Where a person's only injuries resulting from the accident are threshold injuries, weekly benefits and treatment and care generally cease after 52 weeks (ss 3.11 and 3.28).
In New South Wales, pain and suffering damages in motor accident claims are assessed using a structured framework set out in the Motor Accident Injuries Act 2017 and guided by the NSW Government’s State Insurance Regulatory Authority (SIRA). Insurers evaluate these claims based on medical evidence, the nature of the injury, and the impact on the injured person’s life. This article explains how insurers assess pain and suffering damages, with a focus on challenges faced in rural and remote NSW.
How NSW CTP insurers assess pain and suffering damages
Under the Motor Accident Injuries Act 2017, pain and suffering damages are part of the non-economic loss components of a claim. Insurers assess these damages by considering:
- Medical evidence: Detailed records from medical practitioners, including diagnostic reports, treatment plans, and impairment assessments.
- Nature of injury: Whether the injury meets the threshold for a claim, such as a soft tissue injury or a whole person impairment (WPI) rating.
- Impact on daily life: How the injury affects the injured person’s ability to work, perform everyday tasks, or enjoy life.
- SIRA guidelines: The NSW Government’s published Motor Accident Guidelines, which outline how to assess injuries and determine appropriate compensation.
Insurers typically use a two-step process:
- Threshold injury assessment: Determine if the injury meets the legal definition of a threshold injury (e.g., a soft tissue injury with neurological signs). This is critical as only injuries meeting this threshold qualify for pain and suffering damages.
- Damages calculation: If the injury meets the threshold, insurers estimate damages based on the severity of the injury, the duration of pain, and the long-term impact on the injured person’s life.
Factors insurers consider in rural and remote NSW
In rural and remote areas, insurers may face additional challenges in assessing claims, including:
- Access to specialists: Injuries requiring specialist medical opinions (e.g., neurologists, orthopedic surgeons) may be harder to assess due to limited local expertise.
- Documentation: Insurers may need to rely on telehealth consultations or specialist reports from distant locations, which can delay assessments.
- Evidence collection: Gathering evidence such as accident reports, witness statements, or photographs may be more difficult in remote areas.
For example, a pedestrian injured in a rural car park may need to rely on a specialist in a major city to assess the extent of their injuries, which could affect how insurers evaluate the claim.
Practical steps to support a pain and suffering claim
To strengthen a claim, injured persons should:
- Seek immediate medical attention: Document all treatments and keep records of all medical appointments.
- Obtain a whole person impairment (WPI) assessment: This is crucial for claims involving long-term or severe injuries.
- Keep a diary of symptoms and daily impact: This can help demonstrate the ongoing effects of the injury.
- Notify the insurer promptly: Delays in reporting injuries may affect the insurer’s ability to assess the claim fairly.
Time limits and when to seek advice
Claims must be made within 52 weeks of the accident if the injury is a threshold injury. If the injury does not meet the threshold, the 52-week limit does not apply. However, delays in seeking medical attention or reporting injuries can jeopardise a claim.
If you’re unsure whether your injury qualifies for pain and suffering damages, or if you’re facing difficulties with your insurer’s assessment, it’s important to seek legal advice. A solicitor can help you understand your options and ensure your claim is processed fairly.
Next steps
CTP entitlements depend on the specific facts of each case, including the date of the accident, the nature of the injury, and the evidence available. If you’re in rural or remote NSW and need assistance with a pain and suffering claim, complete the quick, no obligation enquiry form to request contact about your circumstances.