Transport Injuries - Advice Line Personal Injury Lawyers
If you have been injured in car, motorbike or transport accident and have a TAC claim it helps to have an expert on your side. Michael Lombard, the head of Advice Line Lawyers' TAC department, is an accredited specialist in personal injury law and has many years of experience in representing Victorians injured in road accidents. We provide clear and practical advice. In most cases, you are not charged for our time unless and until you succeed in your claim. A no obligation first appointment is free.
If you want to find out more about your TAC rights or compensation because of a car, bike or road accident, before coming in to see us, please click on the following links:
If you want to be represented by an expert Melbourne lawyer, experienced in TAC claims, please contact us on:
t: (03) 9321 9988
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How does the TAC scheme work?
The Transport Accident Act applies to people injured due to the driving of a motor vehicle, tram or train in Victoria or involving a Victorian resident and a Victorian vehicle. The scheme is administered by the Transport Accident Commission (TAC). The accident must be reported to the police or, if a train or tram accident, to the Public Transport Corporation.
Entitlements for the injured include payment of hospital bills and most medical expenses. Where the injured person was working for some part of the 2 years before the accident or was about to start work, there may be an entitlement to payments for loss of earnings.
Depending upon the degree of impairment when the injuries are stable, an injured person may also be entitled to a lump sum benefit.
Some benefits do not apply when the injured person is convicted of serious driving offences such as culpable driving, unlicensed driving and exceeding 0.5% blood alcohol limit. Where a person was injured during work, a claim should be lodged with WorkCover for the no-fault benefits of medical expenses and lost wages.
Where there is a serious injury, there may also be the right to sue the negligent driver of the vehicle in a Court, claiming compensation for pain and suffering and loss of earnings.
How do I lodge a claim?
A claim is made by phoning the TAC and informing them of the claim. Details of employment or income must also be supplied if a claim for loss of earnings after the first 5 days is to be made. The TAC will then send out a completed form which must be carefully checked and signed. It must then be returned to the TAC for them to accept the claim. A claim can be notified to the TAC on 1300 139 076.
What medical expenses can I claim?
People injured in transport accidents are not required to pay any hospital or ambulance expenses and these bills should be referred directly to the TAC. It is, of course, essential that a TAC claim form has been completed, signed and returned to the TAC.
If an injured person has not spent one night in hospital, the TAC will not pay the first $564 (from 01/07/2008) of medical expenses. These accounts can be claimed on Medicare or any private health insurance and the normal rebate applies. If a doctor bulk bills, the slips should be retained and the fees included in the first $564.
Once an injured person, who did not spend one night in hospital, has accounts for $564 of medical expenses, a Medical Expense Declaration form should be completed and sent to the TAC with copies of the accounts. Call TAC on 1300 654 329 and a form will be sent out. If more than one member of the family was injured in the accident, the medical excess will only need to be reached by one family member.
If an injured person has spent one night in hospital due to injuries, no medical excess applies and all medical accounts should be sent directly to the TAC.
The TAC will pay for other treatment, such as dental services, where the treatment is reasonable and directly related to the accident. The reasonable travelling and accommodation expenses incurred by parents in visiting their injured dependant children in hospital are also payable. Country families are entitled to travelling and accommodation expenses when visiting hospital.
Where assistance is required at home, the TAC may also provide for an attendant carer, a housekeeper, child minding or nursing services. Modifications to the car or home and rehabilitation services, required because of the injury, can be paid by the TAC.
Payment of medical expenses for transport injuries continues as long as needed. The entitlement to medical expenses does not stop if court or any other action is taken. Medical benefits payable by the TAC include:
Family Counselling - where death or serious injury
Feldenkrais treatment
Funeral expenses
Gym/swimming programs
Hearing Aids
Home modifications to suit injury
Hospital services
Hydrotherapy
Integration Support for school children
Meal costs for claimants who travel long distances for medical examinations
Motor vehicle modifications or replacement to suit injury
Nursing assistance
Occupational therapy treatment
Optical/Orthoptic treatment
Orthotics
Parent's hospital visiting expenses
Podiatry/Chiropody treatment
Programs to assist with return to driving
Prosthetic equipment
Psychology or social worker counselling
Reasonably required medical treatment
Recreation equipment needed for rehabilitation
Rehabilitation camps for children
Respite care for families coping with a severely injured family member
Speech pathology treatment
What if I can't work?
If you are unable to work as a result of the accident, you may be able to claim for your loss of earnings. People injured in a motor vehicle accident who were employed or self employed at the date of the accident, or had worked for periods in the 2 years before the accident are entitled to compensation for their loss of earnings. Arrangements made before the accident to start work would also qualify an injured person to loss of earnings payments.
The claim form lodged with the TAC requires details of the wage or income received. A medical certificate certifying incapacity must also be provided for periods of lost income.
The TAC does not pay for the first 5 days away from work. The benefits paid after the first 5 days are 80% of the weekly earnings before the accident. Overtime and shift allowances are included where they were regular over the previous 12 months.
The maximum that can be paid is $998 per week (from 01/07/2008) and the minimum is the amount earned or $489 plus an allowance for dependants (whichever is the less). The TAC, after accepting the claim, will be like an employer and make fortnightly payments from which it will deduct the appropriate amount of tax.
If an injured person is convicted of certain offences such as exceeding .05% blood alcohol limit, these benefits may be reduced. Special provisions are made for apprentices and students. Where they would have received an increase in wage, because of their increased level of training, the TAC loss of earnings payments will also increase.
People who were self-employed prior to the injury may have their claim assessed by TAC Field Officers or accountants who may visit their business. The TAC is entitled to look at the income earned during the 3 years before the accident, but it is not necessarily the average over the 3 years.
Small business proprietors should be aware that the TAC is not obliged to take into account the fixed expenses which all businesses incur, whether it is able to be operated or not. This can be very harsh on small businesses which have fixed rental or lease arrangements in place.
The TAC is, however, obliged to pay the costs of replacement workers in connection with the business because of the proprietor's incapacity. It can be of great assistance for the self-employed to employ a casual replacement whilst they are injured and seek immediate reimbursement from the TAC for the wage. Contact should be made with the TAC claims support co-ordinator about this at an early stage.
Partial loss of earnings are compensated at the rate of 85% of the difference between previous weekly earnings and current weekly earnings. Immediately there is a return to work, the TAC must be notified.
Personal Accident Insurance and Superannuation will not be taken into account when the TAC is assessing loss of earnings.
The TAC can also make arrangements for an injured person to be medically examined from time to time by doctors nominated by the TAC. The purpose will be to confirm the person's inability to work. An injured person cannot fail or refuse to attend the appointment without a reasonable excuse, or loss of earnings benefits can be suspended.
What if I can't work after 18 months?
After 18 months, a person who is unfit for work is eligible for payment of 80% of his or her net (after tax) pre-accident wage or earnings. These payments are called Loss of Earning Capacity Benefits. Injured people who did not qualify for loss of earnings in the first 18 months may qualify for loss of earning capacity benefits if they intended to go into the workforce before the accident, but the injuries prevented this. If it appears that a person will suffer a loss of earning capacity due to the injury, the TAC must, after 18 months, review the injured person's entitlement.
The maximum payable is $843 per week (from 01/07/2008), with a minimum of $453 plus an allowance for dependants. Where a person is assessed by the TAC as having a permanent impairment of more than 50%, the loss of earning capacity benefit will continue to be paid up until retirement age by fortnightly instalments. Reviews of the level of impairment can be made by the TAC every 5 years.
Where the person is less than 50% impaired, the loss of earning capacity benefit will only be payable:
until 3 years after the injury or
until loss of earnings, loss of earning capacity has reached $137,470 or
if the person was a minor when injured, until the age of 21.
Can I claim pain and suffering compensation?
Regardless of how the accident occurred, you may be entitled to a lump sum payment for your pain and suffering if your permanent whole person impairment is assessed as more than 10%. This payment is called an impairment benefit.
If the Accident was caused by the negligence of another person, and you have suffered a serious injury as defined by the Transport Accident Act, you will be entitled to sue the driver of the negligent vehicle in court for your pain and suffering. This sum would be in addition to the impairment benefit payable.
What is a permanent impairment benefit?
The Transport Accident Scheme provides for the payment of a lump sum, as part compensation for pain and suffering, called an impairment benefit. It is paid regardless of fault or whether the injured person was working at the time of the accident.
The amount payable is determined in accordance with a formula based upon the injured person's level of impairment. The percentage impairment is determined according to the American Medical Association "Guides to Evaluation of Permanent Impairment", 4th Edition.
A request for an impairment benefit can be made at any time when the injuries are stable. An interim payment can be paid if the injuries are substantially stable, or the injuries are particularly severe. A person's impairment must be assessed within 3 years of the accident, or can be delayed if a person wishes.
Your solicitor requests the TAC to commence the impairment assessment process. A statement is prepared detailing the injuries and any relevant medical history. Medical and treatment information is obtained and appropriate independent medical examinations are made. A percentage impairment is then able to be calculated.
The TAC can agree with the calculation, arrange their own medical examinations or request further information. The assessments are carried out by doctors under the AMA Guides which impose a very high criteria on percentage
impairment.
The AMA Guides are not generous. Some examples are:
loss of vision of one eye 24%
loss of sense of smell 5%
loss of little finger 5%
loss of a foot 25%
This process can take between 3 and 6 months.
Adults are entitled to a payment if they have an impairment greater than 10%, in accordance with the Guides.
Where the injuries were sustained in an accident before 16 December 2004, the amount payable is approximately $984.56 for every 1% above 10% impairment. A person with a 20% impairment would be entitled to $9,845.56. The maximum payable is $88,610.00.
Where the accident occurred on or after 16 December 2004, an increased impairment lump sum is paid on a rising scale. The following are indications of the amount paid:
11% $6,140
20% $16,730
50% $67,200
The maximum payable is $281,090. A request for the TAC to assess impairment must be made by within 6 years of the accident.
Can I dispute a decision about my entitlements?
If the TAC make a determination about your rights which is wrong, an application can be made to have the TAC review the decision, or for the Victorian Civil and Administrative Tribunal to review it. TAC determinations which can be reviewed include your rights with regard to medical expenses, loss of earnings or an impairment benefit. You only have one year in which to appeal against a TAC decision. It is vital that you discuss this with your solicitor if you wish to dispute a TAC decision.
Can I sue if it wasn't my fault?
Although the accident may not have been the injured person's fault, the only people who can sue in Court for compensation are those who have suffered a serious injury. There are 3 ways in which an injury can be regarded as a serious injury:
a permanent impairment of 30% or more
the TAC agreeing that a serious injury has been suffered and issuing a certificate for the start of a Court action
a judge, after a preliminary hearing, agreeing that a serious injury has been suffered and consenting to the start of a Court action
The first way a serious injury is determined, is when a person has been assessed by the TAC for permanent impairment and the impairment is 30% or more. The assessment is conducted by doctors in accordance with the American Medical Association 'Guides to the Evaluation of Permanent Impairment', 4th Edition. These guides are not generous. Some examples are:
loss of vision of one eye 24%
loss of sense of smell 5%
loss of hand 54%
If the assessment is less than 30%, application can be still made to the TAC or the Court to sue the driver. The Supreme Court has held that a serious injury can be the loss of a body function which is long term and has a serious consequence for the injured person in the form of disablement from his/her previous work or interference with enjoyment of life. Some examples of this type of serious injury are:
a cook who loses the sense of taste
a bricklayer who damages his knee
a pianist who crushes a finger
a nurse who injures her back
A serious injury can also be:
permanent serious disfigurement
severe long-term mental disturbance
loss of a foetus
Suing for damages
An injured person may sue for two types of damages:
damages for pain and suffering and loss of enjoyment of life
damages for loss of income and earning capacity
To be entitled to anything, however, the Court must award at least $42,270 for pain and suffering or $42,270 for earnings lost.
There is also a maximum fixed by the Court of:
pain and suffering $422,900
loss of income $951,560
If successful at Court in a claim for pain and suffering, all impairment benefits previously paid are taken into account. If successful at Court for loss of income, all loss of earning capacity benefits are taken into account. After the Court case, some rights under the Transport Accident Act cease, but not the payment of ongoing medical and rehabilitation costs. Due to the different considerations which must be taken into account before suing, any action should be fully discussed with a lawyer.
What will it cost me?
The costs involved in the process are outlined in detail in our costs agreement.
If you appeal against a TAC decision to the Victorian Civil and Administrative Tribunal, or commence a Court action suing the negligent driver of the other vehicle, we would only charge you professional costs if you received payment either by settlement or a Court order.
If you were able to sue the driver of the other vehicle and received compensation, you would be responsible for the portion of our costs not payable by the TAC. We would charge you in accordance with the appropriate court costs scale together with an uplift fee provided under the Law Institute rules due to the conditional nature of the action.
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