What Changed for Failure to Give Way Accidents in NSW After 2017?
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).
Accidents where a driver fails to give way at an intersection or controlled access point are common in Greater Sydney and across NSW. The 2017 reforms introduced under the Motor Accident Injuries Act 2017 (MAIA) significantly changed how these claims are processed, particularly in relation to fault, entitlement to benefits, and the threshold for claiming damages.
Under the new framework, fault remains a factor in determining liability, but it no longer automatically bars access to statutory benefits. Instead, a claimant may still receive treatment and care benefits, weekly income payments, and, in some cases, damages even if they were partially at fault, provided they meet the eligibility criteria under the MAIA.
The most significant change is the introduction of a threshold injury system. A claimant must now demonstrate that their injuries meet the statutory threshold to claim damages, which includes a minimum level of permanent impairment or a specified level of functional loss. This applies regardless of whether the accident occurred in a car park, on a major arterial road, or at a busy intersection in Greater Sydney.
How the 2017 Reforms Affect Claims for Failure to Give Way Accidents
Prior to 2017, under the Motor Accidents Compensation Act 1999 (MACA), claimants could pursue damages based on fault alone, even for minor injuries. The 2017 reforms replaced MACA with the MAIA, which introduced a more structured approach to compensation.
Under the MAIA, a claimant who was involved in a failure to give way accident may still access statutory benefits such as treatment and care, weekly income payments, and travel expenses, regardless of fault. However, to claim damages, the claimant must meet the threshold test. This means that even if a driver failed to give way and caused injury, the claimant will not be entitled to damages if their injuries do not meet the threshold, such as a permanent impairment of at least 10% of the whole person, or a specified level of functional loss.
The reforms also introduced a 52-week limit on statutory benefits for claimants whose only injuries are threshold injuries. This means that if a claimant’s injuries are limited to a soft-tissue injury (such as whiplash) and no other significant injury is present, their weekly payments and treatment benefits may cease after 52 weeks, unless a medical assessment shows ongoing need.
Practical Steps and Evidence That Matter in Failure to Give Way Claims
To support a claim following a failure to give way accident, it is essential to gather and preserve evidence as soon as possible. The following items are commonly required:
- A police report, if one was filed at the scene
- Photographs of the accident site, including road markings, signs, vehicle positions and damage
- Witness contact details and statements
- Medical records from the time of the accident, including initial assessments and follow-up treatment
- A record of lost income, if applicable
- Correspondence with the insurer, including claim forms and letters
In Greater Sydney, where intersections are complex and traffic volumes high, evidence of the failure to give way is often critical. This may include traffic camera footage, dashcam recordings, or statements from other drivers or pedestrians.
A claimant should seek medical attention immediately after the accident, even if injuries are not immediately apparent. Delayed symptoms are common in soft-tissue injuries, and early documentation strengthens the claim.
Time Limits, Disputes and When to Seek Advice
There is a strict time limit for making a claim under the MAIA. A claim must generally be made within three years of the accident date. However, if the claimant is under 18 at the time of the accident, the time limit extends to three years after their 18th birthday.
If an insurer denies a claim or disputes liability, the claimant may request a review under the SIRA (State Insurance Regulatory Authority) process. Disputes over the threshold injury assessment or the level of impairment may be referred to an independent medical assessor.
A hypothetical example: A pedestrian was struck by a car at a crosswalk in Sydney CBD after the driver failed to give way. The pedestrian sustained a neck injury and required physiotherapy and time off work. The driver admitted fault. The claimant received treatment and care benefits and weekly payments. However, because the injury was classified as a soft-tissue injury with no permanent impairment above 10%, the claimant did not meet the threshold for damages. The statutory benefits were capped at 52 weeks, and the claim was closed after that period.
Next Steps
The legal framework for failure to give way accidents in NSW has evolved significantly since 2017. The changes focus on fairness, consistency and ensuring that only those with serious or lasting injuries receive damages. However, entitlements to treatment, income support and other benefits remain available to most claimants, regardless of fault.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.