Understanding Liability in NSW CTP Partial Fault Claims
In a motor accident in New South Wales where more than one party contributed to the crash, insurers assess liability based on the Motor Accident Injuries Act 2017 (MAIA) and the Motor Accident Injuries Regulation 2017. This process determines how compensation is shared between parties, even when no single driver is entirely at fault. The insurer will assess the degree of fault for each party involved, using available evidence to assign a percentage of responsibility. This assessment directly affects the entitlement to statutory benefits, treatment and care, and any claim for damages.
How Insurers Determine Shared Liability
Insurers assess shared liability by examining all available evidence, including police reports, witness statements, photographs of the scene, vehicle damage, and any video footage. The assessment is not based on a simple yes/no determination of fault, but on a proportionate evaluation of how each party contributed to the accident. Under the MAIA, liability is not determined by a fixed rule but by a factual assessment of the circumstances as they occurred.
The insurer will consider whether a driver breached a duty of care, such as by speeding, distracted driving, or failing to yield. If more than one driver breached a duty, the insurer will apportion blame accordingly. For example, if one driver ran a red light and another was speeding through a green light, both may be found partially at fault. The insurer will then assign a percentage of fault to each party, which may result in a claim being accepted with a reduced entitlement to benefits or damages.
Statutory Benefits and the Impact of Shared Liability
Statutory benefits under the CTP scheme, including weekly income payments and treatment and care benefits, are available regardless of fault. However, when liability is shared, the insurer may apply a reduction in benefits if the claimant is found to have contributed to the accident. The insurer will not deny benefits outright but may reduce the amount payable based on the claimant’s percentage of fault.
If a claimant is found to be more than 20% at fault, they may not be eligible for damages, which are only available for injuries that meet the threshold for serious injury. This is a key point in partial fault claims: even if a claimant is partially at fault, they may still receive treatment and care benefits and weekly payments, but their ability to claim damages is limited by the 20% threshold.
Evidence That Matters in Liability Assessments
The following evidence is typically considered by insurers when assessing liability in a shared fault claim:
- A completed police report, if one was made
- Photographs of the accident scene, vehicle positions, and damage
- Witness statements, including contact details and written accounts
- Medical records showing the nature and timing of injuries
- Driving records, including any prior traffic offences
- Data from vehicle black boxes (if available)
- Statements from the claimant and other drivers involved
Preserving this evidence is critical. Insurers rely on objective records to assess fault, and delays in reporting or failing to preserve evidence may affect the outcome.
Time Limits and Dispute Options
There is a time limit for making a claim under the CTP scheme. A claim must generally be made within three years of the accident date. However, if the claimant is under 18 at the time of the accident, the time limit extends to three years after their 18th birthday.
If a claimant disagrees with the insurer’s assessment of liability, they may dispute the decision. The dispute process involves submitting a formal objection to the insurer, supported by additional evidence. If the dispute remains unresolved, the claimant may refer the matter to the State Insurance Regulatory Authority (SIRA) for review. SIRA has the authority to determine liability and entitlements under the MAIA.
Hypothetical Example: Shared Fault in a Car Park Collision
A driver enters a car park and is struck from behind by another vehicle that was not paying attention. The first driver was reversing slowly and had activated their reverse lights. The second driver was using a mobile phone and failed to stop in time. The police report notes both drivers were at fault: the first for reversing without checking, and the second for distracted driving.
The insurer assesses the fault as 40% to the first driver and 60% to the second. The second driver’s claim for weekly payments and treatment is accepted, but reduced by 60% due to their contribution to the accident. The first driver, who was not at fault, receives full entitlements. The second driver may still claim damages if their injuries meet the threshold, but only if they are not more than 20% at fault.
When to Seek Independent Advice
The process of liability assessment can be complex, particularly when fault is shared and evidence is disputed. If you believe the insurer’s assessment of fault is incorrect, or if you are unsure about your rights under the MAIA, it is advisable to seek independent legal advice. A solicitor experienced in CTP claims can review your evidence, challenge an unfair assessment, and help you understand whether a dispute or review is warranted.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.