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Compensation Entitlements & Legal Rights for International Tourists and Foreign Nationals Injured in Motor Accidents in NSW

16 July 2025
Compensation Entitlements & Legal Rights for International Tourists and Foreign Nationals Injured in Motor Accidents in NSW

Does Being Unable to Work Affect My Visa Status If I’m in Sponsored Employment?

With international borders long reopened and tourism again on the rise, our state continues to welcome visitors from across the globe. However, when these individuals suffer injury in a motor vehicle accident — either as pedestrians, passengers, or drivers — they often find themselves navigating a complex legal landscape with limited knowledge of their rights or access to support.

The Governing Legislation in NSW

In New South Wales, the Motor Accident Injuries Act 2017 (NSW) (MAIA) provides the statutory framework for individuals injured in motor vehicle accidents on or after 1 December 2017.

Entitlements are available to anyone injured in a motor vehicle accident in NSW, regardless of whether they are:

  • An Australian citizen,
  • A permanent or temporary visa holder, or
  • A short-term international tourist.

Section 3.1 of the MAIA provides that an injured person may be entitled to statutory benefits, including treatment and care expenses, income support, and, in some cases, damages.

Entitlements for Foreign Nationals and Tourists

Under the MAIA, an injured person may be eligible for:

  1. Statutory Benefits (First 52 weeks)
    • Medical and treatment expenses,
    • Weekly income support (if employed and earning income before the accident),
    • Domestic assistance (in limited cases).
  1. Extended Statutory Benefits (Beyond 52 weeks)

Entitlements continue beyond the first year if the injured person:

    • Was not wholly or mostly at fault,
    • Has a threshold injury that is not classified as ‘minor’ (i.e. not a soft tissue or psychological injury only).
  1. Common Law Damages

Foreign nationals may also pursue a common law damages claim where:

    • The accident was caused by the fault of another person, and
    • They sustained a non-minor injury.

Damages may be awarded for:

    • Non-economic loss (pain and suffering), and
    • Past and future loss of earnings.

Note: Tourists and foreign nationals are not excluded from these entitlements due to their residency status. The emphasis remains on fault and injury severity.

Challenges in Accessing Compensation

Despite statutory inclusion, foreign nationals face numerous practical and procedural challenges:

  1. Proof of Income

Income support entitlements require documentary evidence of pre-injury income. Tourists or international workers may have:

    • Inconsistent earnings,
    • Cash-in-hand jobs,
    • Limited or no Australian payslips or tax records.

In these instances, practitioner advocacy and corroborating evidence (such as contracts, bank statements, or employer letters) become essential.

All claimants under the MAIA bear and evidentiary onus to establish what their most likely circumstances was but for the accident in terms of earning capacity and indeed quantification of earnings but for the accident. For persons who do not have an established right to work in Australia, evidence as to earnings in the country of origin will be required in addition to evidence in relation to the availability of work.

  1. Language and Cultural Barriers

Many foreign claimants face difficulty:

    • Understanding the statutory framework,
    • Communicating with insurers,
    • Navigating the dispute resolution process.
  1. Medical Treatment Access

Tourists without Medicare may struggle to access immediate cost-effective medical treatment. Although treatment can be covered under the MAIA, delays and upfront expenses remain common.

  1. Return to Country of Origin

If you return to your home country — voluntarily or due to visa expiry — it will impact ongoing statutory claims. However, statutory benefits and damages claims can still be pursued while overseas, provided the insurer is kept informed and evidence is well managed.

Section 3.21 affects compensation rights in terms of statutory benefits for wage loss compensation.

Motor Accident Injuries Act 2017 – Sect 3.21

Weekly statutory benefits to persons residing outside Australia

3.21 Weekly statutory benefits to persons residing outside Australia

(1) An injured person who resides outside Australia is not entitled to receive any weekly payment of statutory benefits in respect of any period during which the person resides outside Australia, except as provided by this section when the loss of earning capacity is likely to be of a permanent nature.

The legislative requirement borrows from section 53 of the Workers Compensation Act 1987. Essentially, an incapacity for work is permanent if it is an incapacity that is lasting and likely (on the balance of probabilities) to be of an indefinite duration. It is not necessary for a finding that there will be a perpetual state of affairs that will continue for all time.

(2) An injured person residing outside Australia is entitled to receive on a quarterly basis, or at shorter intervals agreed by the insurer and injured person, the amount of the weekly payments accruing due during the preceding quarter if–

(a) the Commission or insurer has determined that the injured person’s loss of earning capacity is likely to be of a permanent nature, and

(b) the person establishes, in such manner and at such intervals as may be required by the Motor Accident Guidelines, the person’s identity and the continuance of the loss of earning capacity.

Section 3.33 of the MAIA affects compensation for persons residing outside of Australia in terms of access to funded treatment and care, in terms as follows:

Motor Accident Injuries Act 2017 – Sect 3.33

Treatment and care provided while persons residing outside Australia

3.33 Treatment and care provided while persons residing outside Australia

An injured person who is not an Australian citizen or a permanent resident of Australia is not entitled to statutory benefits under this Division in respect of treatment and care provided outside Australia.

Special Consideration: Does Being Unable to Work Affect My Visa Status If I’m in Sponsored Employment?

This question is particularly pressing for foreign nationals holding employer-sponsored visas, such as the subclass 482 Temporary Skill Shortage (TSS) visa.

Under this visa class, holders must:

  • Remain employed in their nominated position,
  • Work for their sponsor,
  • Cease work only for a limited period (generally 60 days).

If an individual is unable to work due to injury, several legal issues arise:

  1. Breach of Visa Conditions

Inability to work may technically breach visa conditions. However, the Department of Home Affairs may exercise discretion where the person is:

    • Temporarily unable to work due to injury,
    • Receiving compensation and treatment,
    • Making attempts to recover and return to work.
  1. Practical Advice for Clients

Clients in this position should:

    • Immediately inform their employer of their injury,
    • Provide medical certificates,
    • Seek legal advice on whether a bridging visa or alternative visa pathway may apply.
  1. Employer Responsibilities

Sponsors must comply with their obligations under immigration law. They may be cautious about retaining injured workers.

Practitioners may need to:

    • Liaise with immigration lawyers,
    • Obtain evidence of work incapacity,
    • Assist the client in communicating with the Department to avoid visa cancellation.

Can Injury Help Someone Remain in Australia?

In certain circumstances, suffering a serious injury may create a pathway for a foreign national to remain lawfully in Australia — though not automatically, and rarely through the personal injury system alone.

  1. Bridging Visas and Compassionate Grounds

If a person becomes incapacitated and can no longer meet their visa conditions (e.g. due to loss of employment), they may apply for a Bridging Visa E (subclass 050 or 051) to remain temporarily in Australia lawfully. These visas can be granted on compassionate grounds, such as:

    • Requiring ongoing medical treatment for a serious injury,
    • Being medically unfit to travel, or
    • Needing time to pursue legal claims.
  1. Health-Related Visa Pathways

In rare cases, the Department of Home Affairs may consider health-related visa extensions or changes, particularly where:

    • The person is awaiting or undergoing surgery,
    • Removal would result in serious health consequences, or
    • A treating physician supports the medical necessity of remaining in Australia.

Practitioners should assist clients by:

    • Gathering detailed medical evidence,
    • Seeking reports from treating specialists outlining prognosis and treatment plan,
    • Liaising with immigration lawyers to prepare visa submissions under health or hardship grounds.
    • Reviewing terms of any travel insurance policy.
  1. Limitations and Risks

Importantly:

    • There is no visa category solely for injured persons,
    • Any bridging or humanitarian-based stay is temporary,
    • Decisions are discretionary and often require comprehensive supporting documentation.

Nonetheless, injury-related incapacity may be considered a compassionate factor under migration policy and assist clients to lawfully remain in Australia while recovering or pursuing their legal entitlements.

Case Example

Consider the following case:

A 30-year-old French national on a working holiday visa is struck by a car while crossing a street in Sydney. She suffers a fractured leg, fractured wrist and requires a cervical fusion for her neck injury. She is unable to work in her hospitality role. She does not have Medicare coverage and has no Australian employer-provided sick leave.

Despite her status as a visitor, she is entitled to:

  • Statutory benefits for treatment and income loss,
  • Potential common law damages, if the driver is at fault,.

Working with an experienced legal team, she receives ongoing support and a settlement that compensates her pain and suffering , loss of income, and future loss of earning capacity. Her treating doctor also supports an application for a bridging visa, allowing her to stay for an additional six months to complete rehabilitation and settle her legal claim. Assessment of injuries by authorised medical examiners as listed by the State Insurance Regulatory Authority within Australia allow for relatively early resolution of the claim.

Conclusion

To conclude, international tourists and foreign nationals injured in NSW motor accidents are afforded the same core rights as residents under the Motor Accident Injuries Act. However, the complexity of their visa status, employment conditions, and cultural barriers means they are a vulnerable cohort requiring careful and strategic legal support.

It is our duty as personal injury practitioners to:

  • Proactively advise and educate these clients,
  • Collaborate across disciplines, and
  • Champion their entitlements.

With clear guidance, informed advocacy, and culturally competent representation, we can ensure fair and lawful outcomes — no matter a person’s origin or visa status.

BPC Lawyers are here to help. We’ll assess your claim, guide you through the process, and work to maximise your compensation.

Don’t leave your claim to chance—speak with our Sydney-based team today. Our Personal Injury Lawyers are recognised leaders in their field, with extensive experience across all claim types in NSW.