How NSW CTP insurers assess pain and suffering damages
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).
In New South Wales, the Personal Injury Commission (PIC) evaluates pain and suffering claims under the Motor Accident Injuries Act 2017. Insurers assess these damages based on medical evidence, the nature of the injury, and the claimant’s recovery progress. Pain and suffering are non-economic losses that cover physical discomfort, emotional distress, and loss of enjoyment of life. However, the PIC has strict guidelines to determine the amount of compensation.
Practical steps and evidence for pain and suffering claims
To support a pain and suffering claim, claimants must provide:
- Medical records showing the injury’s impact, including treatment plans and recovery timelines.
- Expert reports from medical practitioners detailing the injury’s severity and long-term effects.
- Witness statements or accident reports to establish the incident’s circumstances.
- Evidence of daily life impact, such as difficulty sleeping, work absences, or reduced quality of life.
The PIC may request additional information, such as psychological assessments or rehabilitation records, to verify the claim.
How PIC assessments differ in disputes
In disputes, the PIC may challenge the claimant’s evidence or argue the injury doesn’t meet the threshold for compensation. For example, if a claimant alleges chronic pain but medical records show no ongoing symptoms, the PIC may dispute the claim. Claimants must demonstrate that their pain and suffering are objectively measurable and documented.
Common dispute points include:
- Disagreements over injury severity - the PIC may argue the injury is minor or temporary.
- Questions about recovery timelines - the PIC may challenge whether the claimant’s recovery aligns with medical expectations.
- Disputes over long-term effects - the PIC may argue the injury won’t have lasting impacts.
Common reasons for disputes in NSW
Disputes often arise because the PIC has strict rules about what constitutes a valid pain and suffering claim. For example, under the Motor Accident Injuries Act 2017, only injuries meeting the 'threshold injury' definition are eligible for compensation. If a claimant’s injury doesn’t meet this threshold, the PIC may reject the claim.
Another common issue is the 52-week rule. If a claimant’s only injuries are threshold injuries, weekly benefits and treatment benefits stop after 52 weeks. This can lead to disputes if the claimant believes their injury requires longer-term support.
When to seek legal advice
Claimants should seek legal advice if:
- The PIC rejects their claim or disputes the amount.
- They’re unsure whether their injury meets the threshold for compensation.
- They need help challenging a PIC decision.
A solicitor can help claimants understand their options, such as requesting a review of the PIC’s decision or pursuing a dispute through the NSW Civil and Administrative Tribunal (NCAT).
Example of a PIC dispute
Consider a claimant who suffered a soft-tissue injury in a Bankstown car accident. They submit medical records showing chronic pain and sleep disturbances. The PIC disputes the claim, arguing the injury is minor. The claimant must provide additional evidence, such as a psychologist’s report linking the injury to anxiety, to support their case.
Next steps for claimants
If you’re involved in a CTP dispute over pain and suffering damages, it’s important to act quickly. The PIC has time limits for processing claims, and delays can affect your ability to challenge a decision. To request contact about your circumstances, complete the quick, no obligation enquiry form.