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Making a Successful TAC Claim
No-fault benefits and medical expenses
If you have been injured in a car, truck, motorbike or public transport accident – or as a cyclist or pedestrian in an accident involving a vehicle – you are entitled to some benefits regardless of who caused the accident. These are called ‘no-fault benefits’.
In Victoria, the TAC must also pay for the reasonable medical expenses of road accident victims, as well as income support for up to three years if a person cannot work due to injuries suffered on the roads. You have a right to medical expenses and wages even if you were at fault for the accident. You may also be entitled to a lump sum ‘impairment benefit’.
Medical expenses for road accidents
Traditionally, the TAC would not start paying for medical expenses until the injured person had reached a ‘medical excess’ amount of over $500. The great news is that the government recently abolished the medical excess law and now the TAC must pay a claimant’s reasonable medical expenses straight away. This includes ambulance, hospital, X-rays and surgery, as well as treatment from specialists, such as physios, psychologists and rehabilitation physicians.
The TAC is also responsible for funding equipment and services to assist in your rehabilitation, including wheelchairs, home help, gym memberships and expenses incurred travelling to and from medical appointments.
The law states that the TAC must pay the reasonable cost of such expenses, but the TAC will often argue that the treatment is not necessary or that it does not have to pay the full cost because your doctor is charging more than a reasonable amount. The result can be additional financial strain on you, the injured road victim.
If the TAC has made a decision not to fund your treatment, or not to cover the full cost, call us immediately as you only have 12 months to challenge the decision. If you engage us to stand with you, we can ensure that the TAC does not short change you and that you are not out of pocket for any those expenses which are reasonable and necessary for your recovery.
Loss of earnings as a result of a road accident
If you cannot work because of your transport accident injuries, you are entitled to claim loss of earnings benefits from the TAC. This is another ‘no-fault’ benefit which is payable regardless of who caused the accident. It doesn’t matter if you were employed full-time, part-time or on a casual basis. Even if you were not employed at the time of the accident, you could be entitled to loss of earnings benefits if, for instance, you had accepted an offer of employment or had worked in the year prior to the accident.
The TAC does not normally cover you for the first five days off work so if you have sick leave entitlements, you can use them for the first week of being unable to work. After that and while you continue to submit medical certificates stating that you are fully or partially unfit to work, the TAC should pay you 80% of your gross income (up to a maximum of $1,350 per week).
Income support (known as loss of earnings or loss of earning capacity benefits) can be paid for up to 3 years after the accident, and longer if you are severely injured (i.e. if your level of permanent impairment is greater than 50%).
Disputes in TAC compensation claims
Disputing a TAC assessment
Often, road accident victims run into difficulties with loss of earnings assessments. The TAC may incorrectly calculate the entitlement, resulting in the injured person being shortchanged. Or the TAC may disagree with your doctor and cut off support on the basis that you can return to work – even if you have been given medical advice that you cannot.
If the TAC makes a decision that is unfair, one of our expert transport accident compensation lawyers can help you take a stand and the decision overturned. However, you only have twelve months from the date of any decision to challenge it, so it is important to seek legal advice straight away.
What if the TAC denies liability?
The TAC will often seek to deny liability for some or all of the injuries which a person suffers in the accident. For example, the TAC may send you a letter stating that it has determined that you suffered from a pre-existing injury or condition and for that reason, you are not entitled to the TAC benefits for the claimed injury. However, the TAC is liable for aggravations to pre-existing conditions, as long as it can be established that the transport accident caused the aggravation.
There are a number of things you can do to protect your interests:
- Make sure that you mention all injuries sustained in the accident when you make your initial claim with the TAC. If you have any pre-existing conditions which have been aggravated in the accident, these should be disclosed too.
- Report all injuries (both physical and mental) to your treating medical practitioners as soon as possible after the accident. It is not uncommon for the TAC to obtain the records of your doctors to verify your injuries.
- Contact us early so that we can stand by you if the TAC seeks to deny liability for any injuries which you have sustained.
Do you have to go to Court to claim compensation for a road injury?
Attending Court should only be necessary during a TAC claim if the TAC disputes your eligibility for compensation under the TAC scheme.
Standard TAC Scheme impairment claims
Regardless of who caused the accident, if you are left with permanent injuries, you could be entitled to a lump sum. Under the TAC scheme, if your level of permanent impairment from the accident is over 10%, you are entitled to a payment of compensation. Permanent impairment includes physical restrictions, psychological impact and scarring.
Often road accident victims are unaware that they are entitled to this lump sum, as the TAC does not tell them about the benefit. You do not need to go to court for an impairment benefits claim, but it is important that you have an expert TAC lawyer on your side to make sure that your injuries are properly assessed and you receive your full entitlement. At RCT, we have vast experience in impairment benefits claims and can help you make a stand to get what you deserve.
TAC Common Law claims - larger lump sum benefits
If the accident was caused by somebody else, you may be entitled to make a common law claim in addition to receiving the TAC ‘no-fault benefits’.
The accident is not your fault
A common law claim is where you sue the person who negligently caused the accident. As the insurer, the TAC must pay out damages on behalf of the person who was at fault. There are often arguments about who caused an accident. The TAC will try to prove that the accident was totally, or partially, the fault of the injured person in order to minimize the amount that they have to pay in compensation. This is why it is important to consult an expert RCT road injury lawyer as soon as possible so that they can fully investigate the circumstances of your accident.
When it comes to common law claims, the TAC is not on your side – the TAC is your opponent. The TAC may conduct surveillance on you, scrutinize your social media accounts, or send out a private investigator to talk to you about the accident. It is vital that you make a stand to protect your interests: you can do this by engaging RCT to stand with you.
Serious Injury Certificate
In Victoria, it is not enough to prove that the accident was someone else’s fault in order to bring a common law claim. You must also establish that you have a ‘serious injury’. The law states that a ‘serious injury’ is an impairment of 30% or more or an injury which has very considerable consequences for the injured person. Sometimes the consequences are that the injured person is unable to work in their usual employment. However, an injury can have serious consequences even if it doesn’t affect a person’s work capacity – for instance, if it prevents the person from playing football or enjoying time with their family.
In order to obtain a ‘serious injury certificate’, it is necessary to prepare and lodge a detailed application with the TAC. RCT's lawyers are skilled in preparing such applications, giving you the best chance of obtaining leave to make a common law claim. The team at RCT also has vast litigation experience, so if the TAC refuses your serious injury application and you need to make a stand in court, RCT will stand with you.
Pain and suffering
Once you establish that the accident was not your fault and you have a ‘serious injury’, the question is: how much compensation are you entitled to? In a common law claim, you can claim damages for pain and suffering. The amount awarded for pain and suffering depends on the severity of the injury and the impact that it has had on the person’s life. The maximum amount currently payable for pain and suffering in Victoria is $547,550.
Clearly, it is in the interests of the TAC (the insurer) to minimize the amount it pays out for pain and suffering. At RCT, we will prepare your case thoroughly by obtaining detailed evidence about the impact the accident has had on your life. We are tough negotiators who will work to achieve a fair settlement without having to go to court, but if the TAC is refusing to pay you what you deserve, we will stand with you in court to win your case.
Loss of earnings
As part of your common law claim, you can also claim for past and future loss of earnings. This amount can be very significant if your injury has restricted or destroyed your capacity to work and further your career. The maximum amount currently payable for loss of earnings damages in Victoria is $1,232,060. The TAC will try to minimize your economic loss claim by downplaying the extent of your injuries or trying to obtain damaging surveillance footage of you going about your daily life. RCT lawyers will protect your interests and maximize your claim to help secure your financial future.
Don’t let Facebook kill your TAC claim
We are seeing Facebook used in evidence in a growing number of injury cases that do go to court for compensation.
It is common for the legal team acting for the TAC or an insurer to try to cast doubt on the plausibility of the plaintiff's testimony. Increasingly, we are finding that opposing lawyers are requesting access to a client's Facebook pages as part of the pre-trial access to relevant evidence, although often this material is accessible to anyone who has some technical ability with the internet.
Innocent photos posted on a Facebook page of you enjoying a BBQ with some friends could be used in a trial to suggest you are exaggerating the seriousness of your injury and to cast doubt on the credibility of your testimony.
If you wish to continue using social media, we can advise you on how to do this without running an undue risk of having innocent content used against you in court.
In Victoria, the time limit to bring a common law claim is 6 years. However, a common law claim cannot be made unless the person has an accepted TAC claim, which was lodged within 12 months of the accident date. In certain circumstances, it can be possible to obtain an extension of time to bring a common law claim, so it is never too late to seek our advice about your rights. But to protect your interests at every turn, it is wise to seek advice as soon as possible after the accident and have RCT stand with you throughout the journey of your TAC claim.
Has the TAC asked you to attend a Conference?
Recently, the TAC has been writing to some claimants enclosing a ‘serious injury certificate’ and inviting them to attend a conference with the TAC to discuss their common law claim, without obtaining their own legal representation. This is deeply concerning. It is important to remember that the TAC is an insurance company. Its interests are not the same as yours. If you receive correspondence from the TAC inviting you to meet with them, it is vital that you contact RCT immediately so that we can stand with you and ensure that your claim is maximized, not minimized by the insurer.
When a family member dies in a transport accident, the TAC pays a number of benefits to assist the family.
The TAC contributes the maximum amount of $15,230 towards the cost of a funeral, including burial, cremation and monument. The TAC must also pay the travel expenses of immediate family members who live more than 100km away so that they can attend the funeral. The TAC pays for family counselling services, to assist the spouse/partner, children and siblings of the deceased in dealing with the traumatic experience.
Any family member who is diagnosed with a mental injury or psychiatric condition as a result of the death is also eligible to lodge their own TAC claim. This allows them to access medical benefits, income support and if their condition is permanent and severe, possibly lump sum compensation. As a 12-month time limit applies, it is important that the family member lodges their claim as soon as possible after the accident.
If your partner or parent has died in a transport accident, and you were financially dependent upon them, you are eligible for a lump sum payment as well as an ongoing weekly payment which is based on the deceased earnings.
At RCT, we understand the trauma of losing a loved one. Our sensitive and compassionate team can take care of the legal issues arising from a death on the roads, to minimize stress on the surviving family.
Starting a TAC legal enquiry with us - first steps and fees
For information on how to contact Ryan Carlisle Thomas, fees, and what to expect at your first meeting, click here.
Road Injury And TAC Claims FAQs
As a general rule, the younger you are, the more you’ll get. For example, in a common law claim, A 20-year-old with an amputated finger would receive a higher compensation payment than a 60-year-old.
2. Tolerance For Risk In Court
The best chance at obtaining maximum compensation is before a judge or jury, rather than a settlement beforehand. But you also run a higher risk.
3. Injury Type
A legacy of pain and suffering is factored into TAC Common Law cases. But the level of pain and suffering differs from person to person. Eg, the effect of debilitating leg injury on a career marathon runner will be greater than that for someone else.
4. Source Of Fault
How clear is culpability? If a drunk driver swerves across the road and hits a car and injures innocent parties, the issue of who is at fault is not in question. But what if the injury occurs in circumstances where there are witnesses that have a different recollection of how the injury occurred?
5. Size Of Economic Loss
In a TAC claim, someone that has a track record of earning $100,000 a year is going to have a much more significant economic loss claim than someone who was earning $40,000 a year, assuming that their incapacity from the injury was the same.
6. Future Job Prospects With The Injury
An injury might have stopped you working for a period of time, but it doesn’t necessarily mean that you won’t work again. How much you will receive in compensation for future economic loss will depend very significantly on your post-injury capacity for work.
The Protocols are an agreement between the TAC, Law Institute of Victoria (LIV) and Australian Lawyers Alliance (ALA) which provide for a system to resolve ‘no fault’ dispute, impairment claims and common law claims without going to court. RCT has been operating within the Protocols for over 10 years, and we use our expert negotiation skills to ensure that many of our clients receive their full compensation entitlements quickly, efficiently and with minimal stress, never having to step foot in a courtroom.
If the TAC is refusing to pay you what you deserve under the Protocols system, we will have no hesitation in advising you to make a stand in court. And we will stand with you every step of the way to make sure you receive the best possible outcome in your TAC compensation claim.