Victoria's Transport Accident Commission and compensation for victims of road trauma

see also:

• Victoria's Transport Accident Act 1986 (pdf)
• TAC and Work Care / Work Safe certificates of capacity
• trauma

• patients involved in road trauma may be eligible for financial compensation for:
  • medical expenses
  • certain allied health expenses such as physiotherapy, podiatry, etc
  • loss of income - but not the first 5 days after the accident
  • lump sum payment for permanent impairment > 10% as determined at least 3 months after injury
• the following is a brief dummies guide to assist doctors and should not be taken as legal advice - see the Act for details.
• the ACT has significant restrictions on what civil actions can be taken for compensation:
  • a person may recover damages under Part III of the Wrongs Act 1958 in respect of the death of a person as a result of a transport accident, but the court must not award damages in excess of $500,000.
  • a person may recover damages if degree of impairment is > 30% or TAC agrees it is a “serious injury” and issues a certificate in writing to consent to the bringing of proceedings.

• the accident occurred in Victoria, or in another State or Territory and involved a registered motor vehicle and at the time of accident, the person was a resident of Victoria, or the driver or passenger in the registered motor vehicle.
• a dependent of a person who died and who would have been eligible for compensation had they survived.
• “may” be eligible if person was planning to live in Victoria for at least 6 months after the date of the accident

• compensation by other Acts:
  • Country Fire Authority Act 1958
  • Education and Training Reform Act 2006
  • Juries Act 2000
  • Police Assistance Compensation Act 1968
  • Victorian State Emergency Service Act 2005
  • Emergency Management Act 1986
  • another State or Territory Act corresponding to the Accident Compensation Act 1985
  • compensation under Victorian Work Care - Accident Compensation (WorkCover) Act 1992 or Accident Compensation Act 1985
• accident not reported to authorities without adequate excuse for not reporting:
  • accident involving a motor vehicle is not reported to Police of the State in which it occurred
  • if involving a tram or train, a report is not made to the operator of the train or tram
• criminal acts at the time of accident:
  • driver is convicted of an offence under Crimes Act 1958 in respect of driving the motor vehicle at the time
  • driver is convicted of an offence under Road Safety Act 1986 in respect of driving the motor vehicle at the time unless the person can satisfy the Commission that the intoxicating liquor or drug did not in any way contribute to the accident
  • was a driver or passenger in a car owned by a person who had not paid a transport accident charge at the time of the accident
  • was a driver without a licence or at the time it was canceled or suspended, or not paid renewal of it within 3 years of it falling due (obviously drivers with learner permits are eligible if driving with an accompanying licensed supervisor)
  • was a driver or passenger in a motor vehicle in connection with an indictable offence, stealing or attempting to steal a motor vehicle, resisting lawful apprehension or intentionally causing harm to others.
• involvement in motor sports not conducted within rules of Road Safety Act 1986:
  • includes driver, passenger, spectator, official or competitors in an organised motor vehicle race or speed trial
• unregistered or vehicles uninsured by Third Party Insurance:
  • unregistered or uninsured vehicle on private land (not a highway and members of public may not enter or remain without permission)

• loss of income
  • usually based on 80% of pre-accident earnings to max. payment of $621 per week subject to review after 18 months
  • this can be quite complicated for self-employed or seasonal workers - see the Act
• “reasonable” medical expenses including physiotherapy BUT only at TAC cap levels per item and only one appointment on a given day for a type of expense (ie, you cannot claim attendance at a physiotherapist for a neck and another one for you foot on the same day).
  • hospital costs, nursing costs, ambulance, transport costs, disability services, rehabilitation costs (eg. gym, home modifications, etc)
  • carer's costs for looking after a dependant child
• permanent impairment lump sum if more than 10% impaired at an impairment assessment performed by TAC at least 3 months after injury.
  • this lump sum benefit apparently starts at $4500 for an 11% impairment
• death benefit to surviving partner or dependents
  • depending on deceased person's age, this appears to range from $50,000 to $100,000 or a periodical payment as per loss of earnings clause
• individual funding agreements
  • each agreement is limited to a maximum period of 60 days

• first 5 days of loss of earnings after the accident
• initial medical charges up to $384 per family unless patient dies or services are incurred after 1 day of admission to hospital because of an injury due to the accident
• pain and suffering
• permanent impairment lump sum if 10% or less impairment
• therapies not covered such as massage, myotherapy, etc
• injuries not related to the accident - this may include if injuries from the accident have been exacerbated by other actions.

• initial treating doctor should provide a TAC certificate which will become the initial Claim Form
• it is wise to ensure ALL injuries are notated on this form, particularly if they are likely to result in longer term disability or pain which requires ongoing therapy.
• it is wise that alcohol breath test results are documented in the medical notes as it may become the patient's responsibility to prove that they were not intoxicated at the time of the accident
• patient or representative then telephones TAC to notify them of the accident and will be asked a thousand questions then allocated a Claim Number which is used on subsequent claims.
• treaters such as physiotherapists usually need to apply for compensation by submitting to the TAC in advance, a Treatment Notification Plan (TNP)
• the Commission must within 21 days after receiving a claim for compensation:
  • accept or reject liability to pay compensation; or
  • make a reasonable request to the claimant to provide further information in relation to the claim or submit to a medical examination; or
  • make a reasonable request to another person to provide information in relation to the claim and advise the claimant of the request.
• if the Commission fails to comply with the above in the specified period, they will be deemed to have rejected the claim, and the claimant may apply to the Tribunal (VCAT) within 12 months for review of the rejection.

• see the ACT for the specific process and time frames for dispute resolution via application to Tribunal.
• if the TAC rejects a TNP or claim for a benefit, a request for an Informal Review of the decision can be made
• if there is a dispute with the TAC's decision, the patient may make a case to VCAT within 12 months, for a small fee of ~$360 but this should not be taken lightly:
  • TAC lawyers will almost certainly subpoeana practically every medical record for every doctor or therapist you have attended prior the accident and thereafter
  • following been notified of intention to proceed to VCAT (see Victorian Civil and Administrative Tribunal Act 1998).
  • TAC must, within 28 days after receiving a copy of an application under section 77 for review of a decision of the

Commission, reconsider the decision or give the applicant a notice under subsection (2).

• TAC must supply the patient with Section 49 papers which outline their decision making process.
• the applicant must provide TAC within 90 days, detailed reasons for the application to the Tribunal, and such further information that TAC requires.
• The Tribunal may fix a date for the hearing of an application but must not commence any proceedings in relation to the application until —
  • notice is received under section 80(2) that the TAC has re-affirmed the decision; or
  • the TAC is deemed by section 80(3) to have re-affirmed the decision; or
  • an application is made under section 78(5).
• the patient will need to create legal documents and witness statements and the patient or their representative will then present their case to a Member of VCAT at a Directions Hearing.
• at the Directions Hearing, the patient may decide to proceed to either a Conference with TAC and their lawyer, or preferably, proceed to a Mediation Hearing assisted by an impartial mediator to try to strike a compromise agreement with TAC to avoid the hastles, stress and costs of a final hearing.
• at the Mediation Hearing, the patient should be legally represented so that any agreement reached within the mediation would be final and not subject to the otherwise 48 hour “cooling off period” which allows either party to revise its terms and coerce the other party into a modified terms of agreement.
• if an agreement is struck, a subsequent violation of the agreement may force proceeding to a formal Hearing at VTAC in which the decisions would be made by the VTAC member and be out of the hands of either party.
• it would be usual though for each party to pay their own witnesses loss of income and travel costs for attending.