The Law Handbook 2024

Chapter 10.2: Transport accident injuries 935 excess is payable for injuries sustained on or after 14 February 2018. 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. NOTE The amount of benefits payable set out below are applicable for 12 months after 1 July 2023. In assessing percentage impairment, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (‘ Guides ’) must be used. The fourth edition is used for injuries as a result of transport accidents on and after 19 May 1998. The Guides are 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. Medical and like expenses (s 60 TA Act) TheTACwillpayforreasonablecostsof 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 also pay for some physical therapies, such as physiotherapy, chiropractic therapy, osteopathy and acupuncture. 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 $19 280. Other allowable expenses include the accomm­ odation/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. Loss of earnings benefits (ss 43–46 TA Act) 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 is $1540. 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 $1540. Loss of earning capacity benefits (ss 49–54A TA Act) 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