Understanding Liability in Pillion Passenger Motor Accident Claims
A threshold injury under the Motor Accident Injuries Act 2017 (NSW) includes a soft tissue injury and a psychological or psychiatric injury that is not a recognised psychiatric illness (adjustment disorder and acute stress disorder are the usual examples; s 1.6 and Motor Accident Guidelines Part 5).
A pillion passenger injured on a motorcycle in the Illawarra or South Coast region of New South Wales may be entitled to compensation through the Compulsory Third Party (CTP) insurance scheme. Insurers assess liability based on the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017, which apply uniformly across NSW, including the Illawarra and South Coast. Liability is not automatically assumed based on the accident’s location. Instead, insurers examine whether the driver of the motorcycle was at fault for the accident, and whether the passenger’s injuries resulted from that fault. This assessment is independent of the passenger’s own actions, unless those actions contributed to the accident.
Factors Insurers Consider in Liability Assessments
Insurers evaluate several key factors when determining liability for pillion passenger injuries. These include:
- The nature and circumstances of the accident, including road conditions, weather, and traffic flow at the time.
- Whether the motorcycle driver was negligent, such as by speeding, failing to maintain control, or not observing other road users.
- The presence and reliability of any police report, including whether the driver was charged or issued a traffic infringement notice.
- The consistency of the passenger’s account with witness statements, photographs, or video evidence from nearby surveillance.
- Whether the passenger was wearing a helmet and whether any failure to wear safety equipment contributed to the injury.
SIRA guidelines confirm that CTP insurers must assess liability based on objective evidence, not assumptions. The insurer must determine whether the driver’s actions caused the accident, and whether that cause directly led to the passenger’s injuries. This process applies equally in the Illawarra and South Coast, where local road characteristics and traffic patterns may influence the factual assessment but not the legal test.
Practical Steps and Evidence to Support a Claim
To strengthen a claim, pillion passengers should take immediate steps to preserve evidence. These include:
- Seeking medical treatment as soon as possible and keeping all medical records, including diagnosis, treatment plans, and any referrals.
- Notifying the CTP insurer of the claim within a reasonable time, ideally within 28 days of the accident.
- Preserving any photographs of the accident scene, vehicle damage, or personal injuries.
- Collecting contact details of any witnesses who saw the accident.
- Retaining copies of all correspondence with the insurer, including emails and letters.
A passenger who was not at fault for the accident may still be eligible for treatment and care benefits, weekly income payments, and, if applicable, damages. The insurer will review the evidence to determine whether the claim meets the statutory threshold for damages, which requires a permanent impairment of at least 10% or a diagnosis of a threshold injury, such as a spinal nerve-root injury with neurological signs.
Time Limits and Dispute Options
There are time limits that may affect a claim. A claim for treatment and care benefits must be made within two years of the accident. A claim for damages must be made within two years of the accident date, or within two years of the date the injury was first diagnosed as a threshold injury, whichever is later. These time limits apply across NSW, including the Illawarra and South Coast.
If an insurer denies liability or offers a settlement that does not reflect the injury’s impact, the passenger may dispute the decision. Disputes can be raised through the SIRA dispute resolution process. This includes informal negotiation, mediation, or, if necessary, a formal application to the NSW Civil and Administrative Tribunal (NCAT). The passenger may also seek independent legal advice to assess the strength of their case.
Hypothetical Example: A Pillion Passenger Injury on the South Coast
A 32-year-old passenger was riding on the back of a motorcycle on the Princes Highway near Nowra when the driver lost control while attempting to avoid a vehicle that had stopped suddenly. The passenger sustained a spinal nerve-root injury with neurological signs, including numbness and weakness in the left arm. The driver was not at fault for the stop, but was found to have been speeding. The insurer initially denied liability, arguing the passenger had not worn a helmet and had not held on properly. However, the passenger provided a police report, video from a nearby business, and medical evidence confirming the injury was caused by the impact. After review, the insurer accepted liability and agreed to cover treatment and care benefits.
When to Seek Independent Advice
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.