CTP Scheme and What NSW CTP Scheme Mean for Your CTP Claim

Changes to NSW’s compulsory third party (CTP) scheme were passed by the state parliament in November 2022 which may affect aspects of your motor vehicle accident claim.

In this article, we’ll outline the key changes introduced by the Motor Accident Injuries Amendment Act 2022, which amended the NSW Motor Accident Injuries Act 2017 (MAIA). The amendments to the scheme apply to claims for accidents that occurred on or after December 1, 2017, to disputes about statutory benefits and damage assessments, and to proceedings pending before a merit reviewer, medical assessor claims assessor, or a court.

One exception to the above is where an insurer has made a determination that an injured person’s whole person impairment (WPI) is not in excess of 10 percent prior to November 28, 2022 – in this case, an internal review is still required before any dispute can be referred to the Personal Injury Commission (PIC).

What are the changes for current and future personal injury clients?

Below is a summary of the recent changes to the NSW CTP claims scheme:

Nominal Defendant liability in statutory benefits claims: In accident claims involving uninsured or unidentified vehicles, the Nominal Defendant will be liable in statutory benefits claims, in the same way, it is liable in common law damages claims.

Change to ‘minor Injuries’ terminology: Under the amendment, minor injuries will now be termed ‘threshold injuries’. In the current scheme, ‘soft tissue’ injuries, and psychological or psychiatric injuries that are not recognised as psychiatric illness were termed ‘minor injuries’. The latter term had been viewed as understating the impact and significance of such injuries on the victim and causing them unnecessary distress. Despite the change in terminology, in essence, the definition of the injury remains the same. This change comes into effect on April 1, 2023.

Minor psychiatric injuries: A threshold psychiatric injury will be redefined to mean ‘a psychological or psychiatric injury that is not a recognised psychiatric illness. This change comes into effect April 1, 2023.

Cessation of statutory benefits: A significant change to the scheme will be that a person who is injured in a motor vehicle accident in NSW will be entitled to statutory benefits – irrespective of fault on their part, or a threshold injury – for 52 weeks from the date of accident, rather than the previous 26 weeks. The change is designed to provide expanded financial support to those injured in a motor vehicle accident to cover loss of earnings, treatment and care, until they can return to work and typical life activities. This change comes into effect April 1, 2023 and applies only to motor vehicle accidents which occur after commencement

Reduction of weekly payments for contributory negligence: In incidents where the injured person is found to be partially at fault (the legal term for which is ‘contributory negligence’) for the accident – but not to a percentage over 61 per cent – weekly statutory benefits may only be reduced for the contributory negligence after 52 weeks from the date of accident, rather than the current 26 weeks. This change comes into effect April 1, 2023 and applies only to motor vehicle accidents which occur after commencement

Insurer’s second liability notice: An insurer’s second liability notice will now be due nine months after a CTP claim is made, rather than three months. This change comes into effect April 1, 2023 and applies only to motor vehicle accidents which occur after commencement.

Internal review of WPI determinations: At present where there is a dispute about the assessment of an injured person’s WPI – potentially affecting the benefits they are entitled to – the claimant must seek an internal review by the insurer of its decision before the dispute can be referred to the PIC for adjudication. Under the amendment, the injured person no longer needs to seek this internal review, allowing disputes about medical assessments to be more quickly resolved and the claim expedited. This change is now in force and applies to WPI determinations made after commencement.

Time limits on damages claims: Under section 6.14 of the Motor Accident Injuries Act 2017, a claim for damages cannot be made before the expiration of 20 months after the accident unless the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10 per cent. For those with a WPI assessed at less than 10 per cent, the requirement often leaves their claim in ‘limbo’ and delayed. The amendment removes the 20-month waiting period so that an injured person who sustains a ‘threshold injury’ can now lodge a damages claim at any time.

Additionally, the two-year moratorium on settling a common law claim is removed – previously parties were unable to resolve a claim within two years of the claim being lodged unless there was a concession of a greater than 10 per cent WPI.

Finally, the three-year time limit to commence a damages dispute in the Commission is removed and a claim can be made at any time but injured persons are still required to commence court proceedings in respect of their claim within three years of the accident occurring.

Uncertain? Seek expert legal advice For CTP Claim

The thrust of the changes to the NSW CTP scheme are in response to common complaints which arose about the operation of the scheme, particularly for those assessed as having suffered a ‘minor’ injury constituting a WPI less than 10 percent. The amendments seek to provide more consistency in accessing statutory benefits by accident victims and to help expedite CTP claims through the process with the insurers and the PIC.

If you need more information or guidance on anything discussed in this article, talk to our CTP compensation experts at Gajic Lawyers today. Our Parramatta personal injury Lawyers can help clarify how the changes in NSW apply to your accident claim.