While a car occupant enjoys the protection of a steel frame, seatbelts and airbags, a pedestrian, cyclist or motorcyclist has virtually nothing between them and the road. This single fact dictates both the nature of their injuries and the questions posed by their claims.
The NSW Compulsory Third Party scheme includes pedestrians, cyclists and motorcyclists, together with drivers and passengers. The claim still needs to arise out of a motor vehicle accident under the scheme and must satisfy the general requirements. However, as CTP lawyers in Sydney know, there are certain questions which regularly arise for these road users.
Where Fault Makes a Difference and Where It Doesn’t?
Initial statutory benefits for medical and income loss do not require proof of the other driver’s fault. People who were mostly responsible for the accident are still able to access these benefits up to 52 weeks. However, fault plays a much greater role in determining benefits beyond that and in claims for damages.
This is usually the case when dealing with claims brought by cyclists and motorcyclists. A car turning into the cyclist’s path will argue that they appeared from nowhere. An incident of ‘dooring’ is another example of a dispute over who saw who.
Insurers may argue the cyclist’s contributory negligence. Speed, position on the road, and whether they wore a helmet and protective gear may be considered depending on the circumstances. Contributory negligence will reduce their damages although the driver is mostly at fault.
The Evidence That Answers the Question
Evidence usually determines these cases. Footage from dashcams, helmet cameras and CCTV cameras of neighbouring businesses can provide an invaluable answer. The latter may usually overwrite footage within several days and hence requires early requests for its retrieval.
Information about witnesses is no less crucial. Their name and contact details obtained at the scene become increasingly difficult to locate.
Hit-and-Run Crashes, Unregistered Vehicles
Some drivers do a runner before anyone can get a look at a plate number, while others are behind the wheel of a vehicle that was never registered or insured. People who get hurt in these crashes can still try to claim through the Nominal Defendant, a scheme run by SIRA.
But there is an extra requirement to meet before you can get a claim accepted: you gotta show you made a genuine effort to try and figure out the vehicle’s identity, which is called doing some due diligence and searching. Reporting the crash to the police as soon as you can is a big part of that and can actually make your claim a lot stronger.
Delivery Riders and the Two Systems
Sydney’s streets are chock-a-block with food and parcel delivery riders, and when one of them gets hurt in a crash, you’ve got two schemes that might come into play: CTP and workers’ compensation.
The thing is, each scheme has its own test for who’s eligible, and whether a rider is counted as a worker depends not on what they’re called but on what’s actually going on in their working arrangement and what the law says. And if there’s a crash with a vehicle that’s insured, a rider might still be able to make a CTP claim regardless of whether they are a worker or not. One thing that can really help riders prove their case is keeping a record of their app activity at the time of the crash; those records can be super important.
Injury Without Being Physically Hit
Not everyone gets hurt in a crash by being physically struck; sometimes people can develop a serious mental health problem after what they’ve seen. A parent who sees their kid get knocked down, for example, might suffer some pretty serious long-term effects. Or a bystander might be left traumatised after witnessing a bad crash.
The thing is, NSW law does recognise some of these claims, but the rules for what gets accepted are pretty strict. Generally, a person needs to have a recognised and diagnosed psychiatric illness, not just some ordinary old distress or grief. And it’s not just about what they saw; the relationship they had with the person who got hurt and how they witnessed the whole thing can also play a big part in whether they get compensation. Ultimately, each case turns out to be unique and depends on the medical evidence and the specific facts of the case.
Protecting Your Claim on the Spot
The minutes after a crash can be chaotic, especially if you’ve been thrown off your bike or knocked down on a crossing. First and foremost, make sure you’re getting the medical attention you need. Once you’ve got that sorted, here are a few things that can really help protect your claim:
Keep any damaged gear, too; a cracked helmet or bent wheel can be super useful evidence years down the line.
For anyone who rides or walks around Sydney, one thing is pretty clear. After any crash, try to get the names and contact details of witnesses down as soon as possible. It’s often the first few hours that decide what can be proven years later.
