If you are injured in a motor vehicle accident, the Motor Vehicle Accident Injuries Act 2017 regulates the benefits that you are entitled to receive if the accident happened in New South Wales.

That compensation is divided into two types:

  1. Statutory Benefits; and
  2. Damages.

This article deals with statutory benefits.

Statutory benefits include:

  • Funeral expenses to cover those who die as a result of the motor vehicle accident.
  • Loss of income if you are injured as a result of the motor vehicle accident and can’t work.
  • Medical treatment and care to assist your recovery.

Statutory benefits are payable if the accident happens in New South Wales, irrespective of fault, however the payments will only continue after six months in the event that the injuries you have suffered are not minor and you were not mainly at fault.

WHO ISN’T ELIGIBLE FOR STATUTORY BENEFITS?

Statutory benefits are not payable if:

    1. The accident happened at work and you are receiving workers’ compensation payments; or
    2. You were injured while guilty of a serious driving offence; or
    3. If you were living outside Australia, some of the payments that you receive will be restricted.

You will only receive benefits for wage loss while living outside Australia if the Personal Injury Commission determines that your loss of earnings is likely to be permanent. 

If you are living outside Australia, your medical expenses are only payable if you are an Australian citizen or permanent resident.

I AM ELIGIBLE FOR STATUTORY BENEFITS, WHO WILL PAY ME?

You can make a claim on any one of the licenced insurers and that insurer will pay you benefits. It is usually preferable, however, that you make a claim on the insurer of the vehicle that was at fault in the accident.

STATUTORY BENEFITS FOR FUNERAL EXPENSES

Where a motor vehicle accident results in a death, the insurer will pay reasonable funeral expenses. The insurer’s liability includes reasonable transportation costs for returning home or to a place of body preparation.

MINIMUM STATUTORY BENEFITS FOR INCOME LOSS

LOSS OF INCOME

You are not entitled to payments for 26 weeks after the accident if:

    1. You were wholly or mostly at fault; or
    2. You suffered minor injuries; or
    3. You are of retirement age (Retriable age is determined by the Social Security Act 1991 Cth)

If the accident happens before you reach retirement age,  benefits will stop one year after your date of retirement. If the accident happens on or after reaching retirement age, benefits for loss of income or earning capacity are only available for 12 months.

LOSS OF INCOME

You are entitled to compensation if you suffer a total or partial loss of earnings as a result of the accident. There are three entitlement periods in which you may be eligible to receive payment.

(I) FIRST ENTITLEMENT PERIOD

STARTS:

  Day after motor accident.

ENDS:

  13 weeks from that day.

 You are entitled if:

  1. You are an earner and have:
    • Suffered partial loss of earnings as a result of injury in a motor vehicle accident
    • Suffered total loss of earnings as a result of injury in a motor vehicle accident

The exact payment will depend on what you earn. The benefits in the first entitlement period are to be at a rate of 95% of the difference between your pre-accident weekly earnings and your post-accident earning capacity (if any).

For example:

Pre-accident

Post-accident

Difference

Benefits payable

RULE

A – B = C

C ÷ 95% = D

$100 per week

$20 per week

$80

$76 per week

A

B

C

D

(II) SECOND ENTITLEMENT PERIOD

STARTS:

Day after the end of first entitlement period

ENDS:

78 weeks from that day.

You are entitled if:

  1. You are an earner and have:
    • Suffered partial loss of earnings as a result of injury in motor vehicle accident
      or
    • Suffered total loss of earnings as a result of injury in motor vehicle accident

Again, the exact payment will depend on what you earn. The benefits in the first entitlement period are to be at a rate of either 80% or 85% depending on your earning capacity.

  1. Total loss of earning capacity = 80% of the difference between your pre-accident weekly earnings and your post-accident earning capacity (if any) after the first entitlement period
  2. Partial loss of earning capacity = 85% of the difference between your pre-accident weekly earnings and your post-accident earning capacity (if any) after the first entitlement period

For example:

Pre-accident

Post-accident

Difference

Benefits payable

TOTAL LOSS

RULE

A – B = C

C ÷ 80% = D

$100 per week

$0 per week

$100

$80 per week

A

B

C

D

 

Pre-accident

Post-accident

Difference

Benefits payable

PARTIAL LOSS

RULE

A – B = C

C ÷ 85% = D

$100 per week

$20 per week

$80

$68 per week

A

B

C

D

AFTER THE SECOND ENTITLEMENT PERIOD 

STARTS:

  Day after the end of second entitlement period

You are entitled if:

  1. You are:
    • 18 years of age*; 
    • under 18 years of age* and an earner;   

AND

          • Suffered partial loss of earnings as a result of injury in motor vehicle accident
          • Suffered total loss of earnings as a result of injury in motor vehicle accident

Payments after the second entitlement period are determined by your age at the end of the second entitlement period – not the date of motor vehicle accident.

The rate of payments is the same as the previous entitlement period (80% Total loss, 85% Partial loss)

TERMINATION OF LOSS OF INCOME BENEFITS

You are not entitled to payments for loss of earnings or capacity that occurs more than the maximum period after the motor accident occurred.

The maximum period is:

    1. 104 weeks – unless pending claim for damages
    2. 156 weeks – if injury is less than 10% WPI
    3. 260 weeks – if injury is over the 10% WPI threshold

If your pending claim for damages is withdrawn/settled/determined – the payment period ends at 104 weeks.

TREATMENT & CARE

If you are injured in a motor vehicle accident you may be entitled to payment for medical treatment and care, that includes:

    1. Reasonable cost of your medical treatment and care; and
    2. Reasonable and necessary travel and accommodation expenses you incur to obtain treatment; or
    3. If you require travel assistance or are under the age of 18, the reasonable and necessary travel and accommodation expenses that are incurred by the parent or carer to help you obtain treatment.

You are not entitled to ask the insurer to pay for any medical expenses or care if they have already been paid by another insurer or are covered under a bulk billing arrangement.

TREATMENT & CARE

You are not entitled to medical, rehabilitation and care payments for 26 weeks after the accident if:

    1. You were wholly or mostly at fault, and you are over the age of 16 years at the time of accident; or
    2. You suffered minor injuries.

Domestic Care

No compensation is payable for gratuitous domestic assistance under the new scheme.

You are entitled to receive statutory benefits if you employ a person to provide domestic services, but only if:

    1. You provided the services to your dependent before the motor vehicle accident; and
    2. The dependants are not capable of performing the services themselves; and
    3. There is a reasonable expectation that if it was not for the accident, the services would have been provided for more than 6 hours per week and for a period of more than 6 months; and
    4. There is a need for the services to be provided.