 months of the insurer’s final decision, unless an extension is granted.
For example, if the insurer agrees to pay treatment and care benefits but disputes the fault percentage, those payments will continue. However, weekly income payments and damages may be withheld pending resolution.
Hypothetical Example: Resolving a Shared Fault Dispute
A cyclist was struck by a car while crossing a road at a marked pedestrian crossing. The insurer assessed the cyclist as 20% at fault for not looking before crossing. The cyclist believes they were not at fault and disputes the assessment. They request an internal review, which confirms the 20% fault. The cyclist then applies for mediation through SIRA. During mediation, the insurer provides a witness statement from a driver in a nearby vehicle who saw the cyclist stop and proceed. The mediator helps both parties agree to a 10% fault for the cyclist, which is accepted. The claim proceeds on that basis.
When to Seek Independent Advice
Disputes involving shared fault, medical assessments, or complex liability issues often require independent legal advice. A solicitor experienced in motor accident claims can help assess the strength of a dispute, prepare evidence, and represent the claimant at the Personal Injury Commission. The decision to challenge a fault assessment or damages offer should not be made without understanding the legal and procedural risks involved. An unsuccessful challenge may result in the claimant being required to pay some or all of the insurer’s legal costs.
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