Understanding Traumatic Brain Injury Claims Under NSW CTP Law
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).
A traumatic brain injury (TBI) resulting from a motor accident in New South Wales may give rise to a claim for compensation under the Compulsory Third Party (CTP) insurance scheme. Insurers assess these claims based on the Motor Accident Injuries Act 2017 (MAIA), which governs all CTP claims in NSW. The decision-making process focuses on whether the injury qualifies for benefits, the extent of impairment, and whether the claimant meets the legal thresholds for damages. Insurers in Greater Sydney and across NSW follow the same statutory framework, but the evaluation process is influenced by medical evidence, treatment outcomes, and compliance with procedural requirements. The outcome depends on the nature of the injury, the medical findings, and how well the claimant has documented their circumstances.
What Insurers Consider When Evaluating TBI Claims
Insurers assess traumatic brain injury claims using a structured approach under the MAIA and the Motor Accident Injuries (MAI) Guidelines issued by the State Insurance Regulatory Authority (SIRA). The primary factors include:
- The nature and severity of the brain injury, including whether it resulted from a direct impact or acceleration/deceleration forces.
- The presence of neurological signs or symptoms confirmed by medical imaging (such as CT or MRI scans) and clinical assessment.
- Whether the injury meets the definition of a threshold injury under the MAIA, which may affect eligibility for damages.
- The duration and impact of symptoms, including cognitive, emotional, and physical impairments.
- Whether the injury has caused a permanent impairment, as assessed by a qualified medical practitioner using the Whole Person Impairment (WPI) rating.
Insurers do not base decisions on subjective feelings alone. They rely on objective medical evidence, including neuropsychological testing, neuroimaging, and a history of treatment and recovery progress. A claim may be declined if the medical evidence does not demonstrate a sustained or significant impact on daily functioning.
The Role of Medical Assessments in Insurer Decisions
Medical assessments are central to insurer decisions in TBI claims. Insurers typically require a formal assessment by a specialist in neurology, neuropsychology, or rehabilitation medicine. The assessment must follow the SIRA guidelines, which specify that a TBI must be confirmed through clinical and radiological evidence, and that functional limitations must be demonstrated.
Key elements in the assessment include:
- A documented history of symptoms, including changes in memory, concentration, mood, or behaviour.
- Objective test results from cognitive assessments, such as the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) or the Montreal Cognitive Assessment (MoCA).
- Evidence of ongoing treatment, including therapy, medication, and specialist follow-up.
- A WPI rating, which quantifies the permanent loss of function due to the injury.
Insurers may request a second medical opinion if the initial assessment is inconsistent with the SIRA guidelines or if the claimant’s symptoms appear disproportionate to the injury mechanism. Discrepancies in medical reports can delay or affect the outcome of a claim.
Practical Steps and Evidence That Matter
To support a TBI claim and improve the chances of a favourable insurer decision, claimants should:
- Seek medical attention immediately after the accident, even if symptoms are not immediately apparent.
- Keep a daily journal of symptoms, including headaches, fatigue, mood changes, or cognitive difficulties.
- Preserve all medical records, including emergency department notes, specialist referrals, imaging reports, and therapy notes.
- Collect witness statements, photographs of the accident scene, and any police or accident report (if applicable).
- Notify the insurer of the claim within a reasonable time, as required under the MAIA.
A claim may be weakened if medical evidence is incomplete, inconsistent, or not obtained within a timely manner. Insurers may question the credibility of a claim if there is a gap between the accident and the first medical consultation, or if treatment was not pursued consistently.
How SIRA Guidelines Support Claimants
The SIRA guidelines provide a consistent framework for evaluating TBI claims across NSW, including Greater Sydney. These guidelines clarify that a traumatic brain injury may include injuries caused by rapid head movement, even without direct impact. They also define when a TBI constitutes a threshold injury, which may limit eligibility for damages unless the injury exceeds the threshold.
The guidelines state that a TBI may qualify as a threshold injury if it results in a permanent impairment of 10% or more, as measured by WPI. However, if the injury causes a permanent change in mental or emotional function, such as depression, anxiety, or personality change, and this is supported by clinical evidence, it may still be considered for damages even if it does not meet the 10% WPI threshold.
SIRA also provides a framework for assessing treatment and care benefits, including access to rehabilitation, psychological support, and assistive technology. These benefits are not limited to a fixed time period if ongoing treatment is medically necessary.
Time Limits and Dispute Options
There is a strict time limit for making a CTP claim in NSW. A claim must be made within three years of the accident date. Failure to meet this deadline may prevent a claim from being heard, even if the injury was not immediately apparent.
If an insurer denies a TBI claim or offers a settlement that does not reflect the medical evidence, the claimant may dispute the decision. Dispute options include:
- Requesting a review of the insurer’s decision, supported by additional medical evidence.
- Applying to the SIRA dispute resolution service for an independent assessment.
- Seeking a formal review by the Civil and Administrative Tribunal (NCAT) if the dispute remains unresolved.
A claimant should not delay in seeking legal advice if they believe the insurer’s decision is not supported by the evidence or the law.
A Realistic Example: How a TBI Claim Might Be Assessed
Example: A 34-year-old cyclist in Sydney was struck by a car at a roundabout in February 2025. The impact caused a concussion and post-traumatic headaches. The claimant reported ongoing memory issues and mood swings. Medical records from a neurologist and neuropsychologist confirmed a moderate TBI with a WPI of 12%. The claimant had not returned to full-time work and required ongoing therapy. The insurer initially declined damages, citing a lack of permanent functional change. After the claimant submitted updated test results and a rehabilitation plan, the insurer revised its position and offered a settlement that included weekly payments and treatment benefits.
This example illustrates how medical evidence, consistency in treatment, and timely documentation can influence insurer decisions. It also shows that a claim may be reconsidered when new or stronger evidence is provided.
Next Steps: Understanding Your Rights and Options
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