How NSW CTP Insurers Assess Liability for Pre-existing Injury Aggravation
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).
If a motor accident worsens a pre-existing injury, determining liability involves assessing whether the accident caused a new or increased injury. Under NSW's Compulsory Third Party (CTP) scheme, insurers must evaluate whether the aggravation meets the legal threshold for compensation. This process applies equally in regional and metropolitan areas, but regional claims may face unique challenges such as limited access to medical specialists or longer processing times.
Legal Framework for Pre-existing Injury Aggravation
NSW CTP insurers assess liability by considering the Motor Accident Injuries Act 2017 and the Motor Accident Guidelines. Key principles include:
- Threshold injury rules: An injury must meet specific clinical criteria to qualify for benefits. For example, a pre-existing back injury must be aggravated to the point of requiring new treatment or causing increased pain.
- Causation requirement: The accident must be the dominant cause of the aggravation. Insurers will examine medical evidence to determine if the injury worsened due to the accident rather than natural progression.
- No-fault basis: CTP claims are not dependent on proving fault, but insurers must still assess whether the aggravation meets the scheme's injury criteria.
Evidence Required to Prove Aggravation
To support a claim, injured road users must provide:
- Medical records: Detailed documentation from doctors showing the pre-existing injury, its history, and how the accident worsened it. For example, a scan showing increased disc degeneration after the accident.
- Accident reports: Police or witness accounts confirming the incident and its impact on the injured person.
- Expert opinions: Medical professionals may need to testify that the aggravation meets the threshold injury definition under the Motor Accident Guidelines.
- Before-and-after evidence: Comparing medical assessments before and after the accident to demonstrate the aggravation.
Regional NSW Considerations
While the legal assessment process is the same as in metropolitan areas, regional claims may involve:
- Access to specialists: Rural areas often have fewer medical experts, which can delay assessments or require referrals to distant specialists.
- Processing times: Insurers in regional NSW may take longer to review complex claims due to resource constraints.
- Transport and logistics: Injuries requiring specialist care may necessitate travel, which can affect recovery timelines and claim outcomes.
Time Limits and Dispute Options
CTP claims must be submitted within 52 weeks of the accident if the injury is a threshold injury. If the aggravation results in a whole-person impairment (e.g., 10% or more), benefits may continue beyond 52 weeks. Disputes over liability or injury severity can be resolved through:
- Mediation with SIRA: The State Insurance Regulatory Authority (SIRA) oversees CTP claims and can facilitate disputes.
- Independent medical assessments: SIRA may require a second opinion to verify the extent of the aggravation.
- Legal review: In complex cases, seeking advice from a solicitor specialising in regional CTP claims can help navigate the process.
When to Seek Legal Advice
Contact a solicitor if:
- The insurer denies the claim or disputes the aggravation.
- Medical evidence is unclear or contested.
- The injury involves long-term complications requiring ongoing treatment.
- The claim is time-sensitive and needs urgent action.
Example Scenario
Consider a cyclist with a pre-existing knee injury who aggravates it during a collision. The insurer would:
- Review medical records showing the injury's history.
- Assess whether the accident caused new symptoms like swelling or instability.
- Compare pre- and post-accident assessments to determine if the injury meets the threshold.
- Consider the cyclist's ability to work or perform daily activities if the injury worsens.
Next Steps
CTP entitlements depend on the accident date, injury type, and claim history. To request contact about your circumstances, complete the quick, no obligation enquiry form.