What Changed for Pedestrian Crossing Injury Claims After 2017?
Pedestrian crossing injuries in NSW are now governed by the Motor Accident Injuries Act 2017, which replaced the previous CTP regime. The key change is that eligibility for compensation is no longer automatic simply because a pedestrian was struck at a marked crossing. Instead, a claimant must now meet specific criteria under the new statutory framework. The most significant shift is the introduction of a threshold for damages: to claim damages for pain and suffering, a person must have a threshold injury as defined in the Act. This means that not all injuries sustained at a crossing now qualify for damages, even if the driver was at fault. The 2017 reforms also introduced a more structured process for assessing injury severity, including the use of the Motor Accident Guidelines to determine whether an injury meets the threshold. This change means that claims involving soft tissue injuries, such as whiplash or back strain, are now subject to a formal assessment process.
How the 2017 Reforms Affect Claim Eligibility
Under the Motor Accident Injuries Act 2017, a pedestrian injured at a crossing must establish that their injury meets the statutory threshold to claim damages. This threshold includes injuries that result in a permanent impairment of at least 10% of the whole person, or a permanent impairment of at least 5% if the injury is to a specific body region such as the spine or brain. For injuries that do not meet this threshold, a claimant may still receive treatment and care benefits and weekly income payments, but only for up to 52 weeks after the accident. After that period, these benefits generally cease unless the injury is determined to be a threshold injury. This means that a pedestrian with a minor soft tissue injury that does not result in a permanent impairment may not be entitled to long-term financial support.
The reforms also clarify that fault is not a barrier to receiving treatment and care benefits or weekly income payments. These benefits are available regardless of who caused the accident, as long as the injury occurred in a motor vehicle accident. However, to claim damages for pain and suffering, the claimant must still prove that the injury was caused by the accident and that it meets the threshold. This distinction means that a pedestrian who was hit at a crossing by a driver who was distracted or speeding may still be denied damages if their injury does not meet the threshold, even if fault is clear.
Practical Steps and Evidence That Matter
If you were injured as a pedestrian at a marked crossing in NSW, the following steps are essential to support a claim under the 2017 framework:
- Seek medical attention immediately and keep all records, including diagnosis, treatment plans, and reports from your medical practitioner.
- Report the accident to the police if it was not already done, and obtain a copy of the police report if available.
- Collect contact details for any witnesses who saw the incident.
- Take photographs of the crossing, any visible damage to your clothing or body, and the vehicle involved.
- Preserve any communications with the insurer, including emails or letters.
- Notify your CTP insurer as soon as possible, ideally within 28 days of the accident, to avoid delays in receiving benefits.
The Motor Accident Guidelines set out the clinical criteria for determining whether an injury qualifies as a threshold injury. For example, a spinal nerve-root injury that causes neurological signs such as muscle weakness or loss of sensation may qualify, but radiculopathy alone does not unless it meets specified clinical signs. These guidelines are used by assessors to determine eligibility for damages, so having a medical report that clearly references the Guidelines is critical.
Time Limits and Dispute Options
There is a 3-year time limit from the date of the accident to commence legal proceedings for damages. This limit applies to all motor accident claims in NSW, including pedestrian crossing injuries. However, the 52-week limit on treatment and care benefits and weekly income payments begins from the date of the accident, not from the date of claim submission. This means that if you do not apply for benefits within 52 weeks, you may lose entitlement to them, even if you have not yet received a final assessment.
If your claim for benefits is denied or you disagree with the assessment of your injury, you may apply to the Motor Accident Commission for a review. You can also request a review of the threshold assessment by an independent medical assessor. These processes are governed by the Motor Accident Injuries Regulation 2017 and must be initiated within 12 months of the insurer’s decision.
A Realistic Example
A 34-year-old woman was struck by a car while crossing a marked pedestrian crossing in Sydney. She sustained a soft tissue injury to her neck and back. She sought medical treatment within two days and was diagnosed with a cervical strain. Her medical report noted that she had no permanent impairment and did not meet the 10% threshold for damages. Under the 2017 reforms, she was still entitled to treatment and care benefits and weekly income payments for up to 52 weeks. However, because her injury did not meet the threshold, she could not claim damages for pain and suffering, even though the driver was found to be at fault.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.