Understanding Pain and Suffering Damages in NSW CTP Claims
Pain and suffering damages in New South Wales are part of a claim for non-economic loss, which arises when a person suffers a serious injury as a result of a motor accident. These damages are not intended to cover treatment costs directly. Instead, they are awarded to compensate for the ongoing impact of injury on a person’s life, including physical and emotional distress, loss of enjoyment of life, and mental suffering. Treatment costs are funded separately under the CTP scheme through a different entitlement pathway.
Funding Treatment Costs Under the CTP Scheme
Treatment and care benefits are available under the Motor Accident Injuries Act 2017 (MAIA) to cover reasonable and necessary medical, allied health, and rehabilitation services. These benefits are not limited to claims involving pain and suffering damages. They apply to all eligible claimants, regardless of whether they pursue a damages claim. This includes people who have sustained a threshold injury, such as a soft tissue injury, or a more serious injury that meets the threshold for damages.
Under the MAIA, treatment and care benefits are payable to cover services such as physiotherapy, psychological counselling, medical consultations, and specialist assessments. These benefits are not capped at 52 weeks for people who have not met the threshold for damages, but they may be subject to review if the injury is determined to be a threshold injury and the claimant has not progressed in recovery.
How Funding Differs from Damages Claims
It is important to distinguish between funding for treatment costs and the award of pain and suffering damages. Pain and suffering damages are only available if the claimant has suffered a serious injury, as defined by the Motor Accident Injuries Regulation 2017. This includes injuries that result in a whole person impairment (WPI) of 16% or more, or a permanent impairment of a major body part.
Treatment and care benefits are not dependent on the severity of injury or the existence of a damages claim. They are available to all eligible claimants who have been injured in a motor accident, including those who have not met the threshold for damages. This means that even if a claimant does not pursue a pain and suffering damages claim, they may still receive funding for treatment and care through the CTP scheme.
Practical Steps and Evidence That Matter
To access treatment and care benefits, a claimant must notify their insurer of the injury and provide medical evidence of the need for treatment. The insurer will assess the claim under the Motor Accident Injuries Guidelines, which set out the criteria for reasonable and necessary treatment.
Key evidence that supports a claim for treatment and care benefits includes:
- Medical reports from treating practitioners
- Treatment plans and progress notes
- Invoices and receipts for services received
- A record of the accident, including time, location, and any witness details
- Evidence of ongoing symptoms, such as pain, restricted mobility, or psychological distress
In Greater Sydney, claimants may access a wide range of medical and allied health providers. However, the insurer may require pre-approval for certain treatments, particularly if they are not part of a standard treatment plan.
Time Limits and Procedural Requirements
There are time limits for making a claim under the CTP scheme. A claim for treatment and care benefits must generally be made within three years of the accident. For claims involving damages, including pain and suffering, the time limit is also three years from the date of the accident.
If a claimant delays in notifying the insurer or fails to provide required evidence, the insurer may refuse to pay for treatment. In some cases, the insurer may only pay for treatment that was received after the claim was formally made.
A claimant who believes their treatment and care benefits have been denied or limited may request a review from the insurer. If the issue remains unresolved, they may apply to the NSW Civil and Administrative Tribunal (NCAT) for a decision.
When to Seek Independent Advice
While treatment and care benefits are available to all eligible claimants, the process of obtaining them can be complex. The insurer may dispute the necessity or reasonableness of a treatment, or limit payments based on the claimant’s injury status.
A claimant who has been injured in Greater Sydney and is receiving treatment for pain and suffering may benefit from independent legal advice to ensure that all eligible treatment costs are funded. This is particularly important if the claimant has not met the threshold for damages but continues to experience ongoing symptoms that require medical management.
For example, a pedestrian in Sydney’s inner west was struck by a car while crossing a street. The person sustained a whiplash injury and was referred to a physiotherapist and a psychologist. Although the injury did not meet the threshold for damages, the claimant received treatment and care benefits for all medically recommended services, including psychological support, under the CTP scheme.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.