How Insurers Assess Liability When a Pre-existing Injury Is Aggravated
In New South Wales, if a motor accident worsens a pre-existing injury, insurers assess liability based on whether the accident caused or significantly contributed to the worsening. This is not determined by fault alone. Under the Motor Accident Injuries Act 2017, a person may still be entitled to compensation for a pre-existing condition that was aggravated by a motor accident, provided the injury is not solely attributable to the pre-existing condition. The insurer must consider whether the accident caused a material increase in the severity of the condition, not just a temporary exacerbation.
Legal Framework for Pre-existing Injury Claims
The Motor Accident Injuries Act 2017 governs all CTP claims in NSW, including those involving pre-existing injuries. The law recognises that a person may have an injury before a motor accident, but if the accident causes a significant worsening, they may still be eligible for benefits. The insurer must assess whether the accident was a substantial contributing factor to the increased impairment. This assessment is not based on whether the claimant was at fault in the accident, but on the medical evidence linking the accident to the deterioration of the pre-existing condition.
What Insurers Consider When Assessing Liability
Insurers typically review several factors when assessing liability in pre-existing injury aggravation claims. These include:
- The nature and extent of the pre-existing injury, as documented in medical records prior to the accident.
- The timing and nature of the accident, including whether it was a sudden impact or a low-speed collision.
- Medical evidence showing a measurable change in the condition following the accident, including diagnostic imaging, clinical assessments, and treatment progress.
- Whether the claimant sought medical attention promptly after the accident.
- The consistency of the claimant’s symptoms and treatment history with the accident’s impact.
Insurers may request a medical assessment from an independent practitioner to determine whether the accident caused or contributed to the aggravation. The assessment must be conducted under the Motor Accident Injuries Guidelines, which set standards for evaluating injury severity and causation.
Evidence That Supports a Claim
The strength of a claim involving a pre-existing injury depends heavily on evidence. Key documents include:
- Medical records from before and after the accident, showing the baseline condition and any changes.
- A medical report from a treating practitioner that links the worsening to the accident.
- Accident report details, including police reports, witness statements, and photographs of the scene.
- Records of treatment received after the accident, including rehabilitation, medication, and therapy.
- Evidence of lost income or reduced capacity to work, if applicable.
In Greater Sydney, where traffic density and accident frequency are higher, insurers may scrutinise claims more closely. However, the law does not treat Greater Sydney differently in principle, the assessment remains based on medical causation and evidence, not location.
Time Limits and Procedural Requirements
There are time limits for making a claim under the CTP scheme. A claim must generally be made within three years of the accident date. Failure to meet this deadline may prevent a claim from being heard, unless an extension is granted under exceptional circumstances. It is also important to notify the insurer as soon as possible after the accident, as delays may affect the insurer’s ability to investigate and assess liability.
If an insurer denies a claim based on the argument that the injury was not caused by the accident, the claimant may request a review. If the review is unsuccessful, they may apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. The claimant must provide all relevant evidence, including medical reports and accident documentation, to support their case.
When to Seek Independent Advice
A claim involving a pre-existing injury can be complex, particularly where the injury was present before the accident. The claimant may benefit from independent legal advice to understand their rights, assess the strength of their evidence, and ensure that all procedural steps are followed correctly. This is especially important if the insurer disputes causation or offers a settlement that does not reflect the full impact of the aggravation.
Hypothetical Example
A 52-year-old driver in Sydney had a pre-existing degenerative disc condition in the lower back, which had been stable for five years. After a low-speed rear-end collision in a car park in North Ryde, the driver experienced a sudden increase in pain and was diagnosed with a herniated disc. Medical assessments confirmed that the accident caused a significant worsening of the condition. The insurer initially denied liability, arguing the injury was pre-existing. However, after a review and submission of medical evidence, the insurer accepted liability and agreed to cover treatment and care benefits.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.