What Changed for Burn Injury Claims in NSW After the 2017 Reforms?
A threshold injury under the Motor Accident Injuries Act 2017 (NSW) includes a soft tissue injury and a psychological or psychiatric injury that is not a recognised psychiatric illness (adjustment disorder and acute stress disorder are the usual examples; s 1.6 and Motor Accident Guidelines Part 5).
The 2017 reforms to New South Wales' Compulsory Third Party (CTP) insurance scheme, implemented under the Motor Accident Injuries Act 2017 (MAIA), significantly altered how burn injuries sustained in vehicle fires are assessed and compensated. Prior to 1 December 2017, claimants could pursue damages for pain and suffering, loss of enjoyment of life, and future care needs more freely, even for moderate or severe burns. The reforms introduced a threshold-based system that limits access to damages unless a claimant meets a specific injury threshold. For burn injuries, this means that unless the injury results in a whole person impairment of at least 10% or meets the criteria for a threshold injury under the Motor Accident Guidelines, compensation for non-economic loss is generally not available. This change applies to all motor accidents occurring on or after 1 December 2017, including those involving vehicle fires.
How the 2017 Reforms Affect Burn Injury Claims in Vehicle Fires
Under the current CTP framework, burn injuries sustained in vehicle fires are assessed under the same rules as other motor accident injuries. The severity of the burn, its impact on daily life, and the presence of long-term or permanent impairment are key factors. The Motor Accident Guidelines define a threshold injury as one that causes a permanent impairment of at least 10% to the whole person, or a condition that significantly affects the ability to perform everyday activities. For burns, this includes scarring, nerve damage, reduced mobility, and psychological impact. If a burn injury does not meet this threshold, the claimant may still receive treatment and care benefits, and weekly income payments if they are unable to work, but they cannot claim damages for pain and suffering or future care needs.
The reforms also introduced a 52-week limit on treatment and care benefits and weekly income payments for claimants whose only injuries are threshold injuries. This means that if a burn injury is the only injury sustained and it qualifies as a threshold injury, benefits may cease after 52 weeks unless a review is initiated or a claim for damages is successful. This is a material change from the pre-2017 system, where benefits were not time-limited in the same way for claimants with ongoing injuries.
Key Differences Between Pre- and Post-2017 CTP Burn Injury Claims
Before 2017, claimants with serious burn injuries were more likely to receive damages for non-economic loss, even if the injury did not result in a formal impairment rating. The post-2017 system places greater emphasis on measurable impairment and functional impact. For example, a deep second-degree burn with scarring and chronic pain may now be assessed under the threshold injury criteria, and if it does not result in a 10% or higher whole person impairment, damages may not be awarded. In contrast, a claimant with a third-degree burn requiring skin grafts, long-term physiotherapy, and psychological treatment may still qualify for damages if the impairment rating meets or exceeds 10%.
Another key change is the role of medical evidence. Post-2017 claims require a formal assessment of whole person impairment by an independent medical practitioner, using the Australian Medical Association’s impairment rating guidelines. This assessment is critical for determining eligibility for damages. The burden of proof lies with the claimant to demonstrate that the burn injury meets the threshold criteria, which often involves detailed medical records, imaging, and psychological evaluations.
Practical Steps and Evidence That Matter in Burn Injury Claims
If you sustained a burn injury in a vehicle fire in NSW, the following evidence is essential to support a claim:
- Medical records detailing the extent of the burn, treatment received, and any complications such as infection or scarring.
- Photographs taken at the time of injury and during recovery, showing the progression of healing and any permanent scarring.
- A formal whole person impairment assessment conducted by a qualified medical practitioner, as required under the Motor Accident Guidelines.
- Records of time off work, including a certificate from your employer or medical practitioner.
- Evidence of psychological impact, such as a report from a psychologist or counsellor.
- Accident report, including details of the fire, vehicle damage, and emergency services response.
Preserving this evidence from the earliest opportunity is critical. Delays in reporting or seeking medical treatment may affect the assessment of your claim. You should also notify your insurer as soon as possible after the incident.
Time Limits and Dispute Options
There is a three-year time limit from the date of the motor accident to commence a claim for damages under the MAIA. This applies to burn injury claims from vehicle fires as well. If you believe your claim has been unfairly denied or your impairment rating is too low, you may request a review from the insurer or apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. The review process may involve a second medical assessment or a hearing.
Hypothetical Example
A 34-year-old driver sustained second- and third-degree burns to his hands and face in a vehicle fire caused by a collision. He was treated in hospital for six weeks, required skin grafts, and has since undergone multiple follow-up surgeries and physiotherapy. His medical team has assessed his whole person impairment at 14%. Because this exceeds the 10% threshold, he is eligible to claim damages for pain and suffering, loss of enjoyment of life, and future care needs. His claim will be assessed under the current CTP rules, and he may also receive treatment and care benefits and weekly income payments during recovery.
Next Steps
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