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).
Distracted driving claims in New South Wales require careful handling to avoid errors that could jeopardise compensation. This article explains common mistakes to avoid when making a CTP claim following a distracted driving accident, including how to preserve evidence and understand SIRA's role. The information is based on NSW law and applies to claims arising from incidents in Western Sydney.
Key Legal Framework for Distracted Driving Claims
Under the Motor Accident Injuries Act 2017, CTP claims cover injuries caused by motor vehicle accidents, including those involving distracted drivers. SIRA (State Insurance Regulatory Authority) administers claims under this scheme, which provides benefits for treatment, income loss, and other consequences. However, claims must meet specific criteria, such as proving a threshold injury or meeting the 52-week statutory benefit period.
A critical distinction is that SIRA does not assess fault in determining eligibility. Instead, it focuses on the nature of injuries and the claimant's circumstances. For example, if an accident involves a driver using a mobile phone, SIRA will evaluate whether the injury meets the threshold injury definition under the Motor Accident Guidelines. This means claimants must ensure their injuries are documented to satisfy these criteria.
Common Mistakes to Avoid
- Failing to Report the Accident Promptly - SIRA requires claims to be submitted within 52 weeks of the accident. Delays can result in claim withdrawal, especially if injuries are only threshold injuries. For instance, a claimant who delays reporting a soft-tissue injury (like a whiplash) may lose access to weekly income benefits after 52 weeks.
- Not Preserving Evidence - Claimants must retain medical records, accident reports, and witness statements. A common mistake is not documenting the distraction (e.g., phone use) or failing to record the accident scene. For example, a pedestrian who does not photograph the vehicle's dashboard camera footage may struggle to prove the distraction was a contributing factor.
- Ignoring SIRA's Threshold Injury Rules - SIRA's guidelines define threshold injuries as those requiring treatment, such as soft-tissue injuries or minor fractures. If a claimant's injuries fall below this threshold, they may not qualify for certain benefits. A claimant with a minor bruise, for example, may not meet the criteria for treatment benefits.
- Overlooking the 52-Week Statutory Limit - Benefits for injuries that only meet the threshold are generally limited to 52 weeks. If a claimant's injuries worsen beyond this period, they may need to pursue a common law damages claim instead. This distinction is crucial for claimants with long-term recovery needs.
Practical Steps to Take After a Distracted Driving Accident
- Seek Immediate Medical Attention - Even minor injuries should be documented by a medical practitioner. A lack of medical records can lead to claim disputes.
- Preserve Evidence - Take photos of the accident scene, collect witness contact details, and retain receipts for medical expenses. For example, a cyclist who does not record the vehicle's position at the scene may struggle to prove the distraction caused the collision.
- Notify SIRA or Your Insurer - Claims must be submitted within 52 weeks. Delaying this step can result in the claim being rejected, especially if the injury is only a threshold injury.
When to Seek Legal Advice
If a claimant is unsure whether their injuries meet the threshold, or if they face disputes from SIRA or the at-fault driver's insurer, they should consult a solicitor. Legal advice can help navigate complex issues like contributory fault or overlapping claims with workers' compensation.
Example Scenario
Consider a Western Sydney driver who was injured in a collision caused by a distracted motorist. The driver failed to report the accident within 52 weeks and later sought compensation. SIRA rejected the claim, citing the 52-week statutory limit for threshold injuries. This highlights the importance of timely reporting and understanding the distinction between threshold injuries and more severe claims.
Next Steps
CTP claims depend on the specific facts of each case. To ensure your claim is processed correctly, complete the quick, no obligation enquiry form to discuss your circumstances with a legal professional.