Published: 18 April 2017
Author: Richard Derks
TAC quadriplegic misses out on accommodation costs
Supreme Court decision: DLZ v TAC (2017)
A decision by the TAC to deny additional compensation to a 15-year old boy made quadriplegic as a result of a horrific road accident has been upheld on appeal by the Victorian Supreme Court.
The boy and his mother are now expected to be burdened with the cost of providing accommodation for the equipment and full time carers to keep him alive.
This decision highlights the need for urgent reform of transport accident legislation by the Victorian Government.
How the road accident occurred
The young boy, who was 12 at the time, had been a pillion passenger on a motor cycle with his father when struck from behind by a 4-wheel drive vehicle.
The boy was thrown some 20 metres, landing heavily on the ground. On arrival, ambulance crews found him in cardiac arrest, but he was successfully resuscitated, and transported to hospital. Tragically, he was found to have extensive spinal injuries rendering him quadriplegic.
While he is conscious and alert, the boy is dependent on a respirator for his breathing. He has no voluntary bowel or bladder function, and can’t speak.
As a result of his injuries, he is required to be accommodated in premises that have sufficient rooms to house himself, his mother, a full-time carer and equipment that is necessary to keep him alive.
This burdened the family with the additional rental costs, which the TAC decided not to compensate. On behalf of her son, the mother appealed the TAC’s decision at VCAT where it was turned down. It was for that reason that the boy and his mother decided to challenge that decision by going to the Supreme Court.
Why the TAC decided not to pay accommodation costs
If an injured person is placed in a facility the TAC will pay the bed fee because it is part and parcel of the treatment. The TAC decided not to pay for the extra accommodation costs because it argues that accommodation is a need common to all members of society.
This is unfair because this boy requires 24 hour care, which means that the carer is required to be accommodated and the equipment needs to be stored. These expenses are not incurred by members of the community generally.
What the Supreme Court decided
In his ruling Judge Kaye decided that VCAT, in denying the initial appeal against by the plaintiff against the TAC, had made the correct decision in determining that the additional accommodation costs associated with the boy’s care did not constitute medical, disability or rehabilitation services purposes of s 60(2)(a) of the Act.
The decision is likely to put enormous financial strain on the boy’s mother and family who will now have to meet the rental expenses themselves.
This seems to have been appreciated by the judge who said he arrived at his conclusion, "with regret".
He went on to say that: “hard cases, such as these, highlight deficiencies in the law. The plaintiff is appallingly disabled, through no fault of his own. It is most regrettable that the legislation, as currently formulated, does not provide to him... the additional accommodation expenses... vital to his ongoing survival.”
The legislation as it stands is an affront to our sense of justice.
The Victorian Government must amend the transport accident legislation in order to make sure that severely injured road accident victims requiring this level of care are never abandoned in this fashion again.