Proving a Pre-existing Injury Was Aggravated in a NSW Motor Accident
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 you were involved in a motor accident in the Newcastle or Hunter region and a pre-existing injury was made worse, you may be entitled to compensation under the NSW Compulsory Third Party (CTP) insurance scheme. To establish entitlement, you must show that the accident caused a significant worsening of your pre-existing condition. This is not automatic. The law requires evidence that the accident was a substantial contributing factor to the increased harm, not merely a background condition. This distinction is critical under the Motor Accident Injuries Act 2017 and the Motor Accident Guidelines issued by the State Insurance Regulatory Authority (SIRA).
Key Evidence to Collect for Your Claim
To support a claim for an aggravated pre-existing injury, you must gather and preserve specific documentation. This evidence helps demonstrate that the accident caused a measurable increase in your condition. The following items are commonly required:
- A detailed medical history from your treating medical practitioner, including records of the pre-existing injury and any prior treatment or diagnosis.
- A written assessment from your medical practitioner confirming that the accident caused a significant worsening of your pre-existing condition. This should include a clinical explanation linking the accident to the increased symptoms or functional impairment.
- Medical records from before and after the accident, including imaging reports (X-rays, MRIs), physical therapy notes, and any changes in medication or treatment plans.
- A contemporaneous record of your symptoms and functional limitations before and after the accident, such as a daily diary kept at the time of the injury.
- Photographs of the accident scene, vehicle damage, or any visible injuries at the time of the crash.
- Witness statements, if available, describing how your condition changed after the accident.
How SIRA’s Guidelines Apply to Aggravated Injuries
SIRA’s guidance on motor accident claims confirms that a pre-existing injury does not bar compensation if it was aggravated by the accident. The focus is on causation: whether the accident caused a material increase in the severity of the injury. For example, if you had a chronic back condition before a crash and now experience significantly worse pain, limited mobility, or require new treatment, this may constitute an aggravation.
SIRA emphasises that medical evidence must clearly distinguish between pre-accident and post-accident status. A diagnosis of a pre-existing condition alone is not sufficient. The treating practitioner must provide an opinion on whether the accident caused a substantial worsening, supported by objective findings such as new imaging results, increased pain scores, or changes in physical function.
Practical Steps to Take After the Accident
Act promptly after a motor accident, particularly if you have a known pre-existing condition. Immediate steps include:
- Seek medical attention as soon as possible, even if symptoms seem mild. Delaying treatment may weaken your claim.
- Inform your medical practitioner that the injury occurred in a motor accident and that you have a pre-existing condition. This ensures accurate documentation.
- Notify your CTP insurer or the insurer of the at-fault vehicle as soon as possible. Under the Motor Accident Injuries Act 2017, you must give notice within a reasonable time.
- Keep a record of all communications with insurers, medical practitioners, and any other parties.
- Preserve all original medical records, correspondence, and accident-related documentation.
Time Limits and Claim Eligibility
There are time limits for making a CTP claim. You must generally make a claim within three years of the accident date. However, if you are claiming for a threshold injury, the 52-week rule may apply, limiting treatment and care benefits after that period unless the injury exceeds the threshold. This does not affect claims for aggravated pre-existing injuries, which may continue to be supported beyond 52 weeks if the injury remains active and requires ongoing treatment.
If your claim is denied or you believe the insurer has not properly assessed your aggravated injury, you may request a review. SIRA provides a process for dispute resolution, including mediation and, if necessary, a review by the NSW Civil and Administrative Tribunal (NCAT).
Hypothetical Example: Back Injury Aggravated by a Rear-End Collision
Consider a person who had a history of lumbar disc degeneration and was receiving ongoing physiotherapy before a rear-end collision in Newcastle. After the crash, they experienced a sudden increase in lower back pain, sciatica, and difficulty walking. Their MRI post-accident showed a new herniation not present before. Their treating doctor confirmed that the accident was a substantial contributing factor to the new injury. This evidence supports a claim for aggravated pre-existing injury, including treatment and care benefits, weekly income payments, and potentially damages if the injury exceeds the threshold.
When to Seek Independent Advice
Every claim depends on its own facts. The nature of the pre-existing injury, the strength of medical evidence, and the circumstances of the accident all affect eligibility. If you have a pre-existing condition and were injured in a motor accident in the Newcastle or Hunter region, you should not assume entitlement. The legal test is whether the accident caused a significant worsening, not just a continuation of a pre-existing issue.
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