Child Injury Claims: Common Mistakes to Avoid in NSW CTP Claims
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).
If your child was injured in a motor accident in New South Wales, understanding the Compulsory Third Party (CTP) compensation process is critical. Families often make errors that could affect their ability to claim benefits or damages. This article explains the most common mistakes to avoid, including missed deadlines, poor evidence collection, and miscommunication with insurers.
Key Legal Framework for Child Injury Claims
NSW CTP claims are governed by the Motor Accident Injuries Act 2017 and administered by the State Insurance Regulatory Authority (SIRA). When a child is injured, the claim must be made under the CTP scheme, which covers injuries resulting from motor vehicle accidents. The scheme provides statutory benefits such as weekly income payments and treatment and care benefits, but these are limited to injuries meeting the 'threshold injury' definition under the Motor Accident Guidelines.
A critical distinction is that CTP benefits are not the same as a common law damages claim. Statutory benefits are automatic for eligible injuries, while damages require proving fault and meeting specific impairment thresholds. For children, the focus is often on medical evidence confirming injuries, not fault.
Practical Steps and Evidence to Avoid Common Errors
To secure benefits, families must take specific actions. First, seek immediate medical attention and ensure all injuries are documented. Medical records must clearly link the injury to the accident. Second, preserve evidence such as accident reports, witness statements, and photographs of the scene. Third, notify the at-fault driver’s insurer within 30 days of the accident, as delays may affect benefit eligibility.
One common mistake is failing to collect evidence of the child’s pre-accident income or care costs. For example, if a child missed school due to injury, parents must provide records showing the impact on education or family income. Another error is not seeking independent medical opinions when the injury’s severity is disputed.
Time Limits and Dispute Resolution
NSW CTP claims have strict time limits. Statutory benefits for threshold injuries are generally limited to 52 weeks after the accident, unless the injury meets the 'whole person impairment' threshold. If a child’s injury does not qualify as a threshold injury, benefits stop after 52 weeks, even if the child is still recovering.
Claims for damages must be started within three years of the accident. Families often miss this deadline when focusing on medical treatment rather than legal steps. If benefits are exhausted and the child’s injury meets the impairment threshold, a separate damages claim may be possible, but it requires expert evidence and legal guidance.
When to Seek Legal Advice
Parents should consult a solicitor if benefits are exhausted but the child’s injury meets the impairment threshold, or if the insurer disputes the injury’s severity. Legal advice is also essential if the child requires long-term care, as the CTP scheme does not cover future care costs beyond the initial 52-week period.
Example: Missing the 52-Week Deadline
Consider a scenario where a 10-year-old child sustains a soft-tissue injury in a car accident. The family receives weekly benefits for 52 weeks but fails to apply for a damages claim within the three-year time limit. If the injury later meets the impairment threshold, the family may lose the opportunity to claim damages because the deadline has passed. This highlights the importance of acting promptly and seeking legal advice when benefits are exhausted.
Next Steps
CTP claims for child injuries depend on accurate evidence, strict deadlines, and understanding the distinction between statutory benefits and damages. Families should act quickly to preserve their rights and seek legal advice if benefits are exhausted or if the injury’s severity is disputed. For tailored guidance, complete the quick, no obligation enquiry form to request contact about your circumstances.