Motor vehicle accidents/transport accident claims

OVERVIEW

The Transport Accident Commission (TAC) was established by the Transport Accident Act 1986 (The Act). The Act was set up to compensate injured persons resulting from transport accidents.

You must make a claim to TAC within one year of the accident however in exceptional circumstances the TAC can extend this to 3 years after which all entitlements are extinguished. All claims ought be accompanied by a police report setting out the circumstances of the accident.

An entitlement to compensation is available to persons involved in motor vehicle accidents. Although you may not be automatically disqualified from receiving compensation some exceptions may apply where you were racing, drink driving, unregistered or unlicensed..

If you suffered an injury as a result of the driving of a car, jet-ski, bus, train, truck or motorbike or any other registered or (in some cases) unregistered vehicles the following entitlements are available:

A. NO FAULT BENEFITS

1. Weekly payments of compensation
   
   If your doctor certifies you unfit to return to work following an accident in the first 18 months you are entitled to claim loss of earnings. Although the first 5 days are not payable in most circumstances you are entitled to 80% of your pre injury average weekly earnings up to the statutory maximum ($1,061.00 ).
   
   If you remain incapacitated after 18 months and before 36 months you are entitled to loss of earning capacity. Essentially these payments allow for increases in circumstances where you either were not working prior to the accident (ie, student) or an apprentice who would be entitled to pay increases.
   
   Unless you can establish a Whole Person Impairment of 50% or more, after 3 years months weekly payments will cease.
   
   
2. Medical and like expenses (M&L)
   
   Medical and like expenses can be classified as expenses relating to reasonable medical treatment including hospital, therapy, surgery, wheelchairs, crutches and medication.
   
   Like expenses are those expenses which are incurred as a consequence of being incapacitated; these can include: travel, home assistance for cleaning, cooking, gardening and painting.
   
   In order to qualify for reimbursement of M&L expenses you must meet the threshold ($564.00 ) and establish they must be reasonable. In most circumstances a certificate from your doctor outlining the need for treatment will be sufficient.
   
   
3. Lump sum compensation
   
   When your injuries are considered substantially stable and a minimum of three months has elapsed since the accident you are entitled to be assessed as to whether you qualify for lump sum impairment benefits. In order to establish the threshold you need to establish you have a whole person impairment (WPI) of 11% or more when assessed in accordance with the American Guidelines to Permanent impairment (AMA Guides) Fourth Edition.
   
   For accidents occurring on or after 16 December 2004 the current statutory minimum for an assessment of 11% WPI is $5,270.00 with the current maximum being $295,100.00.
   
   
4. Dependency claims
   
   A person who dies as a result of a transport accident and has a dependent partner or child is entitled to lodge a claim for compensation. A claim must be made within 1 year of the accident and in exceptional circumstances 3 years.
   
   A dependent is generally considered someone who is wholly or mainly dependent upon the deceased for economic support.
   
   Dependants are currently entitled to weekly payments, death benefits, funeral costs and counselling. Currently a lump sum death benefit is a statutory minimum of $1,061.00 per week with an allowance of $147.00 per week for the first child dependant and $47.00 thereafter.
   
   A lump sum is also payable to a dependant.
   
   

B. COMMON LAW CLAIMS

Common law claims are actions generally where negligence against another driver can be established. In order to pursue these entitlements you must establish you have a serious injury within the definition of the TAC and following this negligence against another party. Any such claim must be pursued within six years of the date of injury although there are limited exceptions.

Serious Injury

Unless you can establish you have a serious injury you are unable to pursue common law damages; there are two gateways in establishing serious injury, they include:

1. Being assessed as suffering 30% WPI (deemed automatically Seriously Injured);
2. Being classified by the TAC or a Court as having a "serious injury". We refer you to the section "Do You Have A Serious Injury" in the WorkCover section. The same principles apply to motor vehicle accident injured except the law under the Transport Accident Act does not require a 40% loss of earnings.

Negligence

If you have been assessed as suffering from a serious injury you will then need to establish negligence (at least in part) against another party. In most circumstances it is clear when another driver will have caused the accident however in certain instances even when you are the driver there may be situations leading to the accident which are the fault of another party. An example may be when you are involved in a single vehicle accident where the road was in poor condition due to the road authority or a contractor being negligent.

No accident is identical therefore each individual circumstance needs to be evaluated on its merit in order to satisfy whether negligence can be established.

The current statutory maximum claimable for pain and suffering and loss of earnings in common law claims is $1,489,990.00.

N.B. If you are injured in a motor vehicle accident at work your no fault benefits are generally covered by WorkCover and any claim for damages for negligence via The TAC.

Jane and her husband were driving back from the country at dusk. They were involved in a head on collision with James' husband sustaining catastrophic head injuries . There were two silver cars involved in the collision and unfortunately the Police report revealed that Jane's husband was at fault by being on the wrong side of the road. As Jane was knocked out she couldn’t remember the accident. As a result Jane's husband could not take a common law claim for damages. We engaged a team of experts and forensically reviewed the accident scene and Police Report and discovered the contrary was true. We successfully obtained maximum compensation for Jane's husband and family.

Public liability and Medical Negligence claims

There is a three year limitation of action period in which to pursue a claim. There are some special circumstances where this time limit can be extended.

Please note the limitation period and, if you wish to proceed with a claim, please ensure that unequivocal instructions are provided to proceed. You should then maintain regular contact with Clark Toop & Taylor Lawyers to ensure that the appropriate steps are taken on your behalf.

The second important matter to note is that there are different thresholds and procedures which govern your rights:

1. To pursue compensation for pain and suffering and loss of enjoyment of life; and
2. To pursue compensation for economic loss/"out of pocket" expenses.

A. PAIN AND SUFFERING AND LOSS OF ENJOYMENT OF LIFE

To successfully proceed with a claim for pain and suffering/loss of enjoyment of life, it will be necessary for you, to establish:-

• That your injuries were due to the negligence of the other party; and
• For the Defendant to either concede or for you to establish that you have an impairment greater than 5% for physical injuries or greater than 10% for primary psychological injuries under the American Medical Association Guides to Impairment (4th Edition). [AMA GUIDES]

The onus of proof is on you as the Plaintiff to establish that there has been a breach of duty of care owed to you by the Defendant(s) * which has caused the injuries from which you now suffer and which will form the basis of your claim. *(Negligence)

Before we get to even argue the question of negligence, it is necessary for you to satisfy the 'gateway requirements' under the AMA Guides. Thus, your injury is required to be:-

• Substantially stabilised.
• A permanent impairment within the meaning set out in the Guides.

Initially, application is made to the Defendant(s) to either waive the AMA criteria or to accept our Certificate of Assessment. If the Defendant(s) do not accept that you reach the necessary criteria, it will be necessary for your matter to be referred to a Medical Panel which has been set up by the Government. Any assessment of the medical panel, in normal circumstances, will be binding and non-appealable.

B. ECONOMIC LOSS/”OUT OF POCKET” EXPENSES

In order to proceed with a claim for your economic loss/'out of pocket' expenses, you do not need to satisfy the AMA criteria/gateway. Thus, in order to be able to proceed with a claim for these losses, it is only necessary for you to establish negligence on behalf of the Defendant(s). There are however, statutory restrictions in respect to the nature of, amount of and calculation of the compensation which can be recovered on your behalf. Again, it is necessary for us to specifically discuss the particular circumstances of your case.