People talk themselves out of claims because they think a share of the blame is theirs. In most Australian schemes it is not a bar. No-fault schemes pay benefits regardless of fault, and negligence claims reduce damages for contributory negligence rather than refusing them. This post explains how each pathway treats your own share of responsibility.
The short answer
Yes, you can usually claim. Workers compensation and most CTP schemes pay treatment and income support without asking who was at fault, although some limit benefits for the person mostly to blame. In a negligence claim, contributory negligence reduces your damages by a percentage that reflects your share of responsibility; it does not defeat the claim. Only where you were wholly at fault, or where a scheme excludes you, does fault end the claim.
No-fault schemes: fault mostly does not matter
Workers compensation pays if the injury arose out of or in the course of employment, whether or not you or your employer was careless. Serious and wilful misconduct can exclude a claim in limited cases, but ordinary carelessness does not. The deadlines are what matter: 6 months in New South Wales (Workplace Injury Management and Workers Compensation Act 1998 s 261), a report within 30 days in Victoria (WorkSafe Victoria).
CTP schemes vary. New South Wales pays statutory benefits to everyone injured, including the driver at fault, but weekly payments stop after 52 weeks for a person whose accident was caused wholly or mostly by their own fault (Motor Accident Injuries Act 2017 s 3.11). Victoria’s TAC, Tasmania’s MAIB and the Northern Territory’s MAC Scheme are no-fault for treatment and support. Queensland, South Australia and Western Australia are fault-based for damages, so your share of blame reduces the claim against the other driver, and a claim where you were wholly at fault generally fails.
Lifetime care schemes for catastrophic injuries are no-fault everywhere they exist: icare’s Lifetime Care and Support Scheme in NSW (icare), NIISQ in Queensland (NIISQ), the Lifetime Support Scheme in South Australia (LSA) and Catastrophic Injuries Support in Western Australia (ICWA).
TPD insurance through super never asks about fault. You claim by meeting the policy definition (Moneysmart).
Negligence claims: contributory negligence reduces, it does not defeat
In a damages claim the defendant argues that you failed to take reasonable care for your own safety and that the failure contributed to the injury. Common examples:
| Situation | Typical argument |
|---|---|
| Car accident | Not wearing a seatbelt, speeding, travelling with a driver you knew was drunk |
| Slip or trip | Not watching where you walked, unsuitable footwear, ignoring a warning sign |
| Workplace | Ignoring training or safety equipment |
| Public liability | Entering a closed area, taking an obvious risk |
If the argument succeeds the court sets a percentage, and the damages are reduced by it. A 25% finding on a $200,000 assessment leaves $150,000. Civil liability legislation in each state allows a reduction of up to 100% in extreme cases, but a total reduction is rare. Insurers raise contributory negligence in most claims because it is cheap to allege; your evidence of what you did and why is the answer.
How the same facts play out across schemes
Take a worker injured in a company vehicle crash that was mostly her fault. Her workers compensation claim pays treatment and weekly payments without any reduction. Her NSW CTP statutory benefits continue, but weekly payments end after 52 weeks because she was mostly at fault. A damages claim against another driver is not available because no other driver was at fault. If the employer’s failure to maintain the vehicle contributed, a work injury damages claim needs at least 15% permanent impairment for a physical injury (Workers Compensation Act 1987 s 151H) and would be reduced for her own contribution. Her TPD cover, if she cannot work again, is unaffected by any of it.
How insurers argue contributory negligence, and how to answer it
Insurers plead contributory negligence early because it costs nothing and shifts the negotiation. The allegation is often generic: “the claimant failed to keep a proper lookout” or “failed to take reasonable care for her own safety”. It becomes real only when the insurer has evidence, usually from your own statements, from a police report or from CCTV.
Three habits protect you. First, be accurate and complete when you describe the accident, but do not speculate about what you could have done differently; that is a legal question and speculation is quoted back later. Second, get the objective evidence early: photographs of the hazard, the position of vehicles, lighting and signage, because those facts usually answer the “proper lookout” argument better than any statement. Third, get advice before giving a recorded interview. You are entitled to a support person and to see the questions in advance in many schemes.
The reduction, if any, is decided on the comparative culpability of each party. A pedestrian crossing against a light who is struck by a driver who was speeding and using a phone will usually carry a smaller share than the driver. A worker who removed a machine guard against clear instructions may carry a larger share, but the employer’s failure to enforce the instruction still counts. The percentages are negotiated on the facts, and the same facts have produced very different percentages in different cases, which is why the evidence you gather in the first week is worth more than argument later.
Some situations where fault does end the claim
- Wholly at fault, fault-based scheme. A single-vehicle crash in Queensland, South Australia or Western Australia generally gives no damages claim, because there is no negligent other party, although lifetime care schemes still respond to catastrophic injuries.
- Serious and wilful misconduct at work. Workers compensation can be excluded where the injury was caused by the worker’s serious and wilful misconduct, unless the injury is serious or fatal; each Act sets the test.
- Serious driving offences. The NSW scheme denies statutory benefits to an injured person who commits a serious driving offence in connection with the accident.
- Obvious risks in recreation. Civil liability legislation gives defendants a defence where the harm results from the materialisation of an obvious risk of a dangerous recreational activity.
Even in these situations, TPD cover and any no-fault lifetime care scheme are unaffected, so it is worth checking every pathway before concluding there is nothing to claim.
What to do
- Do not decide the claim yourself. Fault is a legal conclusion, and the person who feels responsible is often not the person the law holds responsible.
- Lodge no-fault claims within their deadlines whatever you think about fault.
- Record your version of events and the reasons for your actions while they are fresh.
- Get advice before giving a recorded statement to an insurer about how the accident happened.
Frequently asked questions
Can I claim CTP if I caused the crash? In no-fault states you can claim treatment and income support, with limits for the person mostly at fault. In fault-based states a damages claim generally needs another driver to be at fault.
Does not wearing a seatbelt end my claim? No. It usually leads to a percentage reduction for contributory negligence, not a refusal.
Can my workers compensation be reduced because I was careless? Ordinary carelessness does not reduce workers compensation. Serious and wilful misconduct can exclude a claim in limited circumstances.
Who decides my percentage? The parties negotiate it and, if they cannot agree, a court or tribunal decides on the evidence.
This article is general information, not legal advice, checked on 26 September 2026. An enquiry with Australian Claim Helpline does not lodge a claim or pause a time limit; the personal injury lawyers guide explains each pathway.
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Start the free claim check Read the guide to personal injury lawyers in AustraliaGeneral information published 26 September 2026. It is not legal advice and may not reflect later changes to the law or a scheme. Check your own position with a qualified adviser.
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