At Fault vs Not at Fault: How Fault Changes a NSW CTP Claim

Why fault matters

The NSW CTP scheme gives most injured people early support without arguing about blame first. Fault still matters, though, because it affects two big things: how long your statutory benefits can continue, and whether you can make a lump-sum damages claim.

Check the insurer's liability decision carefully. It should explain what the insurer decided about fault and why. If it looks wrong, you can challenge it.

If you were not at fault

If another driver caused the accident, you can claim statutory benefits and, if your injury is more than a threshold injury, you may also be able to claim damages. Benefits for a non-threshold injury can continue beyond 52 weeks. See CTP damages claims.

If you were wholly or mostly at fault

You can still claim. If you were wholly or mostly at fault, weekly payments and treatment and care are generally limited to the first 52 weeks, and you can't claim common law damages. For accidents before 1 April 2023, the limit was generally shorter.

'Mostly at fault' has a specific meaning: your contributory negligence is found to be greater than 61%. If you were at fault but the finding is 61% or less, you are not 'mostly at fault' for these purposes. Use our at-fault check to see where you may stand.

Contributory negligence

Contributory negligence means something you did contributed to the accident or to your injuries. It is usually expressed as a percentage. Common examples include:

• Not wearing a seatbelt or helmet.
• Speeding, or driving while distracted.
• Travelling with a driver you knew, or should have known, was affected by alcohol or drugs.
• Walking or riding into traffic without taking reasonable care.

How contributory negligence affects your claim

Weekly payments after 52 weeks may be reduced for contributory negligence. If you are eligible for damages, they are generally reduced to reflect your share of responsibility. If your contributory negligence is greater than 61%, you are treated as mostly at fault, with the limits described above.

Passengers, children and accidents where no one was at fault

Passengers are rarely at fault, even when the driver was. A passenger injured in a single-vehicle crash can usually claim against the CTP insurer of the vehicle they were in.

Children who were 16 or under at the time of the accident can receive treatment and care for as long as they need it, regardless of fault.

Where an accident was genuinely no one's fault, for example because of a sudden medical event or an animal on the road, special 'blameless accident' rules may treat the owner or driver of the vehicle as at fault so that an injured person can still claim damages. These rules are technical, so get advice.

How fault is decided, and how to challenge it

The insurer decides fault from the evidence: police reports, statements from drivers and witnesses, photos, dashcam or CCTV footage and, sometimes, expert reconstruction. A traffic fine is relevant but does not decide fault on its own.

If you disagree, you can generally ask the insurer for an internal review and then take the dispute to the Personal Injury Commission. Gather the evidence early; footage and witness memories don't last.

When to talk to a lawyer

You don't need a lawyer to lodge a CTP claim, and plenty of people with short, straightforward claims never use one. SIRA also funds a free CTP Legal Advisory Service for statutory benefits questions. It is worth talking to an independent CTP claim lawyer if:

• The insurer says you were wholly or mostly at fault and you disagree.
• A contributory negligence percentage has been applied that looks too high.
• The accident involved an animal, a medical episode, a road defect or a mechanical failure.
• You were a passenger and the driver was a friend or family member.