What Fault Means in Motor Vehicle Accidents

“Wholly or mostly at fault” in NSW CTP claims – what does it really mean?

In NSW, most injured people in motor vehicle accidents are entitled to statutory benefits – payments that cover income loss and medical treatment – regardless of who caused the crash.

However, there’s an important exception insurers often rely on:

If the accident was “wholly or mostly caused” by you, your statutory benefits may cease after 52 weeks.

That phrase “wholly or mostly at fault” is more than just everyday language – it has a specific meaning under the Motor Accident Injuries Act 2017 (NSW) (the Act), and it’s not always applied correctly by insurers.

How statutory benefits work

Under Part 3 of the Act:

• Most injured people can receive income support, treatment and care for at least the first 52 weeks after an accident.
• After that, the insurer looks at:
  • whether your injuries are above the threshold injury level; and
  • whether the motor accident was wholly or mostly caused by you.

If the insurer decides you were wholly or mostly at fault, it may issue a notice saying your statutory benefits will cease after the first year.

That decision can be challenged in the Personal Injury Commission.

What does “wholly or mostly at fault” mean?

The legislation draws a distinction between:

• Wholly at fault – essentially 100% responsible for the accident; and
• Mostly at fault –having more than 61% contributory negligence but less than 100%.

So when an insurer says you were “wholly or mostly at fault”, they’re asserting that:

• your share of responsibility for the accident is 62% or higher, and
• this is enough to cut off your ongoing benefits.

If your contributory negligence is:

• 61% or less, you will not be considered “mostly at fault”, and your statutory benefits will not end solely on that basis, though they may be reduced to reflect your share of responsibility.

How contributory negligence is assessed

The Act requires contributory negligence to be assessed in line with the Civil Liability Act 2002 (NSW) and general common law principles. In practical terms, this means asking:

• What would a reasonable person in your position have done?
• Did you fail to take reasonable care for your own safety?
• If so, to what extent did that contribute to the accident itself (not just your injuries)?

In a multi-vehicle accident, this often involves weighing up:

• the conduct of the insured driver, and
• the conduct of the injured person,

and attributing percentages of responsibility between them.

In single-vehicle accidents (for example, where you’re the only driver), the law still allows for contributory negligence to be assessed by looking at whether you failed to take reasonable care for your own safety, even without another driver to “compare” you to.

Common scenarios where “mostly at fault” is asserted

Insurers frequently argue an injured person was wholly or mostly at fault in situations such as:

• Overtaking manoeuvres – especially where a collision occurs as another vehicle turns or changes lanes.
• Rear-end collisions – alleging the injured driver followed too closely or wasn’t paying attention.
• Lane changing or merging – where the injured driver moves into another lane without sufficient observation.
• Single-vehicle accidents – where the driver loses control, leaves the road or collides with a fixed object.
• Pedestrian accidents – for example, crossing against a signal or stepping suddenly into traffic.

Whether someone is actually wholly or mostly at fault depends on the facts; it is not enough for the insurer to say “you were overtaking” or “you hit them from behind” to establish this.

What if my insurer says I’m “wholly or mostly at fault”?

If you receive a letter saying your statutory benefits will end after 52 weeks because you were wholly or mostly at fault, you should:

1. Read the reasons carefully
   • The insurer should provide a statement explaining why they say you were wholly/mostly at fault.
2. Get legal advice as soon as possible
   • There are time limits for disputing decisions in the Personal Injury Commission.
   • A specialist motor accident lawyer can:
     • review the insurer’s reasoning,
     • assess whether the fault assessment is fair, and
     • help you challenge the decision if appropriate.
3. Gather evidence
   • Names and contact details of any witnesses
   • Photographs or video (CCTV, dashcam, helmet cam)
   • Police reports and any traffic court outcomes
   • Your own written account of what happened while it’s still fresh.
4. Don’t assume you have no rights
   • Even if you think you made mistakes, your contribution may still be well under 61%.
   • You can still receive benefits with a reduction, rather than losing them entirely.

Key takeaways

• “Wholly or mostly at fault” is not just a label – it has real consequences for your income support and treatment rights.
• Being “mostly at fault” means more than 61% responsible; anything less than that is not enough to cut off statutory benefits on fault grounds alone.
• Insurers can and do get it wrong. Their decision can be reviewed and, where appropriate, overturned by the Personal Injury Commission.
• Independent evidence – especially from other motorists or pedestrians – can be crucial in showing that your share of responsibility is lower than the insurer claims.

If you’ve been told that you’re wholly or mostly at fault, it’s important not to simply accept that assessment. Getting timely legal advice can be the difference between losing your benefits after 52 weeks and keeping the support you need to recover.

DISCLAIMER

This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.