The Transport Accident Commission (TAC) was established by the Transport Accident Act 1986 (Vic) (“TA Act”). The TAC administers and pays compensation to the dependants of workers who die, or to people who are injured, as a result of a transport accident. Legal advice should be sought if there are any difficulties or queries involving a transport accident. (For the TAC’s contact details, see “Contacts”.)
The scheme covers injuries or death as a result of a transport accident, including motor vehicle accidents or public transport accidents, if the accident occurred in Victoria. It also covers accidents where a Victorian registered vehicle was involved in an accident in another Australian state and the injured person was a Victorian resident or the driver of, or passenger in, a Victorian registered motor car.
A “transport accident” is defined to mean an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram. A transport accident also includes a collision between a cyclist and a motor vehicle (stationary or moving) while the cyclist is travelling to or from their place of employment. Also, from 19 November 2013, an incident involving the opening or closing of a door of a bus, train or tram can be a transport accident.
Benefits are not payable if:
1 in the case of a motor vehicle involved in an accident, the accident is not reported to the police, or in the case of a transport accident involving a railway train or tram, a report of the accident is not made to the operator of the railway train or tram. However, the TAC does have a discretion to excuse a failure to report a transport accident;
2 there is an entitlement to WorkSafe benefits under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) or other Victorian Acts of parliament or other interstate Acts similar to the Accident Compensation Act;
3 the injured person was involved in, or a spectator at, an organised motor-car race or speed trial at the time of the accident.
Any claim on the TAC must be made within one year of the accident or death or, if a person is injured, one year after the injury becomes apparent. The TAC has discretion to extend this time limit for three years in certain circumstances.
The general question of who was to blame or who caused or contributed to the accident is irrelevant under the TA Act. The Act also applies irrespective of whether a person received superannuation or social welfare payments.
There are further restrictions on receiving benefits (apart from medical or rehabilitation services) where the injured person was a driver and is charged with or convicted of a drug or drink-driving charge or other serious offence as set out in sections 39 and 40 of the TA Act. Other restrictions will occur where the driver was unlicensed or the motor car was not compulsorily insured under the TA Act. In these circumstances benefits can be reduced or even disallowed.
The amount of benefits payable under the TA Act generally depend on the date of the transport accident. The amount of excess (amount of medical expenses to be first paid by an injured person or dependant) also depend on the date of the accident (see “Medical and like expenses (ss 43, 60 TA Act)”).
Loss of income benefits are paid on the basis of “pre-accident weekly earnings”. This means the average of the gross earnings received over the previous 12 months provided the person was earning continuously in that period.
The benefits and excess of medical expenses are indexed and varied on 1 July of each year. The amount of variation is calculated on the increase in Victorian weekly earnings or the increase in the Consumer Price Index (CPI). Injured persons already receiving periodical death benefits and loss of earnings benefits on 1 July will be paid the increased benefits after 1 July.
For other benefits under the TA Act, the excess payable on medical expenses and restrictions on common law benefits (i.e. damages) depends on the amounts specified as at the date of the transport accident. However, the threshold and maximum amounts of common law benefits are the relevant indexed amounts at the date of judgment.
The amounts set out below are applicable for 12 months after 1 July 2018.
In assessing percentage impairment, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) must be used. The second edition is used for injuries as a result of transport accidents prior to 19 May 1998. For injuries suffered on or after that date, the fourth edition of the Guides is used for physical injuries. However, specific guidelines are prescribed for the assessment of any psychiatric or spinal impairment. Also, specific provisions are prescribed for assessing loss of hearing.
The TAC will pay for reasonable costs of rehabilitation, medical, hospital, nursing, dental, funeral, home help, home nursing and childcare services incurred due to a transport injury or resultant death. The TAC will not pay for the first $651 of these expenses for transport injuries prior to 14 February 2018. However, if the injured person has been an inpatient for one day, then the TAC is liable for reasonable costs of medical services.
In cases of death or serious injury, counselling services for the immediate family of the injured or deceased person are paid to a maximum of $16,510.
Other allowable expenses include the accommodation/travelling expenses of close relatives of an injured person incurred in order to visit that person. The TAC may also be liable to pay for necessary modifications to the house or motor vehicle of an injured person. If the injured person’s motor vehicle or home cannot be modified, then the TAC may pay for the purchase of a motor vehicle or semi-detachable portable unit, or relocation costs to another home.
If injury suffered in a transport accident prevents a person from working after five working days, then fortnightly payments for loss of earnings will be paid for up to 18 months after the accident. If a person is an “earner” within the meaning of the TA Act and is prevented from returning to work or starting a previously arranged job or business after five working days, then a fortnightly payment for loss of earnings will be paid for up to 18 months after a transport accident.
The amount payable depends on the number of people dependent on the injured person and the pre-accident weekly earnings. Weekly payments are assessed at 80 per cent of pre-accident average weekly earnings, or certain specified amounts in the TA Act, whichever is greater. The maximum weekly benefit for the year following 1 July 2018 is $1,350.
A self-employed person will receive 75 per cent of the maximum rate for loss of earnings for 12 weeks or until the correct rate is calculated or there is a return to work (whichever is earlier).
The TAC has power to make a payment for the first five working days following the transport injury in cases of acute financial hardship.
During the first 18 months after the transport accident, if there is a partial loss of earnings due to a transport injury, the TAC will make a partial payment that is generally 85 per cent of the difference between the injured person’s earnings before and after the transport accident, to a maximum of $1,350.
If after 18 months an injured person is still totally or partially unfit for work, loss of earning capacity benefits will be paid, being a non-taxable benefit equivalent to 80 per cent of after tax earnings before the accident. The maximum weekly benefit payable is $1,150.
If a person had not been in full-time employment or made an arrangement to start a job or business at the time of the transport accident, the injured person will become entitled to loss of earning capacity benefits, if appropriate, at a point 18 months after the transport accident. However, if the person is assessed as having injuries resulting in 50 per cent whole person impairment, then the loss of earning capacity payments may continue until retirement age.
Injured persons with a “severe injury” involved in a supported employment program will be able to earn up to $166 per week without losing their total loss of earning capacity benefits. Also, in such cases the TAC must ignore the first $166 per week of income for injured persons receiving partial loss of earning capacity benefits. If a person with a “severe injury” loses their job after returning to work, income benefits can be reinstated.
A “supported employment program” is where support is needed to obtain, or to perform and retain, that employment. A “severe injury” is defined as a significant acquired brain injury, paraplegia, quadriplegia, amputation of a limb or burns to more than 50 per cent of the body.
A person who has an impairment greater than 10 per cent from a transport accident can claim an impairment benefit. This benefit can be:
1 For people aged under 18 years, a “minors additional benefit” based on a percentage of $188 is payable.
2 For adults, a lump sum to a maximum of $352,460 (depending on the degree of impairment).
The TAC can assess impairment three months after the accident (or earlier if common law proceedings are contemplated) if the injury is stable, or otherwise six years after the accident. If the TAC believes there may be an impairment greater than 10 per cent and an injured person asks for an assessment more than two years after the accident, the TAC must finalise the impairment. This must be done within 12 months if the injury has stabilised, or otherwise within two years.
Loss of earnings and loss of earning capacity benefits will generally cease three years after the date of injury or when the combined total of such benefits reaches $178,010. Fortnightly payments will cease if an injured person attains the normal retiring age for their industry or occupation or becomes 65 years old, or if the injured person is serving a term of imprisonment.
These restrictions do not apply where a person is being paid an impairment annuity benefit or suffers a degree of impairment of 50 per cent or more.
If an injured person who was working or had arranged to begin work or start a business dies as a result of a transport accident, there will be dependency benefits payable to the surviving partner or spouse. These benefits are:
1 a lump sum of up to $185,140, depending on the age of the deceased person, shared between the dependent partner or spouse and any dependent children; and
2 a periodical payment for up to five years or longer if there are dependent children, assessed on a similar basis to loss of earnings benefits.
There are special benefits available for children who are orphaned as a result of a transport accident or where the other parent does not wholly, mainly or partly support the dependent child. The TAC is liable to pay weekly payments, education allowance and/or death benefit in these circumstances.
If the death was caused by the negligence of another person, there may be a common law claim for dependency payment.
The driver of a motor car involved in a transport accident must make a report in the prescribed form to the TAC within 28 days after the accident if requested by the TAC to do so. Currently the procedure requires the claim to be lodged by telephone, by calling the TAC on 1300 654 329. The TAC operator will take details, and send the form out for checking and correcting, then signing. The TAC might not consider the claim to be lodged until the completed signed form is return to TAC.
A claim by an injured person must generally be lodged within one year of the accident or death or when the injury first becomes obvious. The one year deadline can be extended to three years if there are reasonable grounds for making a claim.
Medical certificates detailing injuries and likely period of incapacity and a certificate of earnings form must usually be supplied as well. The TAC must generally make a decision on a claim within 21 days of receiving the claim, unless it makes a reasonable request for further information in which case it must make a decision within 14 days of receipt of the further information.
There are protocols in place to promote the early exchange of information and informal dispute resolution in cases involving impairment assessments, no-fault disputes and common law claims.
Any person who is dissatisfied with a TAC decision (or failure to make a decision) can – within 12 months of becoming aware of the decision – apply to the Victorian Civil and Administrative Tribunal (VCAT) (see “Contacts”) for a review of the decision. VCAT must then reconsider the decision and either vary or affirm the decision. (For further information, see Appealing government and administrative decisions.)