TAC BENEFITS FOR CHILDREN
By Michael J Lombard & Fiona Ryan

ARTICLE FOR THE LAW INSTITUTE JOURNAL
SEMINAR IN PRINT - TAC CLAIM

Abstract

Representing injured children is a challenge for any lawyer. Representing a child injured in a transport accident adds a further degree of difficulty requiring careful consideration and judgement.

Introduction

Acting for a child who has been injured in a transport accident involves a myriad of decisions to ensure the best outcome for the child. The transport accident scheme involves two components. The first is a "no fault" part giving the injured person special assistance regardless of fault. This section is particularly complex in regard to children as there are specific benefits which only apply to families. The second part entitles those seriously injured to sue for pain and suffering and economic loss.

Immediate help

Where a child is injured in a transport accident, the travelling and accommodation expenses of the parent or guardian, visiting a dependant child in hospital, should be paid by the Transport Accident Commission ("TAC") . Unfortunately, parents are often not aware of this assistance. As they are concerned only with the child's welfare, they suffer financial hardship if not informed, early, of this help being available.

The TAC does not pay for the initial medical expenses currently fixed at $488, unless an injured person stays in hospital for at least 1 day. Where the TAC will not pay the "medical excess" the expenses can be claimed on Medicare or other health insurance.

Where several members of a family have been injured, only one medical excess declaration form needs to be completed. The family group includes spouses and dependant children under 18 .

Where a family member suffers severe injury, counselling is available to all members of the family from a medical practitioner or registered psychologist to a limit, currently fixed at $1,820.00 .

Lodging a claim

An adult who is injured in a transport accident has one year to lodge a claim, which can be extended to three years where there are reasonable grounds for the delay . The unfairness of this law for children was partially addressed in November 2000 when an amendment was made to allow a claim to be lodged within one year of the child attaining 18 years of age .

Strangely, however, the new sub-section was made subject to the three year expiry period . It also only allowed one year, commencing on the 18th birthday to lodge the claim, if not lodged earlier.

Making sure a claim has been lodged should be a major priority for any lawyer assisting children injured in a transport accident.

No fault financial assistance

The Transport Accident Act ("the Act") provides a small payment for the impairment and adjustment of lifestyle that a badly injured adult experiences .

To compensate the young injured claimant who is required to wait until age 18 to be paid an impairment benefit, the Scheme includes a minor's additional benefit . It provides for a weekly payment to be made to a parent or guardian where their child has a degree of impairment greater than 10%. The percentage impairment determined by the TAC is multiplied by a sum which is adjusted each year in accordance with average weekly earnings . A 20% impairment would result in a weekly payment of approximately $22.00. This impairment is determined in accordance with the American Medical Association Guide to the Evaluation of Permanent Impairment .

The TAC does not have to review the degree of impairment from 18 months after the accident until the age of 18 years. It is therefore important to ensure the first impairment determination is correct. If the child is very young at the time of the accident, there can be a considerable loss of financial assistance if the TAC continues to rely upon an incorrect determination.

If a child was over 15 years and had worked for specified periods before the accident, loss of earnings payments are made at the rate of 80% of the sum earned before the accident .

If the child was an apprentice or in training, the rate increases with the increased age or completion of training that would have been anticipated, but for the injuries .

Students can be paid income benefits upon either completing secondary school or their course of study . Students are also entitled to loss of earning benefits where they had part time jobs prior to the accident.

Where the child was not working at the time of the accident the pre-accident earning capacity is deemed to be 80% of the average weekly earnings of all Victorian employees . If the child is totally unable to work at age 18, the payment will commence at that rate.

When an impairment of 50 per cent or more has been assessed, the loss of earnings payments continue beyond age 21. The final impairment, assessed at age 18, must therefore be carefully checked, and if necessary, reviewed. The TAC pays for a large portion of the costs of the medical reports obtained in any independent review .

Other no fault benefits

For the badly injured child, the most important part of the Transport Accident Scheme is the rehabilitation and disability assistance that is available for the child's life. Payment for medication, treatment and everyday medical needs are paid by the TAC as long as they are reasonable and related to the accident .

If a house or car requires modification to enable the child to return home, or better cope with their disability, the TAC is required to fund the changes . Where the cost of modifications is greater than $5,300 , a contract is required to be signed. The Act only requires the person to enter into the agreement and does not stipulate that a guardian is required to sign on behalf of a child . The agreement is required to provide for subsequent modifications, changes of ownership and their frequency . Often the agreements provided by the TAC encompass far more than these two areas, and should be carefully scrutinised before they are signed.

Care

Parents are not expected to spend every hour of every day caring for their injured child, disregarding the rest of their family and their own lives. The TAC is required to pay for reasonable nursing and attendant care services as well as the transportation costs of taking the child to treatment. As nursing and attendant care can only be provided by an approved provider, it becomes necessary to obtain approval from the TAC for these services. A parent will not be paid directly for nursing and attendant care work provided by them. If they work for an approved provider as an attendant carer, they are, of course, entitled to be paid by their employer.

To enable children to return to school, it is often necessary for an integration aide to assist in the classroom. The fees and costs of the repeating of a year of school or the provision of a tutor can also be reasonable rehabilitation costs.

Help for parents

The rehabilitation and health of children can be adversely affected if the parents do not have a break from time to time. The reasonable cost of respite for parents is a valid part of the rehabilitation costs of a child. The current policy of the TAC allows four respite breaks per year to parents. As the TAC policies are not the law , the TAC must pay what is reasonable .

The Right to Sue

Only those who have suffered a "serious injury" can sue for pain and suffering and economic loss . The right to sue is determined after the permanent impairment has been assessed.

A serious injury can briefly be summarised as being:

a 30% impairment; or
a long-term loss of a body function; or
loss of a foetus; or
severe psychiatric or behavioural disorder; or
severe scarring or disfigurement

As many families may not wish to wait for 18 months, there is a provision for TAC to assess impairment earlier for the commencement of common law proceedings . The TAC must be satisfied, however, that the injury has stabilised or substantially stabilised . The right to appeal against the determination exists if there is disagreement with the assessment or the stabilisation issue.

If the assessed impairment is less than 30%, application can be made to the TAC for agreement that a serious injury has been sustained and the right to issue Court proceedings prior to the child turning 24 years of age.

Often the requirement of early impairment assessment and consent to issue proceedings become intertwined. To expedite matters, the TAC agrees that an impairment of 30% has been sustained. This can be done without extensive medical examinations, where the injuries are obviously serious.

When to sue

Where a very young child is injured, when to embark upon a Court action becomes a crucial decision. Some of the criteria that need to be analysed include:

• Are the deficits caused by the injury clearly evident?
• Could the opportunity to maximise the sum of money available for the child's future be lost by delay?
• Is the issue of Court action causing undue stress throughout the family?
• Are the benefits under the current TAC Scheme likely to be further reduced in the future?

When acting for any child, a careful comparison needs to be made between the 'no-fault' entitlements of impairment and loss of earning capacity benefits, and the damages that could be obtained in Court.

A child who has a 50% impairment will receive loss of earning capacity benefits for the whole of their working life without having to prove negligence by another party. At present, this equates to 80% of average weekly earnings . This entitlement ceases, however, upon damages for loss of income being awarded .

Where the issues of liability or contributory negligence are not clear, a Court action claiming future loss of earnings may be full of danger. So as not to risk the loss of future income some common law actions have solely claimed compensation for pain and suffering.

Each case must be individually assessed with consideration of these and other relevant factors. When it comes to assessing general damages, Judges and Juries will quickly appreciate the lost potential that the injury to a child represents. One circumstance that must be taken into account with a very severely injured child is their awareness of deprivation. If there is no awareness at all, only a small sum for pain and suffering is awarded .

When the issue of future earnings is presented to a Court, a careful examination should be made of the careers and earnings of the parents and siblings to show a potential greater than the average. School reports can also help project an exceptional career path.

Children's cases also challenge the notion of reducing lump sum loss of earnings calculations because of the vicissitudes of life. Whilst we automatically assume negative vicissitudes on the future life of an older person, children have many positive vicissitudes in their lives.

Court protection

Where a child's Court case is settled with the TAC, it must be sanctioned by the Court before it can take effect. A Judge of the County Court or Master of the Supreme Court will usually require the following documents to be provided:

• the written offer from the TAC solicitor
• a written advice from Counsel
• an Affidavit from the Plaintiff's solicitor with all medical and relevant documents exhibited
• an Affidavit of consent from the Litigation Guardian

The Court must be satisfied that the prospect that the child would receive a greater sum by rejecting an offer and proceeding to Court is outweighed by the risk of receiving a sum less than the suggested compromise .

Access to funds

The major portion of Court approved sums for injured children and persons under a disability is held with the Senior Master's Office of the Supreme Court. The child's sum will be held there until the age of 18 years is reached or "until further order".

During this time, money can be released to help the child. Although the Court has an inherent discretion, the funds may only be used for constructive purposes. The Senior Master will use the following criteria:

• What will be the benefit to the beneficiary?
• Can the funds afford to pay for the request?
• How will any interest of the beneficiary be protected?

This requirement gives both the community and most importantly the relatives of the child, the security of knowing that the child's money will not be exploited or "frittered" away. Funds can be used to pay for a variety of needs such as regular maintenance, school fees or the purchase of a car or home.

Conclusion

Helping an injured child and family deal with the TAC Scheme is an area where lawyers can make a very positive difference. It requires the most careful thought and attention to detail. Unfortunately, we are seldom able to answer the parents' most haunting question, "Who will care for our disable child when we are too old, or gone?"

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