People injured on the road in NSW can claim compensation and a range of other benefits if they meet the eligibility criteria. From 1 April 2023, significant amendments to the Motor Accidents Injuries Act 2017 ("the Act"), which governs NSW road accident compensation, were introduced. These amendments change the way motor accidents are handled and the rights of injured persons.
Assessing your compensation and benefits after a motor vehicle accident is not always straightforward. It is strongly advised you obtain legal advice if you have been involved in a motor vehicle accident and suffered injury. A lawyer will guide you and help you determine the best course of action for your circumstances and advise you as to your rights.
Key changes to NSW motor vehicle accident compensation from 1 April 2023
Change in motor vehicle accident compensation terminology
Legislation governing motor vehicle accident compensation previously used language to describe different types of injuries that may be sustained in a road accident.
The terms were "minor" and "non-minor". Minor injuries were defined by the Act as:
"soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses".
The term "minor injury" has now been replaced with the new term "threshold injury". This has been done due to the fact the term "minor injury" was seen by many to trivialize an injury suffered by an individual and the impact upon them.
Change to entitlements to weekly payments and medical treatment
Previously, a person who was found to have sustained a minor injury (now called a "threshold injury") or was deemed to be wholly or mostly at fault for a motor vehicle accident was only entitled to receive 26 weeks of weekly payments and medical treatment.
With the changes, regardless of fault, all "threshold injury" claimants are now entitled to statutory benefits (weekly wage loss payments and medical expenses) for a maximum period of 52 weeks from the date of accident. This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date.
Reduction of weekly payments for contributory negligence
In incidents where a person has been found to be partially at fault ("contributory negligence") for the accident but not to a percentage of over 61%, weekly statutory benefits may only be reduced for the contributory negligence after 52 weeks from the date of accident (rather than the previous 26 weeks).
This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date.
Threshold requirements
Threshold requirements that were previously applicable to bring a claim for damages (ie, a common law claim due to the negligence of another person) against the nominal defendant (i.e., where the at-fault driver cannot be found or identified), now also apply to a statutory benefits claim.
The nominal insurer will also be liable in common law damages claims in the same way. Where a vehicle is interstate registered, uninsured or unidentified, a person can make a claim through the nominal defendant, which means they do not go without adequate treatment or compensation.
Time frames for the insurer to make a decision
Previously, the insurer had to make a decision regarding a "threshold injury" within three months. This decision is now due in nine months.
This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date.
Changes to the insurer's internal review process
A claimant is no longer required to seek an internal review from the insurer prior to lodging a medical dispute to determine the degree of permanent impairment (for lump sum payment claims). This will assist in speeding up the claims process and the resolution of medical disputes surrounding permanent impairment.
However, where an insurer has communicated its decision, prior to 28 November 2022, not to concede an injured person's whole person impairment is greater than 10% (the minimum requirement for permanent impairment claims), then an internal review must still be undertaken before the matter can be referred for medical assessment.
Claims for modified common law damages
A claimant is no longer required to wait 20 months to make a motor vehicle accident common law claim (a claim due to the negligence of another party/driver).
Section 6.23(1) of the Act has been removed, which will now enable parties to resolve claims for common law damages at any time. In the past, parties were unable to resolve a claim within 2 years of a claim being lodged unless there was a concession by the insurer of the claimant exceeding 10% whole person impairment.
The above does not remove the operation of section 6.32 of the Act, where an injured person is required to commence court proceedings in respect of their claim within three (3 years) from the date of the motor vehicle accident or within three (3) years from the date of death arising from the motor vehicle accident.
Common law claims due to a motor vehicle accident are usually particularly complicated. Your lawyer will provide you with advice as to the lodgment of a claim for common law damages.
Get help from a motor vehicle accident compensation lawyer in NSW
The above key changes to motor vehicle accident compensation in NSW are by no means the only changes made to the Act. The NSW CTP (no-fault) scheme is complex and being aware of all the requirements is difficult. If you have suffered an injury, it is highly recommended that you seek the advice of an experienced personal injury lawyer to ensure you receive all benefits you are entitled to in a timely manner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
