How Insurers Assess Liability in Wildlife Animal Strikes in NSW
In a wildlife animal strike accident on a NSW road, insurers assess liability under the Motor Accident Injuries Act 2017 (MAIA), which governs all Compulsory Third Party (CTP) claims in New South Wales. Liability is not automatically determined by the presence of an animal. Instead, insurers examine whether the driver’s actions were reasonable in avoiding the animal, and whether the driver had a duty to act to prevent a collision. This assessment is made under the principle that a driver must act as a reasonable person would in similar circumstances.
In Greater Sydney, where traffic density and road speeds vary significantly, insurers consider whether the driver had sufficient time and space to stop or swerve safely. A sudden swerve that causes a single-vehicle crash may still be considered reasonable if the driver was attempting to avoid a large animal such as a kangaroo, wallaby, or emu, especially on rural-urban fringe roads. However, if the driver was speeding, distracted, or failed to maintain control, the insurer may find the driver contributed to the accident.
Factors Insurers Consider in Liability Assessments
Insurers rely on several key factors to determine liability in wildlife strike claims. These include:
- Whether the animal was visible in time for the driver to react reasonably
- Whether the driver was operating the vehicle at a safe speed for the conditions
- Whether the driver had a clear opportunity to stop or avoid the animal without endangering others
- Whether the driver was distracted (e.g., using a mobile phone) or impaired
- Whether the driver had previously been involved in similar incidents
The presence of a road sign warning of animal crossings may also be considered. However, a sign does not automatically shift liability to the driver. The insurer will assess whether a reasonable driver would have adjusted their behaviour in response to the sign.
Application of SIRA Guidelines and CTP Rules
The State Insurance Regulatory Authority (SIRA) provides guidance on how CTP insurers must assess liability in motor accident claims, including those involving wildlife strikes. Under SIRA’s Motor Accident Claims framework, insurers must apply a reasonable person standard, not a perfect one. This means that a driver who swerves to avoid an animal and collides with a barrier or another vehicle may still be found not at fault, provided the action was reasonable under the circumstances.
SIRA’s guidelines also clarify that a driver is not automatically at fault for striking an animal. The insurer must investigate whether the driver’s actions were proportionate to the risk. For example, if a driver was travelling at 60 km/h in a 50 km/h zone on a suburban road and swerved to avoid a wallaby, the insurer may accept that the action was reasonable, even if the vehicle left the road and sustained damage.
Practical Steps and Evidence That Matter
To support a claim following a wildlife strike, claimants should preserve and collect the following evidence:
- Photographs of the vehicle damage, road conditions, and any animal remains at the scene
- A police report, if one was filed (even if not for a traffic offence)
- Witness statements, if available
- Medical records showing injuries sustained in the crash
- A log of any treatment received, including time off work
- Details of any vehicle repairs and associated costs
Insurers may also request a review of the driver’s mobile phone data or vehicle black box (if fitted) to assess speed and braking patterns at the time of the incident. These records can help confirm whether the driver reacted appropriately.
Time Limits and Dispute Options
There is a 3-year time limit from the date of the accident to start a claim for compensation under the MAIA. This applies regardless of whether the claim is for treatment and care benefits, weekly income payments, or damages. In Greater Sydney, where roads are heavily trafficked and incidents may occur on private or public land, the date of the accident is critical.
If an insurer denies liability or offers a settlement that does not reflect the claimant’s injuries or losses, the claimant may dispute the decision. Disputes can be raised through SIRA’s dispute resolution process, which includes formal review and, if necessary, an application to the NSW Civil and Administrative Tribunal (NCAT). The claimant must provide evidence to support their position, including medical reports and expert opinion where appropriate.
A Realistic Example
A driver in the Hills District of Greater Sydney was travelling on a rural road near a known wildlife corridor when a large kangaroo jumped in front of the vehicle. The driver swerved sharply to avoid it, lost control, and collided with a tree. The vehicle sustained front-end damage, and the driver suffered whiplash and concussion. The driver had no prior driving convictions and was not distracted. A police report was filed, and photographs showed the animal’s footprint near the impact point. The insurer accepted liability based on the reasonable response to an unexpected hazard, and the claimant received treatment and care benefits and weekly income payments.
When to Seek Advice
Every claim depends on its own facts. The outcome of a wildlife strike claim depends on the driver’s actions, road conditions, and the nature of the injuries. Insurers may not always apply the reasonable person standard consistently, and claimants may face delays or denials. It is advisable to seek independent legal advice if:
- The insurer denies liability without clear reasoning
- The insurer offers a settlement that does not cover medical costs or lost income
- The claimant has a serious injury and wishes to pursue damages
Next Step
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.