Understanding Shared Liability in NSW CTP Claims
In New South Wales, a motor accident involving more than one party may result in shared liability, where each driver or road user is found to have contributed to the crash. Under the Motor Accident Injuries Act 2017 (MAIA), liability is assessed on a percentage basis, meaning compensation may be reduced in proportion to the claimant’s own contribution to the accident. This does not prevent a claim from being made, but it affects the amount of compensation recoverable. The claimant remains entitled to treatment and care benefits, weekly income payments and, in some cases, damages, depending on the nature and extent of injuries and the degree of fault assigned.
Early Steps for Injured Road Users
The first actions following a motor accident involving shared liability should focus on securing medical treatment, preserving evidence, and notifying the appropriate insurer. Immediate steps include:
- Seeking medical attention and keeping all records of treatment, including diagnosis, prescribed medication, and rehabilitation plans.
- Notifying the Compulsory Third Party (CTP) insurer of the other party involved, or the insurer of the vehicle you were in, as soon as possible.
- Preserving physical evidence such as photographs of the accident scene, vehicle damage, road conditions, and any relevant signage.
- Recording details of witnesses, including names, contact information, and statements about what occurred.
- Maintaining a log of any income loss, out-of-pocket expenses, and time off work due to injury.
These steps are critical because the CTP insurer will assess liability and determine the extent of benefits payable. Delay in notifying the insurer may affect the ability to claim.
How Shared Liability Is Determined
Under the MAIA, liability for a motor accident is determined by assessing the conduct of each party involved. The insurer or a dispute resolution body may apply a percentage of fault to each party. For example, if a driver was speeding and another failed to yield at a stop sign, both may be assigned fault, say, 60% to the speeding driver and 40% to the other.
The claimant’s own fault reduces the total compensation they may receive. For instance, if a claimant is found 30% at fault, they will receive 70% of the total entitlement. This applies to both statutory benefits and damages, where applicable.
What You Can Claim in a Partial Fault Scenario
Even if you are partially at fault, you may still be entitled to:
- Treatment and care benefits for medical and rehabilitation expenses.
- Weekly income payments if you are unable to work due to injury.
- Damages for pain and suffering, loss of enjoyment of life, and future care needs, if you meet the threshold for a serious injury under the Motor Accident Injuries Regulation 2017.
The threshold for a serious injury includes permanent impairment of at least 15% to the whole person, or a permanent injury that significantly affects daily life. If your injury does not meet this threshold, your claim for damages is generally limited, and benefits are capped after 52 weeks, unless you have a qualifying threshold injury that results in ongoing treatment needs.
Evidence That Supports a Partial Fault Claim
The strength of a claim in a shared liability scenario depends on the quality and completeness of evidence. Key items include:
- Medical reports from treating practitioners, including assessments of injury severity and prognosis.
- Accident scene photographs and video footage, if available.
- Statements from witnesses, including details of speed, road conditions, and actions taken by each party.
- Police accident report, if one was prepared.
- Communications with insurers, including correspondence about liability assessments.
SIRA provides guidance on how to prepare and submit evidence through its Making a Motor Accident Claim webpage. It advises claimants to provide all available documentation to support their version of events and to request a review if they believe the liability assessment is incorrect.
Time Limits and Dispute Options
There are time limits that apply to CTP claims in NSW. A claim for damages must generally be made within three years of the accident date. For statutory benefits such as treatment and care or weekly payments, the claim must be made within two years of the accident.
If you disagree with the insurer’s assessment of your fault or the amount of benefits offered, you may request a review. SIRA provides a formal dispute resolution process through its claims portal. You may also seek independent legal advice before initiating a dispute.
Hypothetical Example: Shared Fault in a Car Park Collision
A pedestrian was struck by a car while crossing a car park at a shopping centre. The driver claims they did not see the pedestrian due to poor lighting, while the pedestrian says they were visible and the driver was distracted by a mobile phone. The police report notes no visible signs of braking and the driver admitted to using a phone at the time.
The CTP insurer assigns 70% fault to the driver and 30% to the pedestrian, based on the pedestrian’s failure to look both ways. The pedestrian receives 70% of the benefits available, including treatment for a soft tissue injury and weekly payments for 12 weeks. The pedestrian also qualifies for damages because the injury results in a 15% whole person impairment, as assessed by an independent medical practitioner.
When to Seek Independent Advice
While SIRA provides clear guidance on claim procedures, the legal and factual nuances of shared liability can be complex. If you believe the fault assessment is incorrect, if your injury has not improved as expected, or if you are unsure about the value of your claim, it may be appropriate to seek advice from a legal professional experienced in CTP claims.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.