At Fault vs Not at Fault — What Changes Under MAIA

NSW's post-2017 scheme was designed so many injured people still receive statutory benefits even when they contributed to the crash. How much you were 'at fault' (the insurer may express this as a percentage) can change the duration and type of those benefits.

Do not guess your percentage from a forum post. The insurer's liability decision should explain their reasoning; if it looks wrong, that is a legal dispute, not something to argue in a GP consult.

When you were not mostly at fault

If you are not mostly at fault and meet the other criteria, you may access a longer statutory benefits pathway than someone who was mostly at fault. If your injury is above the minor injury threshold, you may also have access to common law damages — subject to legal tests and evidence.

When you were mostly at fault

You may still have access to statutory benefits (including treatment) for defined periods under MAIA, but the scheme limits how long some entitlements continue compared with not-at-fault claims. The exact periods are in the Act and SIRA guidance.

Common law damages are generally not available if you were mostly at fault. Again, a lawyer confirms how the rules apply to your file.

Minor injury classification

Even if you were not at fault, a 'minor injury' classification affects how long some benefits last and whether you can pursue common law damages. That classification is a legal/scheme decision informed by medical evidence — not something you 'choose' at the front desk.

Contributory negligence explained

Contributory negligence means you did something that contributed to the accident or your injuries — for example, not wearing a seatbelt, speeding, or being distracted. Under MAIA, the critical threshold is whether you were mostly at fault (generally interpreted as 61% or more responsible).

Contributory negligence does not necessarily block all benefits. It may reduce common law damages proportionally and can affect the duration of statutory entitlements. The insurer assesses fault based on evidence — police reports, witness statements, dashcam footage, and sometimes expert reconstruction.

Single vehicle accidents

If only one vehicle was involved — for example, the driver lost control and hit a tree — the driver is usually considered at fault. However, passengers in that vehicle are generally not at fault and can claim statutory benefits and potentially common law damages.

There are exceptions: road defects, mechanical failure, or an animal causing the crash may change the fault picture. These situations can be complex and often benefit from legal advice early.