The Transport Accident Commission can pay for the following:
- Medical and like expenses
- Lost wages
- Household help
- Lump sum payments – Impairment Benefit and Common Law claims
When you are injured in a road accident you have 12 months to lodge a claim in Victoria. If you wish to pursue a lump sum claim for Common Law damages you have 6 years from the accident date.
There are two types of lump sum compensation claims.
The first is an ‘Impairment Benefit’. This is a lump sum payment for a permanent Injury. Once you see a lawyer and they collate your medical evidence, they will make a claim for Impairment Benefits with the TAC. The TAC will then arrange for an Independent Medical Examination to occur.
In this examination, the doctor will assess your injuries and provide you with a percentage of impairment. You must obtain a whole person impairment rating of 5% for physical injuries to enable you to obtain a lump sum payment. If you obtain an impairment rating of 5% or more, the TAC will pay you the amount of compensation allocated to that percentage. There are set tables to determine this, therefore, there will not be an argument about the amount of compensation you are entitled to for the percentage you have obtained.
However, if you are unhappy with the percentage received from your examination, you can elect to have your injury assessed by the Medical Panel. The decision of the medical panel is binding regardless of whether the percentage obtained is higher or lower than your original percentage.
Examples of Impairment include:
- Spinal cord Injuries
- Restricted shoulder movement
- Permanent psychological conditions
- Brain injuries
Injuries that fully heal after treatment do not lead to impairment. However, it is possible to have an injury that is not considered an impairment and still be entitled to lump sum compensation under a common law claim.
The second is a ‘Serious Injury Application’ otherwise known as a Common Law Claim.
The Transport Accident Act 1986 defines a serious injury as the following:
- Loss of a fetus
- Permanent serious disfigurement
- Serious long-term impairment
- Loss of a body function
- Severe mental or long-term behavioral disturbance
If you have completed an impairment benefit claim and were given an impairment rating of 30% or more, you will be deemed to automatically have a serious injury.
When making a Serious Injury Application, your lawyer will prepare your paperwork by collating your medical evidence and supporting wage information. You have the option to make a claim for Pain and Suffering and Economic Loss or Pain and Suffering only.
Your lawyer will discuss these options with you.
When claiming economic loss, your lawyer will calculate this based on your personal income loss.
It is not always appropriate to claim economic loss. For example, if you are unable to work in your pre-injury role but are able to work in a different role that provides you the same or increased income, then a claim for Pain and Suffering only would be appropriate.
The TAC will then either accept or reject your Serious Injury Application. If the TAC grants the Serious Injury, a conference will be held and your solicitor will attempt to resolve your dispute. If the TAC rejects your Serious Injury, your lawyer will begin preparations to file a court case.
The case studies are based on real life cases, the people’s names have been altered for privacy.
Sam was outside of his house with a friend when a truck drove past. A passing truck drove past carrying scrap metal. A large unrestrained panel flew off the back of a truck and hit Sam’s friend causing him serious damage to his back. Sam’s friend obtained a serious injury and was awarded $500,000 from the Transport Accident Commission (TAC). This payment came from Impairment Benefit and a Common Law claim. Sam sustained psychological damage for having witnessed the incident and was also able to claim a damage from the TAC.
You do not need to be in a vehicle to make a TAC claim. If you have sustained damage because of a transport accident, you can make a claim.
Erica was involved in a road rage incident. Erica got out of her vehicle and assaulted the other driver. The driver got angry and made the decision to hit Erica with her vehicle. Erica obtained a serious injury to her back. She had no work capacity. Erica obtained a judgment of $400,000 in damages however obtained a 50% reduction for contributory negligence. Because Erica assaulted the other driver, it was found that she would loose 50% of her compensation because her own actions caused the incident. In most cases, contributory negligence is a factor.
Bob was speeding and lost control of his vehicle. Bob also did not have a license. Bobs brother was in the vehicle at the time and they both sustained injuries. Bob was able to make an impairment Benefit claim. Bob was unable to make a common law claim because he was at fault for the accident.
However, Bobs brother was able to make a Impairment Benefit Claim and a Common Law claim because he was a passenger and not at fault for the accident.
If you are at fault for an accident you can make an Impairment Benefit Claim, but you are unable to make a Common Law Claim.
Samantha was walking in a shopping Centre car park and hit by a vehicle reversing out of a parking spot. Samantha sustained serious leg and hip injuries. Samantha was able to make a TAC claim and obtain damages.