The Law Handbook 2024

Chapter 10.2: Transport accident injuries 937 to the TAC within 28 days after the accident if requested by the TAC to do so. Currently, the procedure requires a claim to be lodged by calling the TAC on 1300 654 329, or by lodging the claim online on the TAC’s website (www. tac.vic.gov.au) . 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. Appeals 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’ at the end of this chapter) for a review of the decision. VCAT must then reconsider the decision and either vary or affirm the decision. Also, the Victorian Ombudsman can investi­ gate any administrative action of the TAC (see Chapter 12.1: Taking a problem to an ombudsman). Common law transport accident claims The principles relating to common law claims for negligence are set out in Chapter 10.1: Negligence and injury (see ‘Establishing liability’). Such proceedings can be issued where an injury or death results from the negligence of another party in a transport accident. Where there is a claim for damages sustained in a motor vehicle accident and the owner or negligent driver is known but cannot be found, there are special arrangements. Also, where the vehicle and owner or negligent driver involved is unidentified or uninsured, claims can be commenced against the TAC. Restrictions on common law proceedings There are severe limitations at common law on the right to issue proceedings for damages against a negligent party. If a person dies in a transport accident, common law dependency compensation proceedings can only be brought by a person who is a dependent of the person killed. The claim is limited to the extent of the lost financial dependency, and the no-fault dependency benefits are taken into account. However, a person who suffers nervous shock as a result of another person’s death might be entitled to common law compensation, in the same way as any person injured in a transport accident. The person must first lodge a claim for injury with the TAC. A person injured in a transport accident is forbidden from receiving common law compensation unless they have a serious injury. There are three ways that an injury may be recognised as a serious injury : • an assessment of 30 per cent or more whole per- son impairment (see ‘Benefits payable’, above) is deemed to be a serious injury ; • even if the injury is less than 30 per cent whole person impairment, the injury may be a serious injury if the TAC agrees; or • even if the TAC does not agree, the injury may be a serious injury if a court agrees. A serious injury is a serious long-term impairment or loss of a body function, permanent serious disfigurement, severe long-term mental or behavioural disturbance or disorder, or the loss of a foetus. A court will only award damages by way of loss of earnings, or loss of earning capacity, if the loss is between $63 880 and $1 438 310. A court also must not award damages for pain and suffering for less than $63 880 or more than $639200. Damages to be awarded on the death of a person are restricted to a maximum of $1 047000. If a person is successful in common law proceedings, any further benefits under the TA Act