Under the Motor Accident Injuries Act 2017 (MAIA), a person may be eligible for compensation in New South Wales if their injury meets the legal definition of a 'serious injury' under the CTP scheme. This threshold determines access to ongoing benefits and damages. In Greater Sydney, as elsewhere in NSW, eligibility depends on whether the injury is classified as a threshold injury, which includes certain soft tissue injuries with neurological signs, or a more severe injury that exceeds the threshold.
What constitutes a serious injury under NSW law?
The serious injury threshold is defined in the Motor Accident Guidelines and applies to injuries resulting from a motor vehicle accident. A person is considered to have a serious injury if they have sustained an injury that is a threshold injury under the MAIA. This includes injuries such as fractures of major bones, significant soft tissue injuries with neurological signs, or spinal nerve-root injuries that produce neurological symptoms, even if radiculopathy is not present. The term 'soft tissue' is part of the statutory definition and refers to injuries to muscles, ligaments, tendons or other connective tissues.
An injury that does not meet the threshold, such as a minor sprain or whiplash without neurological signs, may still qualify for limited benefits but does not allow access to damages or long-term treatment and care benefits.
How does the threshold affect compensation entitlements?
If a person’s injury exceeds the threshold, they may be entitled to weekly income payments, treatment and care benefits, and a claim for damages. These benefits are not limited to a fixed period and may continue for as long as the injury persists.
However, if a person’s only injuries are threshold injuries, weekly benefits and treatment and care benefits generally cease after 52 weeks from the date of the accident. This is because the MAIA provides that where only threshold injuries result from the accident, benefits are limited to 52 weeks under sections 3.11 and 3.28.
A claim for damages may still be possible if the injury exceeds the threshold, but it must be established through a medical assessment for whole person impairment. This assessment determines the extent of permanent impairment and may form the basis for a damages claim.
Evidence and procedural requirements
To establish eligibility, claimants must provide medical evidence from a registered medical practitioner. This includes a detailed record of the injury, diagnostic imaging, and a clinical assessment confirming the presence of neurological signs or other qualifying features. A treating doctor’s statement confirming that the injury meets the threshold criteria is essential.
For example, a person who sustained a fractured femur with associated nerve damage causing numbness in the foot may meet the threshold. In contrast, a person with a minor soft tissue injury and no neurological signs would not.
It is important to notify the insurer of the claim within 52 weeks of the accident to preserve rights to weekly benefits. Failure to do so may prevent access to benefits under the 52-week rule, even if the injury exceeds the threshold.
When to seek legal advice
Disputes often arise over whether an injury meets the threshold, particularly when neurological signs are not clearly documented. Insurers may challenge claims based on incomplete medical records or differing medical opinions. Legal advice can help ensure that medical evidence is properly presented and that procedural deadlines are met.
If a claimant believes their injury exceeds the threshold but has been denied benefits, or if they are seeking damages, a legal professional can assist in preparing for a whole person impairment assessment and, if necessary, pursuing a claim through the NSW Civil and Administrative Tribunal (NCAT).
Next steps
The availability of compensation depends on the nature of the injury, the evidence provided, and the timing of the claim. Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.