Am I entitled to receive weekly benefit if injured in motor vehicle accident

Jonathan Coyle
Tony Chow

In NSW the Motor Accident Injuries Act 2017 (the MAIA Act) is the legislation that covers the statutory benefits that are payable to those injured in a motor vehicle accident.

If you are unable to work because of your injuries caused by the vehicle accident, you will receive statutory weekly benefits from the CTP insurer for partial or total losses of earnings.

If however the motor accident was caused wholly or mostly by the fault of the injured person or your injury is determined to be a minor injury by the CTP insurer, your weekly benefits payment will cease after 26 weeks regardless of you continue suffering from loss of earnings. If you are found to be contributorily negligent your weekly benefits payment will also be impacted.

How to determine the amount of statutory weekly payment

You will receive 95% of your pre-accident weekly earnings (PAWE) for the first 13 weeks after the accident and then 80% of PAWE between week 14 and week 78 if you still suffer total loss of earning capacity.

In calculating PAWE you must first satisfy that you, by definition, are an earner under schedule 1, clause (2) of the MAIA Act. The amount of PAWE is generally determined by the weekly average of the gross earnings received by you as an earner during the 12 months immediately before the day on which the motor accident occurred subject to exceptions.

In Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481, the claimant was injured in a motor vehicle accident on 24 October 2020. The claimant had been employed from 23 October 2019 to 10 May 2020 (29 weeks) over which he received gross earnings of $24,062. The claimant was unemployed from 11 May 2020 to 23 October 2020. The issue of the case centred on the calculation of the claimant’s PAWE. By construing the relevant provisions of MAIA Act his honour Harrison ASJ held that in this instance the correct PAWE should be calculated by taking the claimant’s earnings over the whole of 12-month period immediately before the day of the accident and dividing it by 52 reflecting the number of weeks during the whole 12-month period. As the result, the claimant’s PAWE should be $462.73 rather than $829.72.

The CTP insurer can make a mistake calculating your PAWE. If you have difficulties with any aspect of your CTP claim please contact our office on 02 8355 9999.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*

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Jonathan Coyle
Founding Partner
Tony Chow


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Further reading .

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