How NSW Insurers Evaluate 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).
If you've suffered a traumatic brain injury (TBI) in a motor vehicle accident in NSW, insurers assess your claim based on the accident's circumstances, the nature of your injury, and the evidence you provide. Under the NSW Compulsory Third Party (CTP) scheme, insurers must determine whether your injury meets the legal definition of a 'threshold injury' and whether your claim falls within the scheme's coverage.
Key Factors in Liability Assessment
Insurers evaluate liability by considering:
- The accident's cause: Whether the accident involved a motor vehicle and whether the claimant was a driver, passenger, pedestrian, cyclist, or motorcyclist.
- Medical evidence: Doctors must confirm your injury meets the Motor Accident Guidelines' criteria for a threshold injury, including neurological signs like impaired coordination or memory loss.
- Injury severity: Traumatic brain injuries are classified as threshold injuries, which have specific clinical requirements under the Motor Accident Guidelines. Insurers may dispute whether your injury qualifies.
- Fault and contributory negligence: While CTP covers most accidents, insurers may reduce benefits if your injury resulted from pre-existing conditions or your own actions.
Practical Steps for Claimants
To support your claim, gather:
- Medical records: Detailed documentation of your TBI diagnosis, treatment, and recovery progress.
- Accident reports: Police reports, witness statements, and photographs of the scene.
- Income records: Proof of lost wages or reduced earning capacity.
- Insurer correspondence: Keep copies of all communications with the at-fault driver's insurer.
A hypothetical example: Sarah, a pedestrian on the Central Coast, suffered a TBI after being hit by a car. Her doctor confirmed the injury met the threshold criteria, and SIRA approved her claim for weekly benefits and treatment costs. However, the insurer disputed the severity of her injury, requiring further medical evidence.
Time Limits and Dispute Resolution
You have 52 weeks from the accident date to claim weekly benefits if your injury is classified as a threshold injury. After this period, benefits may stop unless your injury is later reclassified as a 'serious injury' under the Motor Accident Injuries Act 2017.
If your claim is disputed, you may:
- Request a review by the insurer.
- Seek mediation through the NSW Civil and Administrative Tribunal (NCAT).
- Consult a solicitor to challenge the insurer's decision.
When to Seek Legal Advice
Contact a legal professional if:
- Your injury is not classified as a threshold injury.
- You believe your claim has been unfairly denied.
- You need assistance navigating the SIRA assessment process.
Next Steps
CTP claims depend on the accident date, injury type, and evidence provided. To request contact about your circumstances, complete the quick, no obligation enquiry form.