Traumatic Brain Injury Claims: How NSW CTP Insurers Assess Liability

How NSW CTP Insurers Evaluate Liability for Traumatic Brain Injuries

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 among the most serious injuries under NSW Compulsory Third Party (CTP) insurance. Insurers assess liability by examining fault, the nature of the injury, and the claimant’s circumstances. This article explains the practical process insurers use to evaluate claims involving TBIs, based on NSW law and SIRA guidelines.

Key Factors in Liability Assessments

NSW CTP insurers evaluate liability by considering:

• Fault: Whether the accident involved a motor vehicle, as CTP covers all drivers regardless of fault, except in specific cases like intoxication or deliberate harm.
• Nature of the injury: TBIs are classified under the Motor Accident Guidelines as serious injuries requiring medical evidence of neurological damage. Insurers assess whether the injury meets the threshold for benefits.
• Evidence: Medical records, accident reports, and witness statements are critical. For example, a CT scan showing brain swelling or a doctor’s note about cognitive impairment strengthens a claim.
• Contributory fault: While CTP typically covers all drivers, insurers may reduce payments if the claimant contributed to the accident (e.g., jaywalking or failing to wear a seatbelt).

How Insurers Determine Fault in TBI Cases

Under NSW CTP laws, fault is determined by whether the accident involved a motor vehicle. However, insurers may still assess the driver’s actions to determine the extent of liability. For example:

• If a driver was speeding or ran a red light, the insurer may allocate a higher percentage of fault.
• If the claimant was a pedestrian or cyclist, the insurer may consider whether they followed traffic rules.

Insurers also check for threshold injuries under the Motor Accident Injuries Act 2017. A TBI typically qualifies as a threshold injury, entitling the claimant to treatment benefits, weekly payments, and long-term support.

Practical Steps for Claimants

To challenge an insurer’s assessment, claimants should:

1. Document the accident: Obtain a police report, witness statements, and photographs of the scene.
2. Seek immediate medical attention: A doctor’s report confirming the TBI is essential. For example, a neurologist’s diagnosis of a concussion or brain bleed strengthens the claim.
3. Notify the insurer: Submit a claim within six months of the accident, as per the Motor Accident Injuries Act 2017.
4. Request a review: If the insurer denies or limits benefits, claimants can apply for a review by the NSW Civil and Administrative Tribunal (NCAT).

Time Limits and Dispute Options

CTP claims must be filed within six months of the accident. If the claimant misses this deadline, they may lose the right to benefits. For disputes, claimants can:

• Apply to NCAT for a review of the insurer’s decision.
• Seek legal advice if the insurer refuses to pay for long-term care or rehabilitation.

Example: How an Insurer Might Assess a TBI Claim

Imagine a cyclist hit by a car at night. The insurer would:

1. Verify the accident involved a motor vehicle.
2. Review medical records showing a TBI, such as a CT scan or MRI.
3. Determine fault based on traffic camera footage or witness accounts.
4. Calculate benefits, including weekly payments for 52 weeks if the injury is a threshold injury.

When to Seek Legal Advice

Claimants should consult a lawyer if:

• The insurer denies the claim without a valid reason.
• The claimant requires long-term care or has a severe TBI.
• The claimant is unsure whether the injury qualifies as a threshold injury.

Next Steps

CTP insurers assess liability based on fault, injury severity, and evidence. If you believe your claim has been unfairly evaluated, seek legal advice to explore options for review or dispute. Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.