Proving a Pre-existing Injury Was Aggravated in a 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 had a medical condition before a motor accident in NSW and your symptoms worsened as a result, you may be entitled to compensation through the Compulsory Third Party (CTP) insurance scheme. This applies whether you were a driver, passenger, pedestrian, cyclist or motorcyclist in the Illawarra or South Coast region. To establish entitlement, you must show that the accident caused a significant worsening of your pre-existing injury. This is not automatic, the law requires clear medical and factual evidence to support the claim.
What NSW Law Requires for Aggravation Claims
Under the Motor Accident Injuries Act 2017, a person can claim compensation for injuries that are aggravated by a motor accident, even if the injury existed before the crash. The key legal test is whether the accident caused a material increase in the severity of the pre-existing condition. This means the injury must be worse than it was before the accident, and the worsening must be directly linked to the crash.
The Motor Accident Injuries Regulation 2017 and the Motor Accident Guidelines set out how SIRA (the State Insurance Regulatory Authority) assesses claims involving pre-existing injuries. These documents confirm that medical evidence must clearly demonstrate the baseline condition prior to the accident and the change in condition after the accident. Simply having a pre-existing injury does not automatically entitle you to additional benefits, the injury must have been made significantly worse by the crash.
Essential Evidence and Records to Keep
To support a claim for aggravation of a pre-existing injury, you must collect and preserve the following records:
- Medical records from before the accident, including diagnosis, treatment, imaging (X-rays, MRIs), and any treatment notes from your GP, specialist, or physiotherapist.
- Medical records from after the accident, including all follow-up appointments, new diagnoses, treatment plans, prescriptions, and any changes in medication or therapy.
- A detailed injury history from your treating medical practitioner, explaining how the pre-existing condition was stable or managed before the accident, and how it deteriorated after.
- A written statement from your treating medical practitioner confirming the aggravation, including a clinical assessment of the change in condition and a causal link to the accident.
- Photographs of the accident scene, vehicle damage, or any visible injuries at the time of the crash.
- Witness statements, if available, describing the impact of the crash and any immediate changes in your condition.
- Records of lost income, if the aggravation prevented you from working.
In the Illawarra and South Coast regions, access to medical services may vary. It is important to seek treatment as soon as possible after the accident, ideally from a provider familiar with CTP claims. Delaying treatment may weaken your claim, as it can be harder to establish a direct link between the accident and the worsening of symptoms.
Time Limits and Procedural Requirements
There is a time limit to make a CTP claim in NSW. You must notify your insurer within 3 months of the accident, or within 12 months if you are claiming for a threshold injury under the Motor Accident Injuries Act 2017. For claims involving pre-existing injury aggravation, the 3-month notice period applies unless you are claiming for a threshold injury, in which case the 12-month limit may apply.
If you are claiming for damages (such as for pain and suffering or future care), you must also meet the threshold injury test. This means your injury must be a permanent impairment of at least 10% whole person impairment (WPI), or it must be a threshold injury as defined in the Motor Accident Guidelines.
Common Challenges and How to Avoid Them
A common issue in pre-existing injury aggravation claims is that the insurer disputes the causal link between the accident and the worsening of symptoms. Insurers may argue that the injury would have progressed anyway, or that the symptoms were not significantly worse after the accident. To counter this, you must ensure your medical evidence includes:
- A clear baseline of your condition before the accident.
- Objective clinical findings showing a measurable change after the accident.
- A medical opinion that supports a causal connection between the crash and the aggravation.
A hypothetical example: A 52-year-old driver from Wollongong had a history of chronic lower back pain, managed with physiotherapy. After a minor rear-end collision in Shellharbour, his pain worsened significantly, requiring surgery. His medical records showed stable back function for 18 months prior to the accident. Post-accident imaging revealed a new disc herniation not present before. His treating surgeon confirmed the accident caused a material aggravation of his pre-existing condition. This evidence supported a successful claim for treatment and care benefits and damages.
When to Seek Independent Advice
Every claim depends on its own facts. The available options may depend on the facts, evidence and applicable law. If you are unsure whether your pre-existing injury was aggravated, or if your insurer has rejected your claim, you should seek independent legal advice. A solicitor experienced in CTP claims can help you gather and present evidence, review your medical records, and advise on whether to pursue a claim for damages.
Next Steps
The available options may depend on the facts, evidence and applicable law. Complete the quick, no obligation enquiry form to request contact about your circumstances.