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).
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, if a motor accident involves shared fault between parties, injured claimants may still be eligible for compensation through the Compulsory Third Party (CTP) scheme. However, shared liability can influence how daily activities are assessed and what benefits are available. This article explains how partial fault claims work under NSW law, focusing on the practical implications for claimants seeking to return to routine tasks.
How Shared Fault Affects CTP Claims
Under the Motor Accident Injuries Act 2017, CTP claims in NSW are based on the principle that all road users are insured against serious injury. Even if both parties contributed to the accident, claimants may still receive compensation for injuries, including those affecting daily activities. However, the allocation of fault impacts the types of benefits available. For example, if fault is shared, the injured person’s ability to resume activities like work or self-care may be assessed differently compared to a case where one party is entirely at fault.
SIRA guidelines clarify that daily activities are evaluated based on the injured person’s pre-accident capacity. If shared fault leads to a determination that the injury is a 'threshold injury' (a soft-tissue injury with minimal long-term impact), benefits may be limited after 52 weeks. This distinction is critical because threshold injuries under the CTP scheme are typically not eligible for long-term compensation.
Practical Steps for Daily Activity Claims
To support a claim about returning to daily activities, injured claimants should:
- Document all changes in ability to perform routine tasks (e.g., cooking, shopping, work)
- Obtain medical evidence linking the injury to daily activity limitations
- Keep records of how the injury affects work or personal care
- Gather witness statements or employer records if work capacity is impacted
Medical professionals must assess whether the injury meets the 'threshold injury' criteria under the Motor Accident Guidelines. For instance, a spinal nerve-root injury with neurological signs may qualify as a threshold injury, even if there is no radiculopathy.
Time Limits and Dispute Resolution
CTP claims must be submitted within 52 weeks of the accident for certain benefits, though some claims may extend beyond this period depending on the injury type. If a claimant disputes an insurer’s assessment of their ability to return to daily activities, they may need to:
- Request a review of the claimant’s medical records
- Seek independent medical opinion if the injury’s impact is contested
- Lodge a formal dispute with the insurer’s internal review process
In cases where the fault is shared, claimants should also consider whether their claim overlaps with workers’ compensation or other schemes. While CTP focuses on injuries caused by motor vehicles, other schemes may cover workplace-related injuries.
Example: Shared Fault and Daily Activity Impact
Consider a scenario where a cyclist collides with a car at an intersection. Both parties are at fault: the cyclist failed to yield, and the driver was speeding. Under CTP rules, the cyclist may claim for injuries that prevent them from returning to work or managing household tasks. However, if the injury is determined to be a threshold injury, the 52-week limit on benefits may apply, even if the injury impacts daily activities beyond that period.
When to Seek Legal Advice
While SIRA provides guidance on daily activity claims, the process can be complex. Claimants should seek legal advice if:
- The injury’s impact on daily activities is disputed
- The claimant is unsure about their eligibility for benefits
- The fault allocation affects the type of compensation available
Legal professionals can help navigate the distinction between statutory benefits and common law damages, ensuring claimants understand their options under the CTP scheme.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.