Statutory Benefits vs Common Law Damages — What's the Difference?

The NSW CTP scheme runs two largely separate tracks, and understanding the difference between them clears up most of the confusion people have about what they can claim.

Statutory benefits — the safety net

Statutory benefits are the scheme's built-in support: weekly payments if you can't work, and funding for reasonable and necessary treatment and care. Most injured people can access statutory benefits regardless of who was at fault, though for accidents on or after 1 April 2023 they generally stop after 52 weeks if you were wholly or mostly at fault (contributory negligence greater than 61%).

• Available to most injured people, largely regardless of fault.
• Covers weekly payments and treatment and care costs.
• For threshold injuries, generally available for up to 52 weeks for accidents on or after 1 April 2023 (26 weeks for accidents between 1 December 2017 and 31 March 2023).
• Weekly payments generally stop after 104 weeks unless a damages claim is pending.
• Claim early — within 28 days for back-paid weekly payments, and generally within 3 months at the outside.

Common law damages — the lump sum track

Common law damages are a separate, one-off claim for compensation — potentially including pain and suffering and past and future economic loss. They're not automatic, and not everyone is eligible.

• Generally only available if you weren't mostly at fault, and your injury is above the threshold injury classification.
• Pain and suffering (non-economic loss) requires whole person impairment above 10%.
• Economic loss doesn't need WPI above 10%, but does need a non-threshold injury and that you weren't mostly at fault.
• Generally doesn't cover treatment and care costs or gratuitous (unpaid) care from family and friends — treatment and care continues through statutory benefits instead.
• Generally can't be made until 20 months after the accident, unless WPI is assessed above 10%.
• Must generally be made within 3 years of the accident.

Can you access both?

Yes — for many injured people, statutory benefits fund treatment and income support while their injury is assessed, and a damages claim (if they're eligible) is pursued separately, often overlapping in time. Lodging a damages claim within 2 years of the accident is also what keeps weekly payments running beyond the usual 104-week cut-off, up to 156 or 260 weeks depending on WPI.

Why the distinction matters practically

People sometimes assume that because their statutory benefits claim was straightforward, a damages claim will be too — or the reverse, that being refused something under statutory benefits means they have no claim at all. Neither follows automatically. They're assessed under different tests, with different time limits, and it's entirely possible to have a strong claim on one track and no eligibility on the other.

A simple way to think about it

Statutory benefits ask, broadly: “what does this person need to recover and get by while they're injured?” Common law damages ask a different question: “how much has this person genuinely lost, financially and otherwise, because of a serious injury someone else caused?” Keeping those two questions separate in your head makes it much easier to understand why an insurer might approve ongoing physiotherapy under statutory benefits while, at the same time, telling you a damages claim isn't available because your injury is classified as threshold.

Legal costs differ between the two tracks

It's also worth knowing that legal costs work differently on each track. Statutory benefits disputes have their own regulated cost recovery rules, often more limited than damages claims, while common law damages claims are where no win, no fee arrangements are most commonly offered. See our guide to CTP lawyer costs for the detail on each.