Employer contribution loss
Can superannuation loss be included in NSW CTP damages?
It can form part of economic loss, but it is calculated under the statutory rule
Section 4.6 of the Motor Accident Injuries Act allows damages for loss of employer superannuation contributions as a percentage of the damages awarded for loss of earnings, using the minimum percentage required by law for the relevant period. It is not an extra percentage applied to the whole settlement and should not be based automatically on the claimant's current contribution rate. The earnings-loss periods, employment arrangement, statutory rate changes and any contributions actually received must be checked.
Superannuation loss follows the supported earnings loss. If no past or future loss of earnings is proved for a period, there is usually no employer-contribution loss to attach to that period. The claim should therefore start with the earnings schedule, not with a standalone superannuation estimate.
The statutory minimum has changed over time and employment arrangements can differ. Some employers pay above the minimum, some remuneration packages include contributions in a stated total, and self-employed people may not have employer contributions at all. Do not hard-code one rate across every year or claimant.
Reviewed by Herman Chan, Stephen Young Lawyers
How section 4.6 approaches superannuation loss
The Act links employer superannuation damages to the award for loss of earnings. It identifies the relevant percentage by reference to the minimum contribution required by Commonwealth law. This keeps the calculation tied to the compensable earnings loss rather than the account balance or investment return.
Separate the past and future periods because the applicable minimum may change. Record the contribution rate used for each period and the source date. If a proposed settlement schedule uses one blended rate, ask for the assumptions and check whether it accurately reflects the periods claimed.
Investment performance, fees and personal voluntary contributions are different matters. A reduced account balance alone does not show the statutory damages calculation. The legal question is the accident-caused loss of employer contributions attached to compensable earnings loss.
Employment arrangements can change the evidence
For employees, payslips, employment contracts and super fund statements can show ordinary employer contributions and any periods of reduced payment. Salary-packaging documents may be necessary where remuneration is expressed as a total package.
A claimant with multiple jobs may have contributions from more than one employer. Each job and loss period should be reconciled. Casual work can still attract employer contributions where the legal requirements were met, but variable earnings must first be proved.
A sole trader or business owner may make personal contributions rather than receive employer contributions. Section 4.6 is directed to employer superannuation loss, so the business structure and legal basis of any claimed loss require individual analysis. Do not relabel a voluntary personal contribution as employer loss.
Present a transparent superannuation schedule
Begin with the accepted or claimed earnings loss for each period. Apply the legally relevant minimum percentage and show any actual employer contribution that offsets the loss. Keep the source for every rate and do not apply the percentage to non-economic loss, treatment benefits or the whole lump sum.
For future loss, the underlying earnings assumptions are first adjusted under section 4.7 and discounted under section 4.9. The superannuation component must follow the legally assessed future earnings stream rather than an undiscounted headline figure.
Tax and superannuation advice may be required for settlement structuring or account consequences. The legal damages schedule should state what it does and does not calculate rather than implying that it predicts the claimant's retirement balance.
Practical next steps
Prepare a superannuation loss schedule
Tie every contribution figure to a supported period of earnings loss.
Finalise the earnings periods
Identify the supported past and future loss before adding superannuation.
Identify each employer
Separate multiple jobs, packages and contribution arrangements.
Check the statutory percentage
Use the minimum legally required rate for each relevant period.
Reconcile actual contributions
Credit contributions that were still paid during the loss period.
State the limits
Distinguish employer contribution damages from fund performance and personal contributions.
Evidence
Superannuation evidence checklist
Account statements should be read with the earnings and employment records.
- Payslips showing earnings and employer contributions.
- Employment contracts and salary-package documents.
- Super fund contribution statements.
- Past and future earnings-loss schedules.
- Records for every concurrent employer.
- Applicable statutory minimum contribution sources by period.
- Business-structure records for owner-managers or sole traders.
- The insurer's calculation and assumptions.
Common superannuation calculation errors
- Do not apply one current rate to all historical and future years without checking.
- Do not apply superannuation to the whole settlement.
- Do not claim employer contributions where no earnings loss is proved.
- Do not confuse personal contributions with employer contribution loss.
- Do not use projected fund returns as the statutory section 4.6 method.
Timing
Keep contribution records as the claim develops
Rates and employment arrangements can change during a long damages claim.
- Download fund and payroll records before accounts or employers change.
- Update the schedule when the earnings-loss period or employment status changes.
- Check rates by the period to which the loss relates, not only the settlement date.
- The damages claim remains subject to its own statutory claim and procedural periods.
Frequently asked questions
- Is superannuation added to pain and suffering damages?
- No. Section 4.6 links it to damages for loss of earnings, not to non-economic loss or the whole settlement.
- Can I use my employer's higher contribution rate?
- The statutory provision refers to the minimum percentage required by law. The employment arrangement and current legal rule should be checked.
- What if I had two jobs?
- Each employer and supported earnings-loss period should be identified and reconciled separately.
- What if my employer kept paying super while I was off work?
- Actual contributions may reduce the claimed contribution loss for that period and should be shown in the schedule.
- Can a sole trader claim superannuation loss?
- The answer depends on the business and contribution arrangement. Personal voluntary contributions are not automatically employer contribution loss under section 4.6.
- Does the calculation include lost investment returns?
- Section 4.6 uses the statutory employer-contribution method. Do not assume a separate fund-performance model is recoverable.
Related NSW CTP damages guides
Official sources
- Motor Accident Injuries Act 2017 (NSW), current in-force version
- SIRA: lump-sum compensation (common law damages)
- SIRA: apply for common-law damages (lump-sum compensation)
This page uses the current Motor Accident Injuries Act 2017, Motor Accident Injuries Regulation 2017, Motor Accident Guidelines version 10.1 and the other official sources listed below. Damages and statutory benefits are separate parts of the NSW CTP scheme, and the result depends on the accident date, fault, injury, evidence and procedural history.
Economic loss calculation review
Has superannuation been omitted or calculated without explanation?
Send the earnings schedule, payslips, fund records and insurer calculation. We can check whether the contribution periods and statutory method have been identified.
General information only: This page provides general NSW CTP information, not legal, financial, tax, accounting or estate advice. It does not establish eligibility, calculate a settlement, create or extend a time limit, or guarantee that an insurer, the Personal Injury Commission or a court will accept a claim or item of loss.