Understanding Partial Fault in NSW CTP Claims
In a motor accident in New South Wales, if more than one driver or party contributed to the crash, the law allows for a shared liability assessment. This means compensation under the Compulsory Third Party (CTP) insurance scheme may be reduced proportionally based on the degree of fault assigned to each party. The Motor Accident Injuries Act 2017 (MAIA) and the Motor Accident Injuries Regulation 2017 govern how fault is assessed and how benefits are calculated. The outcome depends on the actual conduct of each party, not just who was at the scene. This article explains how partial fault is determined, what it means for compensation, and provides practical examples from across NSW.
How Fault Is Assessed in NSW CTP Claims
Under the CTP scheme in NSW, fault is not assumed to be 100% with one driver. Instead, the insurer or the State Insurance Regulatory Authority (SIRA) assesses the degree of fault for each party involved. This is known as a comparative fault assessment. The assessment is based on the actual actions that led to the accident, including driver behaviour, road conditions, and any failure to follow traffic laws.
SIRA uses a standard process to determine fault. It reviews all available evidence, including police reports, witness statements, photographs, and medical records. The final determination is made by the insurer managing the claim, but it must be consistent with SIRA’s guidelines. If there is a dispute, the claim may be referred to a review or, in some cases, to the NSW Civil and Administrative Tribunal (NCAT).
Practical Examples of Shared Liability in NSW
Example 1: Driver Running a Red Light While Another Turns Without Yielding
A driver approaches a traffic light at a major intersection in Sydney. The light turns red, but the driver continues through the intersection. At the same time, a second driver is turning right from a side street and fails to yield to oncoming traffic. The two vehicles collide. The police report notes that both drivers were at fault: the first for running the red light, the second for not giving way.
SIRA’s assessment would likely assign 60% fault to the driver who ran the red light, and 40% to the driver who failed to yield. As a result, the injured party (e.g., a passenger in the vehicle that ran the red light) would receive 60% of the CTP benefits they would have received if they were not at fault. This includes treatment and care benefits, weekly income payments, and, if applicable, damages for non-economic loss.
Example 2: Cyclist and Driver Sharing Responsibility in a Car Park
A cyclist is riding through a car park in Wollongong when a driver backs out of a parking space without checking. The cyclist swerves to avoid the vehicle but collides with a parked car. The driver admits to not checking behind before reversing. The cyclist was riding at a moderate speed and did not have a light, but there was no evidence of reckless behaviour.
SIRA may determine that the driver was 70% at fault for reversing without due regard, and the cyclist 30% for not using a light in low visibility. The injured cyclist would then receive 70% of the benefits they would have received if they were not at fault. This includes coverage for medical treatment, lost income, and, if the injury exceeds the threshold, damages for pain and suffering.
What Benefits Are Affected by Partial Fault?
When fault is shared, the amount of compensation received is reduced in proportion to the assigned fault. This applies to all CTP benefits under the MAIA, including:
- Treatment and care benefits
- Weekly income payments (if the injury prevents work)
- Damages for non-economic loss (if the injury meets the threshold)
The reduction applies to the total entitlement, not to individual components. For example, if a claimant is found 40% at fault, they receive 60% of the full benefit amount. This is true even if the claimant was not at fault for the injury itself, but contributed to the accident.
Evidence That Matters in Partial Fault Claims
To support a claim with shared liability, the following evidence is typically required:
- A completed police report, if one was issued
- Photographs of the scene, vehicle damage, and road conditions
- Witness statements, including contact details
- Medical records detailing the injury and treatment
- A statement from the claimant describing the sequence of events
- Any video footage from dash cameras or nearby surveillance
The insurer will assess all evidence to determine fault. It is important to preserve all documentation and not to alter or delete any material information. Inaccurate statements may affect the final assessment.
Time Limits and Dispute Options
There is a time limit to make a claim under the CTP scheme. Generally, a claim must be made within three years of the accident date. However, if the injury is not immediately apparent, the time limit may begin from the date the injury was first diagnosed.
If a claimant disagrees with the assigned fault level, they may request a review from the insurer. If the dispute remains unresolved, the claimant may apply to NCAT for a determination. The process is formal, and legal advice is often useful at this stage.
When to Seek Independent Advice
Partial fault claims can be complex, particularly when fault is disputed or when the injury is serious. The impact on compensation, especially for damages, depends on the final fault determination. It is advisable to seek independent legal advice if:
- The insurer disputes the claim or offers a settlement that seems low
- The claimant believes the fault assessment is inaccurate
- The injury is serious and may qualify for damages
- There is a dispute over the amount of weekly payments or treatment coverage
A legal adviser can help interpret the evidence, challenge an unfair assessment, and ensure all rights under the MAIA are protected.
Next Step: Assess Your Circumstances
Every claim depends on its own facts. The way fault is assigned, and how it affects compensation, will vary based on the accident details, injury type, and evidence available. If you have been involved in a motor accident where fault was shared, you may be entitled to CTP benefits, but the amount will depend on the final determination.
To request contact about your circumstances, complete the quick, no obligation enquiry form.