What Changed for Traumatic Brain Injury Claims After the 2017 Reforms?
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).
Since the Motor Accident Injuries Act 2017 (MAIA) came into effect on 1 December 2017, traumatic brain injury (TBI) claims in New South Wales have been governed by a new framework that prioritises early assessment, medical evidence and a structured approach to compensation. The reforms were designed to improve consistency, reduce delays and ensure that claims are determined based on objective medical evidence rather than dispute or litigation. For claimants in Greater Sydney and across NSW, this means that TBI claims are now assessed under a formal process that includes mandatory medical evaluations, a focus on functional impairment, and a clearer pathway to benefits and damages.
The most significant change is the introduction of a formal threshold for claiming damages. A person must now demonstrate that their injury is more than a minor injury, specifically, that it is a threshold injury under the Motor Accident Guidelines. For TBI, this means that a person must have sustained a permanent impairment of at least 10% to the whole person, as assessed by a qualified medical practitioner using the Australian Institute of Health and Welfare (AIHW) impairment assessment criteria. This threshold applies equally in Greater Sydney and other regions of NSW.
How the 2017 Reforms Affect Traumatic Brain Injury Claims
Under the MAIA, a traumatic brain injury is treated as a serious injury if it results in a permanent impairment of 10% or more to the whole person. This is a change from the previous scheme, which allowed claims for a broader range of injuries, including some that were not permanently disabling. The new threshold ensures that only injuries with a lasting impact on daily life are eligible for damages.
For claimants in Greater Sydney, the reforms have introduced a more structured process for claiming compensation. The claim must be supported by medical evidence that demonstrates the nature, extent and long-term impact of the TBI. This includes neuroimaging (such as MRI or CT scans), neuropsychological assessments, and a clinical history from a specialist in brain injury or neurology. The assessment must be conducted by a medical practitioner registered under the MAIA to assess impairment.
A key change is that the CTP insurer is not required to pay damages simply because a TBI occurred. The claimant must prove that the injury meets the threshold for damages and that it has caused a measurable impact on their ability to work, perform daily activities, or maintain relationships. This shift places greater emphasis on objective medical evidence and reduces the likelihood of claims being accepted on the basis of subjective symptoms alone.
What Evidence Matters for a TBI Claim
To support a traumatic brain injury claim under the 2017 reforms, claimants must gather and preserve a range of evidence. This includes:
- Medical records from the initial treatment and all subsequent assessments, including notes from neurologists, neuropsychologists, and rehabilitation specialists.
- Diagnostic imaging reports (MRI, CT scans) showing structural brain changes or abnormalities.
- Neuropsychological test results that demonstrate cognitive deficits, such as memory loss, attention difficulties, or executive dysfunction.
- A formal whole person impairment (WPI) assessment conducted by a registered medical assessor.
- A statement from a treating medical practitioner detailing the impact of the injury on daily life and capacity to work.
- Records of any changes in employment, education, or household responsibilities since the accident.
In Greater Sydney, where access to specialist care is generally good, claimants are expected to seek assessment from a medical practitioner with expertise in brain injury. Delays in obtaining a formal assessment may affect the timing of benefit payments and the ability to establish a clear link between the accident and the injury.
Practical Steps and Time Limits
There are time limits that apply to making a claim for a traumatic brain injury under the CTP scheme. A claim must be made within three years of the accident date. This deadline is strict and cannot be extended unless the claim is made under a special circumstance, such as a dispute about fault or a claim for lifetime care.
The first practical step is to seek medical attention as soon as possible after the accident. Even if symptoms are not immediately apparent, a TBI may present with delayed onset. Early medical evaluation helps establish a baseline and supports the claim.
After receiving medical treatment, the claimant should notify their CTP insurer (or the insurer of the at-fault party) in writing. This can be done through the SIRA online portal or by sending a letter. The insurer will then assess the claim and may request a medical assessment.
A hypothetical example: A 34-year-old office worker in Sydney CBD was struck by a car while crossing a street in the Eastern Suburbs. The driver was at fault. The person experienced confusion, dizziness, and memory problems in the days after the accident. They were treated at a major hospital, where an MRI showed a mild traumatic brain injury. A neuropsychological assessment six weeks later confirmed a 12% whole person impairment. The claimant submitted a formal claim under the MAIA, provided medical evidence, and was awarded weekly income payments and a lump sum for damages.
When to Seek Advice
The 2017 reforms have made the CTP process more complex for claimants with serious injuries like TBI. The need for formal medical assessments, the threshold for damages, and the potential for disputes over impairment ratings mean that claimants often benefit from independent advice.
The claimant should consider seeking assistance from a qualified legal practitioner or a claims assessor if:
- The insurer disputes the extent of the injury or the impairment rating.
- The claimant is unable to return to work and seeks long-term support.
- The insurer refuses to pay damages despite a confirmed 10% or higher WPI.
- The claimant is unsure about how to proceed with medical assessments or benefit applications.
SIRA provides information and guidance on the claims process, but it does not provide legal advice. Independent advice is essential to ensure that a claim is properly supported and that all rights under the MAIA are protected.
Next Steps
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.