Understanding liability in uninsured driver accidents in NSW
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).
If you were involved in a motor accident in the Blue Mountains or Nepean region where the at-fault driver did not hold valid Compulsory Third Party (CTP) insurance, you may still be entitled to compensation under the NSW CTP scheme. Insurers assess liability based on the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017, not on whether the driver had insurance at the time. Liability is determined by whether the driver was at fault for the accident, regardless of their insurance status. The absence of CTP cover does not prevent a claim, but it does mean the claim will be processed through the Nominal Defendant scheme administered by the State Insurance Regulatory Authority (SIRA).
How insurers determine liability in CTP claims
Insurers assess liability by examining whether the at-fault driver breached a duty of care under the law. This includes evaluating whether the driver was negligent, whether they were operating the vehicle in a way that caused the accident, and whether any contributing factors such as speeding, distracted driving, or failure to yield were present. The assessment is made using evidence such as police reports, witness statements, photographs of the scene, and medical records. In the Blue Mountains and Nepean, where road conditions can be steep and winding, insurers pay close attention to whether terrain, visibility, or weather contributed to the incident.
SIRA provides guidance to insurers on how to assess fault, including the application of the Motor Accident Guidelines. These guidelines require a careful review of all available evidence to determine whether the driver’s actions were a substantial cause of the accident. Insurers must not assume liability based on the absence of insurance alone. The legal test for fault remains the same whether the driver had insurance or not.
Evidence that supports a claim
To establish liability, you should gather and preserve the following evidence:
- A copy of the police report, if one was filed
- Photographs of the accident scene, vehicle damage, and road conditions
- Witness contact details and statements
- Medical records showing the nature and timing of your injuries
- A record of all treatment and care received, including dates and providers
- Any correspondence with the insurer or the driver
In the Blue Mountains and Nepean, where access to medical services may be limited, it is particularly important to document the time between the accident and the first medical assessment. Delays in seeking treatment may be used to challenge the link between the accident and your injuries, so prompt action is essential.
Time limits and claim processing
A claim must be made within two years of the accident date, or within two years of when the injury was first diagnosed, whichever is later. This applies to all CTP claims, including those involving uninsured drivers. The claim is processed through SIRA’s Nominal Defendant scheme, which handles claims where the at-fault driver does not have valid CTP insurance.
If the insurer disputes liability, you may request a review through SIRA’s dispute resolution process. You can also apply to the Civil and Administrative Tribunal (NCAT) for a determination. The process can take several months, so early documentation and communication are critical.
When to seek independent advice
While the CTP scheme provides automatic entitlement to treatment and care benefits, and weekly income payments if you are unable to work, a claim for damages (such as for pain and suffering or future care needs) requires a formal assessment. This is particularly relevant if you have a threshold injury, as defined under the Motor Accident Injuries Act 2017, which limits your ability to claim damages unless you meet the threshold test.
A hypothetical example: A pedestrian in Katoomba was struck by a car that had no CTP insurance. The driver admitted to being distracted by a mobile phone. The police report confirmed the driver was not wearing a seatbelt and had a history of traffic violations. The insurer accepted liability based on the evidence, and the claim was processed under the Nominal Defendant scheme. The injured person received treatment and care benefits, and later obtained a damages award after a medical assessment confirmed a threshold injury.
Next steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.