Under the Motor Accident Injuries Act 2017 (NSW) (the Act), injured persons are entitled to statutory benefits for the first 52 weeks following a motor vehicle accident, regardless of fault. However, to continue receiving benefits beyond this period, there are two key conditions that must be satisfied in accordance with Section 3.28 of the Act as follows:
- The injured person, over the age of 16 at the time of the accident, must not have been wholly or mostly at fault for the accident, and
- The injuries sustained as a result of the motor vehicle accident must not be classified as a threshold injury.1
Background
Our client was injured in a motor vehicle accident in NSW as a passenger on a public bus and lodged a Compulsory Third Party (CTP) claim under the Act. As a result of the accident, they sustained injury to their neck, throat, knees as well as psychological injury. Initially, the insurer determined their injuries were threshold injuries, limiting our client’s entitlement to statutory benefits to the first 52 weeks post-accident. This determination also precluded any potential claim for common law damages.
Following a detailed review of the medical evidence and a strategic legal approach, we were able to successfully overturn the insurer’s decision through an internal review, securing our client’s eligibility for ongoing benefits and opening the door to a damages claim.
Threshold Injury: Legal Definition
Section 1.6 of the Act broadly defines threshold injury as one or more of the following:
- A soft tissue injury,
- A psychological or psychiatric injury that is not a recognized psychiatric illness. 2
Internal Review to Dispute an Insurer’s Decision
When an insurer issues a liability notice for benefits after 52 weeks, disputing the continuation of benefits, the claimant has an opportunity to request an internal review of the decision. The insurer must make a determination within 14 days of receiving an application.
In our client’s case, the insurer conceded that our client was not wholly or mostly at fault for the accident. However, they determined that the injuries sustained were threshold injury, which would limit entitlement to benefits beyond 52 weeks.
Upon reviewing our client’s medical records, we noted that their treating psychologist had diagnosed them with a psychiatric illness which does not fall within the threshold injury definition. We prepared and submitted detailed legal submissions, supported by the psychologist’s diagnosis, treatment notes and other medical evidence, to challenge the insurer’s decision.
Following the internal review, the insurer overturned its initial decision, granting our client access to post 52 week statutory benefits and enabling a potential claim for common law damages.
Conclusion
This case highlights the importance of accurate medical documentation, strategic legal advocacy and timely internal reviews in securing fair outcomes for injured clients under the NSW CTP scheme.
If you or someone you know has had a threshold injury finding and believe it may be incorrect, please contact our firm for legal assistance or further information. For comprehensive legal support and information about our services, please reach out to our team or visit our website.
1Motor Accident Injuries Act 2017 (NSW) s 3.28.
2Motor Accident Injuries Act 2017 (NSW) s 1.6
