*The contents in this blog relates to legislation in New South Wales.
Most road users injured in motor vehicle accidents in New South Wales are eligible for compensation, even if they are at fault.
Under the Motor Accident Injuries Act 2017, injured persons are entitled to weekly payments of income support and medical expenses (statutory benefits) for six months post accident, regardless of their level of fault for the accident. This is unless the injured person has committed a serious driving offence.
At six months post accident, injured persons who are more than 61% at fault for the accident are disentitled to further statutory benefits.
After six months, the injured person’s weekly payments are also reduced according to their level of fault, or what is called contributory negligence. For example, if the insurer asserts the injured person is 50% to blame for the accident, their weekly payments will be reduced by 50%.
In unusual circumstances, a person who is injured in a single vehicle accident may be able to claim statutory benefits beyond six months, on the basis that their accident is “no fault.”
The insurer’s decision on fault is not final and can be challenged via the Personal Injury Commission.
For the purposes of the damages claim, which is a lump sum claim for compensation for economic loss and pain and suffering, the value of the claim will again be reduced in accordance with the injured person’s level of fault. However, unlike a claim for statutory benefits, it is still possible to claim damages where fault exceeds 61%.
It is important to seek legal advice if the insurer alleges you are wholly or partly at fault for an accident. Your claim may require expert evidence from an accident reconstruction expert or similar. Do not assume the insurer’s decision is the correct one. Even if there is a finding from police that you were at fault for the accident, you may nevertheless have a substantial claim for compensation. Strict time limits apply, so do not delay in seeking legal advice.