A review of the ‘minor injury’ definition in the Motor Accident Injuries Act 2017

The Motor Accident Injuries Act 2017 came into effect in 2017 and impacts upon all motor vehicle accidents in NSW occurring on or after 1 December 2017. Under the new scheme, many injured people are deemed to have sustained a ‘minor injury’.

The question of whether someone has sustained a minor injury is relevant to the determination of the persons’ entitlement to claim damages and to income and medical treatment beyond 6 months from the date of injury.

So what is a ‘minor injury’ under the scheme? The 2017 Act provides that a ‘minor injury’ is a soft tissue injury or minor psychological or psychiatric injury.

The Act defines a soft tissue injury as follows:

“ an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

The Act provides that a minor psychological or psychiatric injury is defined as an injury which “is not a recognised psychiatric illness”.

The definition is also instructed by the 2017 Regulations. The test tends to focus on how to objectively diagnose the injury as opposed to considering the impact caused to the individual as a result of the injury.

If an injured person has more than one injury and at least one of injuries is not a minor injury, they will avoid the ‘minor injury’ category. In other words, if someone has sustained soft tissue injuries and also a broken bone, the injuries as a whole will be considered non-minor.

Ultimately it is the CTP insurer who makes the decision as to whether a person has sustained a ‘minor injury’ and this decision must be made at 3 months from the date that a claim is made. If a person receives a notice that they have a ‘minor injury’, they can request an internal review from the insurer but this must be made within 28 days. Requesting a review is a mandatory first step in challenging a ‘minor injury’ decision.

If the ‘minor injury’ determination is upheld by the insurer, the injured person can lodge an application the Dispute Resolution Service (“DRS”) within 28 days from the earlier date of either receipt of the insurers internal review decision or the due date of that decision.

The DRS will then refer the matter to a medical assessor. The medical assessor will issue a Certificate as to whether the injury is minor and the findings of this assessor are binding. There are appeal rights however these are limited.

If there is a deterioration in the condition or new evidence becomes available that supports the submission that the injury it not minor, it may be possible for the injured person to undergo a further medical assessment. It should be noted that only one further medical assessment is available.

The new scheme will have been in place for two years this coming December.

This month the State Insurance Regulatory Authority (“SIRA”) announced that they will be conducting a review of the ‘minor injury’ definition against the objectives of the Act. They are seeking feedback from people and organisations who have been directly involved with the CTP scheme since is commenced in December 2017.

Further details on the consulting process can be found at www.sira.nsw.gov.au.