Understanding Liability in Wildlife Animal Strike Accidents
In regional New South Wales, a motor vehicle accident involving a wildlife animal, such as a kangaroo, wallaby, or emu, is assessed for liability under the Compulsory Third Party (CTP) insurance scheme. Insurers determine liability based on whether the driver took reasonable steps to avoid the animal, not on fault in the traditional sense. The Motor Accident Injuries Act 2017 and SIRA guidelines state that a driver is not automatically liable simply because they struck an animal. Instead, liability turns on whether the driver acted reasonably under the circumstances, including whether they were driving within the speed limit, maintaining control, and taking evasive action that was appropriate to the situation.
What Insurers Consider When Assessing Liability
Insurers assess liability by examining several practical and factual elements. These include:
- Whether the driver was travelling at a reasonable speed for the road and weather conditions
- Whether the driver had a clear view of the animal and sufficient time to react
- Whether the driver took reasonable evasive action, such as braking or steering away, without losing control
- Whether the vehicle was maintained in a roadworthy condition
- Whether the driver was distracted or impaired at the time
In regional areas, where roads are often unlit, narrow, and bordered by bushland, insurers are more likely to consider the natural risk of animal strikes. They may accept that a driver could not have avoided the animal, particularly if the animal appeared suddenly and unexpectedly. However, if a driver swerved into oncoming traffic or a ditch, resulting in a more serious collision, insurers may find the driver contributed to the harm and apply a contributory fault deduction.
Evidence That Supports a Claim
To support a claim, claimants should gather and preserve the following evidence:
- Photographs of the animal at the scene, the vehicle damage, and the road conditions
- A police report, if one was filed (even if not for a traffic offence)
- Medical records showing injuries sustained during or after the accident
- Witness statements, if available
- A statement from the driver describing the sequence of events
- A log of any treatment received, including time off work
SIRA notes that even if a driver was not at fault, they may still be eligible for CTP benefits such as treatment and care, weekly income payments, and, if applicable, damages for injury. The presence of a reasonable attempt to avoid the animal strengthens a claim, particularly where the driver was not negligent.
When Liability Is Not Determined by Fault
Under the CTP scheme, liability is not determined in the same way as in a common law damages claim. The CTP scheme provides benefits regardless of fault, so long as the accident occurred in a motor vehicle and the injury was caused by a motor vehicle. This means a driver who struck an animal while driving safely may still receive treatment and care benefits and weekly payments, even if the insurer later finds they were not at fault.
However, if a claimant seeks damages for injury, they must meet the threshold for a serious injury under the Motor Accident Injuries Act 2017. This includes injuries that result in a permanent impairment of at least 15% of the whole person, or a permanent loss of function. For a wildlife strike, a claimant must demonstrate that the injury was caused by the impact or the evasive action, not by pre-existing conditions.
Practical Steps After a Wildlife Strike
If you were involved in a wildlife strike in regional NSW, take the following actions immediately:
- Check for injuries and seek medical attention, even if symptoms are delayed
- Report the accident to police if there was significant damage or injury
- Take photographs of the scene, the animal, and the vehicle damage
- Note the time, weather, and road conditions
- Contact your CTP insurer to report the claim and request a green slip (CTP insurance) claim form
- Keep all records of medical treatment, lost income, and out-of-pocket expenses
Delaying a claim or failing to report it may affect eligibility for benefits. SIRA states that claims must be made within three years of the accident, but it is best to begin the process as soon as possible to preserve evidence.
Hypothetical Example: A Driver Avoids a Kangaroo on a Regional Highway
A driver on a rural highway in northern NSW was travelling at 90 km/h in clear weather when a kangaroo leapt into the path of the vehicle. The driver braked hard and swerved to the left, narrowly avoiding a head-on collision with an oncoming car. The vehicle skidded into a ditch, and the driver sustained a whiplash injury. The vehicle sustained front-end damage, and the kangaroo was found dead near the road.
The insurer assessed the driver’s actions as reasonable. The driver was not speeding, had a clear view, and took evasive action to avoid a more serious crash. No fault was attributed, and the driver received treatment and care benefits and weekly income payments. The claim was accepted under the CTP scheme because the injury was directly linked to the accident and not pre-existing.
When to Seek Independent Advice
If your claim is denied or you are asked to accept a settlement that does not cover your medical costs or lost income, you may wish to seek independent legal advice. This is especially important if:
- The insurer disputes whether the animal strike caused your injury
- You have a serious or permanent injury and wish to pursue damages
- You were found to have contributed to the accident (e.g., by speeding or distracted driving)
- You believe the insurer has not properly assessed your claim under the Motor Accident Injuries Act 2017
SIRA provides guidance on dispute resolution and review processes, but an independent legal adviser can help you understand your rights and options under NSW law.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.