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).
If a motor accident worsens a pre-existing injury, caregivers and families in New South Wales may face complex legal and practical challenges. Under the Motor Accident Injuries Act 2017 (MAIA), claims for aggravated injuries require proving a direct link between the accident and the worsening condition. This article explains how NSW law assesses such claims, what evidence is needed, and how caregivers can navigate the process.
How NSW Law Determines Injury Aggravation
NSW law considers whether the accident caused a "material worsening" of a pre-existing condition. This requires medical evidence showing the accident increased pain, limited mobility, or caused new complications. For example, a pre-existing back injury that worsens after a collision may qualify if medical records confirm the accident triggered new symptoms.
The MAIA does not automatically assume pre-existing injuries are unaffected. Claimants must demonstrate the accident caused a "material worsening" beyond normal recovery. This distinction is critical, as claims for aggravated injuries may access additional benefits like weekly payments or treatment costs.
Evidence Needed for Pre-existing Injury Claims
Caregivers should gather:
- Medical records showing the pre-existing condition and its worsening
- Expert opinions linking the accident to the aggravation
- Witness statements or accident reports
- Income records to assess care-related financial impacts
SIRA guidelines emphasize that claims must show the accident caused a "new or worsened injury". For instance, if a pre-existing knee condition required surgery after an accident, medical reports must explicitly connect the accident to the surgery.
Caregiver and Family Considerations
Families may face increased caregiving demands, financial strain, and emotional stress. Under the MAIA, caregivers can claim weekly payments if the injured person's condition requires ongoing care. However, these payments are limited to 52 weeks for "only injuries" (per s 4.4 of the MAIA), so claims must establish the aggravation meets the threshold injury definition.
Caregivers should also consider:
- Time limits: Claims must be made within 3 years of the accident (s 5.1 of the MAIA)
- Support services: SIRA offers free legal advice and claim assistance through its claims portal
- Financial impact: Caregiving costs may qualify for additional support under the scheme
When to Seek Legal Advice
Caregivers should consult a solicitor if:
- The injured person's condition is unclear or disputed
- Medical records are incomplete or conflicting
- The claim faces a dispute from the insurer
- Caregiving costs exceed weekly payment limits
Legal professionals can help navigate complex medical evidence and ensure caregivers access all available support. The MAIA allows for claims to be made on behalf of dependants, making legal assistance particularly valuable for families.
Next Steps for Caregivers
If your loved one's pre-existing injury has worsened after a motor accident, start by:
- Seeking immediate medical attention to document the aggravation
- Collecting all accident-related evidence
- Contacting SIRA to discuss claim options
- Consulting a solicitor if the claim is disputed
Time limits and procedural requirements mean prompt action is essential. Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.