Many people assume that if they were partly responsible for causing a motor vehicle accident, they cannot claim compensation.
Fortunately, that is not always the case.
Under the NSW Compulsory Third Party (CTP) scheme, a person who has contributed to an accident may still be entitled to compensation in certain circumstances. However, the amount they ultimately receive may be reduced to reflect their share of responsibility. This legal principle is known as contributory negligence.
Every accident is different. Determining who was at fault, and to what extent, often requires careful investigation of the available evidence.
If liability is disputed, obtaining legal advice early can help protect your rights and ensure all relevant evidence is preserved.
Seek Medical Treatment First
Your health should always be your first priority following a motor vehicle accident.
If anyone has been seriously injured, call 000 immediately for emergency assistance.
Even if your injuries initially appear minor, it is important to seek medical attention as soon as possible. Injuries such as whiplash, concussion, psychological trauma and soft tissue injuries often become more noticeable in the hours or days following an accident.
Medical records created shortly after an accident are also important evidence in a compensation claim. Make sure you tell your treating doctor about all of your symptoms, even if they seem relatively minor at the time.
Report the Accident to Police
If someone has been injured in a motor vehicle accident motor vehicle accident, the accident should be reported to NSW Police within 28 days.
Depending on the circumstances, police may attend the accident scene or you may be directed to report the accident through the Police Assistance Line by calling 131 444.
Once the accident has been reported, obtain the police Event Number, as this is commonly required during the CTP claims process.
Police reports can also become important evidence if liability is later disputed.
Can You Claim Compensation If You Were Partly at Fault?
Yes, in many cases you can.
Being partly responsible for a motor vehicle accident does not automatically prevent you from making a compensation claim.
Many people wrongly believe that unless the other driver was 100% responsible, they have no legal rights.
That is incorrect.
Instead, the law considers:
- how the accident occurred;
- whether another driver owed you a duty of care;
- whether that duty was breached;
- whether your own actions contributed to the accident or your injuries; and
- the extent of your responsibility compared with the other parties involved.
This assessment is known as contributory negligence.
Where contributory negligence applies, compensation may be reduced to reflect your share of responsibility rather than being refused altogether.
What Is Contributory Negligence?
Contributory negligence is a legal principle that recognises an injured person may have contributed to the accident or to the seriousness of their injuries.
It does not necessarily mean you cannot recover compensation.
Instead, a percentage of responsibility may be attributed to each party involved.
For example:
Driver’s Responsibility | Compensation Potentially Recoverable |
0% at fault | 100% |
10% at fault | 90% |
25% at fault | 75% |
40% at fault | 60% |
50% at fault | 50% |
The percentage will depend on the particular facts of each accident and the available evidence
Common Examples of Contributory Negligence
Every accident is different, but contributory negligence may be alleged where an injured person has:
- exceeded the speed limit;
- failed to wear a seatbelt;
- been distracted by a mobile phone while driving;
- failed to keep a proper lookout;
- entered an intersection when it was unsafe to do so;
- made an unsafe turn;
- overtaken another vehicle dangerously;
- crossed the road carelessly as a pedestrian; or
- failed to take reasonable care for their own safety.
Simply because one of these circumstances exists does not automatically mean contributory negligence will be established.
Each claim depends on its own facts and evidence.
How Is Fault Determined?
Determining responsibility for a motor vehicle accident is not always straightforward.
The CTP insurer will usually investigate the circumstances of the accident before making a decision about liability.
Evidence commonly considered includes:
- Police reports
- Witness statements
- Dashcam footage
- CCTV footage
- Photographs of the accident scene
- Vehicle damage
- Expert accident reconstruction evidence
- Medical records
- Statements from the parties involved
If liability cannot be agreed, the dispute may ultimately be determined by the Personal Injury Commission or, in some cases, by the courts.
