CTP Damages Claims in NSW: The Lump Sum Explained

Statutory benefits support you while you recover. A common law damages claim is different: it is a claim for a lump sum that compensates for the lasting financial effect of your injuries and, in more serious cases, for pain and suffering. You can have both in the same claim, one after the other. See statutory benefits vs damages.

Who can make a damages claim

You may be able to claim common law damages if all three of these apply:

• Another driver was at fault, wholly or partly.
• You were not mostly at fault. 'Mostly at fault' means your contributory negligence is found to be greater than 61%.
• Your injury is more than a threshold injury. Threshold injuries are generally soft tissue injuries and threshold psychological injuries.

What a damages claim can include

Damages in the NSW CTP scheme are narrower than many people expect. They are built from these heads of damage:

• Past economic loss: earnings you have lost from the accident up to settlement, allowing for weekly payments already received.
• Future economic loss: the effect of the injury on your ability to earn in the future, for example if you can't return to your trade, have to reduce hours or have to change careers.
• Non-economic loss: compensation for pain and suffering and loss of enjoyment of life. This is only available if your whole person impairment (WPI) is more than 10%.

What a damages claim generally does not include

Common law damages in the CTP scheme generally do not include treatment and care costs, or unpaid care provided by family and friends. Treatment and care continues through statutory benefits instead. That is a key difference from the older scheme and from many other kinds of injury claim.

The 10% whole person impairment line

Whole person impairment is a percentage that measures the permanent effect of your injuries, assessed under the scheme's guidelines. It matters for damages in three ways: whether you can claim for pain and suffering at all, whether you can claim before 20 months, and how long weekly payments can continue while your claim is pending. Physical and psychological injuries are generally assessed separately. See whole person impairment.

If the insurer disagrees with your WPI assessment, that disagreement can be taken to the Personal Injury Commission for an independent medical assessment.

Timing: the dates that matter

The waiting period exists for a reason. Future economic loss is usually the largest part of a damages claim, and it can only be valued properly once your injuries have stabilised and the long-term picture is clear. See CTP claim time limits.

• 20 months after the accident: generally the earliest you can make a damages claim, unless your WPI is assessed as more than 10%.
• 2 years after the accident: lodge by then if you want weekly payments to continue beyond 2 years. A claim generally can't be settled before 2 years unless WPI is more than 10%.
• 3 years after the accident: a damages claim must generally be made within this time.

How a damages claim runs

The claim is made on the prescribed claim for damages form and lodged with the insurer. Both sides then gather evidence: medical reports, a WPI assessment where relevant, earnings records, and evidence about your work prospects. The insurer may make an offer, and there is usually negotiation, often at a settlement conference.

If the claim can't be settled, it can go to the Personal Injury Commission for assessment. Court proceedings are possible only in limited circumstances. Most damages claims settle. See CTP settlements.

If you were partly at fault

If you contributed to the accident or your injuries but were not mostly at fault, damages are generally reduced to reflect your share of responsibility. Common examples are speeding, not wearing a seatbelt or helmet, or travelling with a driver you knew was affected by alcohol. See at fault vs not at fault.

When to talk to a lawyer

Damages claims are where most people benefit from legal advice. The rules are technical, the evidence is expert-heavy and the result is usually final. Talk to an independent CTP lawyer if:

• Your injury is more than a threshold injury and someone else was at fault.
• You are approaching the 2-year date and want to protect your weekly payments.
• The insurer disputes your WPI, your fault or your earnings.
• You have received, or expect, a settlement offer.