How Insurers Evaluate Liability for Traumatic Brain Injury Claims
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).
Traumatic brain injuries (TBIs) are a serious type of injury under NSW Compulsory Third Party (CTP) laws. Insurers assess liability by determining whether the injury meets the legal definition of a 'threshold injury' under the Motor Accident Injuries Act 2017 (MAIA) and whether the claimant has suffered a 'whole person impairment' as defined by SIRA guidelines. This process involves evaluating medical evidence, the nature of the accident, and whether the injury is directly caused by the motor vehicle incident.
Key Factors in Liability Assessment
Insurers consider several factors when assessing liability for TBI claims:
- Nature of the injury: TBIs must meet the spinal nerve-root qualification outlined in SIRA's Motor Accident Guidelines. This includes neurological signs beyond radiculopathy.
- Fault and causation: Insurers must establish that the TBI resulted from a motor vehicle accident. Fault is determined based on the accident circumstances, not the claimant's actions.
- Medical evidence: Detailed medical records, including imaging and specialist reports, are essential to prove the injury's severity and link it to the accident.
- SIRA guidelines: SIRA's assessment tools for threshold injuries and whole person impairment guide insurers in determining the type of benefits available.
Evidence That Matters for TBI Claims
Claimants should gather the following evidence to support their TBI claim:
- Medical documentation: Include MRI/CT scans, neurological assessments, and reports from neurologists or trauma specialists.
- Accident report: Obtain a police report or incident report from the scene, including details of the collision and vehicle involvement.
- Witness statements: Statements from witnesses can help establish fault and the circumstances of the accident.
- Photographs: Document the accident scene, vehicle damage, and any visible injuries.
- Income records: Show how the TBI has affected the claimant's ability to work, as this impacts weekly income benefits.
Challenges in Proving TBI Liability
Proving liability for TBIs can be complex because:
- Subjective symptoms: TBI symptoms like memory loss or cognitive impairment may not be immediately visible, requiring specialist medical evidence.
- Threshold injury rules: Under MAIA, only injuries meeting the threshold definition qualify for statutory benefits. If the injury is below this threshold, claimants may need to pursue a common law damages claim.
- Time limits: Benefits for threshold injuries are generally limited to 52 weeks. After this period, claimants may need to rely on other support mechanisms.
Practical Steps for Claimants
If you've suffered a TBI in a motor vehicle accident in NSW, take these steps:
- Seek immediate medical attention to document the injury.
- Report the accident to the police and the relevant insurer.
- Collect all relevant evidence, including medical records and witness statements.
- Consult SIRA's guidelines to understand your entitlements under the MAIA.
- Consider independent legal advice if your claim is disputed or if you need to pursue a common law damages claim.
When to Seek Legal Advice
Insurers may dispute liability or challenge the severity of a TBI. If you're unsure whether your claim meets the legal criteria for benefits or damages, it's important to seek legal advice. A solicitor can help you understand your options under the MAIA and ensure you meet all procedural requirements.
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.