Understanding Shared Liability in NSW CTP Claims
In New South Wales, a motor accident claim may involve shared liability when more than one party contributed to the crash. Under the Motor Accident Injuries Act 2017 (MAIA), this means that fault is divided between drivers, passengers, pedestrians, or cyclists involved in the incident. The division of fault does not prevent a claim for compensation, but it directly affects the amount of benefits available. A common mistake is assuming that partial fault means no compensation. This is incorrect, compensation may still be payable, but it is reduced in proportion to the claimant’s share of responsibility.
How Shared Liability Impacts CTP Compensation
Under the CTP scheme in NSW, compensation is not automatically denied because a claimant shares fault. The insurer must assess the degree of fault for each party involved. If a claimant is found to be 30% at fault, they may still receive 70% of the benefits they would have received if they were not at fault. This apportionment applies to treatment and care benefits, weekly income payments, and damages for pain and suffering, where applicable.
A frequent error is failing to challenge a fault assessment that appears inaccurate or unsupported by evidence. Insurers may assign a higher fault percentage than warranted, particularly in complex or disputed crashes. Claimants should not accept a fault determination without review, as it can significantly reduce the value of the claim.
Common Mistakes to Avoid
The most frequent errors in partial fault CTP claims include:
- Failing to report the accident to the insurer within a reasonable time, which may affect the insurer’s ability to investigate and assess fault.
- Not preserving physical evidence such as photographs of vehicle damage, road conditions, or witness contact details.
- Delaying or withholding medical treatment, which may be used to challenge the claimant’s injury severity or the link between the accident and the injury.
- Assuming that a claim will be denied because they were partly at fault, when in fact the CTP scheme allows for compensation even in shared liability scenarios.
- Providing inconsistent statements to the insurer or medical practitioners, which can undermine credibility and affect the assessment of fault and injury.
Evidence That Matters in Shared Liability Claims
To support a claim where fault is shared, claimants should gather and retain:
- A copy of the police report, if one was prepared.
- Photographs of the scene, vehicle damage, and any visible road hazards.
- Contact details for any witnesses, including their statements.
- Medical records from the time of the accident through to recovery, including assessments of injury severity and treatment progress.
- Records of lost income, if applicable, such as payslips or employer letters.
- Correspondence with the insurer, including any fault assessment documents.
These records help demonstrate the circumstances of the crash and support a fair assessment of fault and injury impact.
Time Limits and Dispute Options
There is no fixed deadline for making a CTP claim in NSW, but delays may affect the insurer’s ability to investigate. It is advisable to notify the insurer as soon as possible after the accident.
If a claimant disagrees with the insurer’s assessment of fault or the amount of compensation offered, they may dispute the decision. Under the MAIA, a claimant can request a review from the insurer or apply to the Civil and Administrative Tribunal (NCAT) for a determination. The process for a dispute must be initiated within a reasonable time, and evidence must be submitted to support the claim.
When to Seek Independent Advice
Shared liability claims often involve complex assessments of fault, injury causation, and benefit entitlements. A claimant may not fully understand how fault is calculated or how it affects their entitlements. For example, a claimant who was partly at fault may still qualify for damages if they have a threshold injury, but only if they meet the criteria under the Motor Accident Injuries Act 2017.
It is advisable to seek independent legal advice before accepting a settlement offer, especially if:
- The insurer has assigned a high level of fault to the claimant.
- The claim involves a threshold injury and the claimant is seeking damages.
- There is a dispute over the extent of injury or the link to the accident.
Hypothetical Example
A pedestrian was struck by a car while crossing a road at a marked crossing. The driver claimed they had stopped at a red light and the pedestrian stepped into the road without looking. The insurer assigned 40% fault to the pedestrian. The pedestrian sustained soft tissue injuries and was off work for six weeks. The insurer offered a settlement based on 60% compensation. The pedestrian consulted a legal adviser who reviewed the police report, witness statements, and medical records. The adviser argued that the driver had failed to yield despite a green light, and that the pedestrian had been looking both ways before crossing. The claim was re-assessed and the fault was adjusted to 20% for the pedestrian. The final settlement was significantly higher than the initial offer.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.