Understanding Pain and Suffering 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).
Pain and suffering is a form of non-economic loss that may be claimed under the NSW Compulsory Third Party (CTP) insurance scheme, but only in limited circumstances. It is not automatically payable. To claim it, a person must have suffered a serious injury as defined by the Motor Accident Injuries Act 2017. This means the injury must either be a threshold injury that results in a whole person impairment of at least 15%, or a more severe injury that meets the criteria for a serious injury under the Motor Accident Guidelines. The claim must also be made within the time limits set by law, and the claimant must provide sufficient evidence to support the claim.
What Evidence Is Required to Prove Pain and Suffering?
To establish a claim for pain and suffering, a claimant must provide a range of evidence that demonstrates the impact of the injury on daily life, mental health, and personal wellbeing. The following documentation is typically required:
- A detailed medical report from a treating medical practitioner, including a description of the nature, severity, and duration of pain.
- Evidence of ongoing physical or psychological symptoms that affect daily functioning, such as sleep disruption, inability to perform household tasks, or reduced social participation.
- A psychological assessment, if mental health symptoms such as anxiety, depression, or post-traumatic stress are reported. This must be conducted by a qualified psychologist or psychiatrist.
- A personal statement from the claimant describing how the injury has affected their life, including changes in routine, relationships, work, and enjoyment of activities.
- Evidence of treatment received, including medication, physiotherapy, or counselling, to show the injury has not resolved and continues to impact wellbeing.
SIRA’s guidance confirms that pain and suffering claims are assessed on a case-by-case basis, and the burden of proof lies with the claimant to demonstrate the extent and duration of suffering.
Common Pitfalls in Documenting Pain and Suffering
Many claims are delayed or declined due to incomplete or inconsistent evidence. Common pitfalls include:
- Failing to record symptoms in a diary or journal, which can undermine claims about ongoing pain.
- Not seeking timely medical or psychological assessment after the accident, which may weaken the link between the injury and the reported suffering.
- Submitting only general statements about pain without supporting medical or treatment records.
- Delaying the claim beyond the applicable time limits, which may result in the claim being barred.
It is essential to begin documenting symptoms as soon as possible after the accident. A simple daily log noting pain levels, mood, and functional limitations can be powerful evidence.
When Is a Pain and Suffering Claim Likely to Be Accepted?
A claim for pain and suffering is most likely to succeed if the injury results in a whole person impairment of 15% or more, and the claimant can demonstrate that the pain and suffering have persisted beyond the recovery period and have significantly affected their quality of life. The Motor Accident Guidelines set out the criteria for assessing impairment and the impact of injury on daily life. Claims are not accepted for minor or short-term pain, even if the injury was traumatic.
For example, a 45-year-old driver who sustained a spinal injury in a motor vehicle accident may experience chronic back pain, limited mobility, and ongoing anxiety. If a medical assessment confirms a 20% whole person impairment and psychological evaluation shows moderate depression, the claimant may have a valid basis for a pain and suffering claim, provided all required documentation is submitted.
Time Limits and Procedural Requirements
There are strict time limits for making a CTP claim in NSW. A claim for damages, including pain and suffering, 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.
Failure to meet these deadlines may result in the claim being barred. It is also important to note that claims for treatment and care benefits, and weekly income payments, are subject to separate timeframes and eligibility rules. These must be addressed early to avoid gaps in support.
Seeking Advice and Reviewing Your Claim
If a claim for pain and suffering has been rejected, or if the claimant believes the offered compensation is inadequate, they may request a review from the insurer or apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. The review process requires a full submission of evidence, including updated medical reports and a detailed explanation of how the injury has affected life.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.