Understanding legacy claims under the Motor Accident Claims Act 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).
Motor accident claims in NSW that arose before 1 December 2017 are governed by the Motor Accident Claims Act 1999 (MACA), commonly referred to as the 'legacy' scheme. These claims are distinct from those under the current Motor Accident Injuries Act 2017 (MAIA), which applies to accidents occurring on or after that date. The distinction is critical because the rules for compensation, eligibility, and assessment differ significantly between the two frameworks.
In Greater Sydney, as across NSW, the State Insurance Regulatory Authority (SIRA) administers both legacy and new claims. However, for claims under MACA, SIRA applies the provisions of that Act and its associated regulations, including the Motor Accident Claims (General) Regulation 2000. These rules determine what benefits are available, how they are calculated, and the timeframes for making a claim.
Key differences between legacy and new claims
Under MACA, claimants may be eligible for a range of benefits including weekly income payments, treatment and care benefits, and damages for pain and suffering, loss of income, and future care needs. Unlike the MAIA scheme, which imposes a threshold for claiming damages (such as a permanent impairment of 10% or more), MACA does not have a threshold injury requirement. This means that claimants under MACA may be able to claim damages even for injuries that would not qualify under the current scheme.
Additionally, under MACA, a claimant’s entitlement to weekly income payments is not limited to a maximum of 52 weeks if the injury is not a threshold injury. This is a significant difference from MAIA, where only threshold injuries are subject to a 52-week cap on weekly payments. Under MACA, payments may continue for as long as the claimant remains unable to work due to the accident, subject to review and medical evidence.
How SIRA interprets and applies MACA rules
SIRA provides guidance on the interpretation and application of MACA through its official information resources. SIRA’s position is that legacy claims must be assessed under the law that was in force at the time of the accident. This means that the legal framework applicable to a claim depends on the date of the motor accident, not the date the claim is made.
SIRA’s approach to legacy claims includes a focus on medical evidence, particularly in assessing the extent of injury and its impact on the claimant’s ability to work. SIRA expects claimants to provide detailed medical reports from treating practitioners, including assessments of functional capacity and prognosis. Where a claimant has not returned to work, SIRA may require an independent medical assessment to determine ongoing capacity for gainful employment.
SIRA also applies the principle of proportionality in assessing damages. This means that damages for pain and suffering, loss of income, and future care needs are calculated based on the actual impact of the injury on the claimant’s life, not on a fixed schedule. The assessment considers factors such as age, occupation, pre-accident health, and the nature and severity of the injury.
Practical steps and evidence that matter
For claimants in Greater Sydney with a legacy claim under MACA, the following steps are essential:
- Seek medical treatment promptly and maintain a complete record of all medical appointments, diagnoses, and treatment plans.
- Preserve any documentation related to the accident, including police reports, witness statements, and photographs of property damage or injury.
- Notify the insurer of the CTP insurer within 6 months of the accident, as required under MACA. Failure to do so may result in a bar to claiming benefits.
- Provide a detailed statement of income loss, including pay slips, tax returns, and employer letters confirming reduced hours or inability to return to work.
- Submit a formal claim to the CTP insurer, using the form provided by SIRA or the insurer.
SIRA advises that claimants should not delay in making a claim, as time limits apply. The claim must be made within 3 years of the accident date, or within 3 years of the date the claimant first knew or ought to have known that the injury was attributable to the accident.
Time limits and dispute resolution
Under MACA, the time limit for making a claim is 3 years from the date of the accident. This is a strict deadline, and SIRA has confirmed that claims made after this period may not be accepted, even if the injury was not apparent at the time.
If a claim is denied or a dispute arises over the amount of compensation, SIRA provides a formal dispute resolution process. This includes the opportunity to request a review by SIRA, or to apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. SIRA’s guidelines state that parties must first attempt to resolve disputes through negotiation or mediation before proceeding to formal review.
A hypothetical example: A pedestrian in Sydney’s inner west was struck by a car in February 2016. The injury was not immediately apparent, but a diagnosis of a spinal disc injury was confirmed in November 2016. The claim was made in February 2019, within 3 years of the accident. SIRA accepted the claim under MACA, and the claimant received weekly payments and damages for pain and suffering, as the injury was not a threshold injury under MAIA but was compensable under MACA.
When to seek independent advice
Legacy claims under MACA can be complex, particularly when the injury was not immediately apparent or when the claimant has a pre-existing condition. SIRA’s guidance confirms that the presence of a pre-existing injury does not automatically bar a claim, but it may affect the assessment of causation and damages.
Given the differences between MACA and MAIA, and the potential for disputes over medical causation, income loss, or damages, it is advisable to seek independent legal advice before finalising a claim. This is especially important for claimants in Greater Sydney, where the cost of living and medical treatment can significantly impact the value of a claim.
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