A Guide to the Victorian Transport Accident Scheme.
Please be aware that the advice given here is of a general nature, and we recommend you consult us to discuss the particular aspects of your claim.
- Outline of TAC Scheme
- Making a Claim
- Medical Expenses
- Income Benefits
- Permanent Impairment
- Common Law (Fault) Claim
- Death Benefits
- Disputing a TAC Decision
Outline of TAC Scheme
This is a broad outline of the Transport Accident Commission (“TAC”) scheme. For more information on each topic, please click on the links above.
TAC administers a no fault scheme which provides benefits for people injured in transport accidents. The benefits provided by the scheme fall into three categories:
- Income replacement (weekly payments), paid if you cannot work because of your injury.
- Medical and like expenses, paid for medication, treatment, physiotherapy, travel, etc.
- Permanent impairment benefit.
Making a Claim
You must call TAC directly to lodge a claim on 1300 654 329.
If your accident was not attended by Police and you were injured, you must also report the accident to your nearest Police Station.
We can assist in advising you and walking you through this process.
Common Law (Fault) Claim – Lump Sum
A common law claim seeking damages for pain and suffering and/or lost income may be made if:
- Someone else has caused your injury; and
- You have a “serious injury”.
This claim may also be made if the accident has caused the death of a person, but can only be made by those dependent financially on the deceased person.
If a person dies as a result of a transport accident, their dependants may be entitled to benefits in these categories:
- Lump sum payment
- Weekly pension
- Funeral expenses and counselling
- Housekeeping and child-care services
Disputing a TAC decision
If TAC make a decision you are not happy about, you can ask for an internal review or you can go to the Victorian Civil and Administrative Tribunal (“VCAT”) to try to resolve the dispute. You must go to VCAT within 12 months of the decision being made.
An application to the County Court will be necessary if you make a Common Law claim.
Making a Claim
Who can make a claim?
You can make a TAC claim if you are injured in a transport accident. A transport accident is an accident caused by the driving of a car, motorcycle, bus, train or tram.
Pedestrians and cyclists injured in a transport accident are also covered by the scheme.
How do I make a claim?
To make a claim you should:
- Report the transport accident to the Police
- Contact the TAC on 1300 654 329 and they will walk you through a claim form over the phone.
If you are claiming compensation for time off work, you will need a medical certificate from your doctor, and proof of your earnings. You will need to continue to send medical certificates to TAC as long as you cannot work.
You must pay for your initial medical treatment, up to an amount called the excess, unless you were admitted to hospital as an inpatient. You can claim the excess from Medicare where appropriate.
When you have reached the excess, you need to complete a medical excess declaration form (available from TAC) which details the treatment you or Medicare have paid for.
You can claim all reasonable medical expenses related to your injury. Medical services must be provided by a TAC accredited provider.
You can also claim for travel expenses when you see your own treating doctors and when you are sent to doctors by TAC.
You may also claim for home help, help in the garden or for modifications to your home and car, where necessary. You should discuss these needs with your doctor, who can provide a letter to TAC setting out your needs.
If you are the parent of a child injured in an accident, TAC will pay reasonable travel costs for you to visit your child in hospital and may pay for your reasonable accommodation costs.
If you are staying overnight at a hospital, TAC may pay for your spouse and children to visit you. To qualify, they must live more than 100 kilometres from the hospital. If they do, TAC will pay for their reasonable travel and accommodation costs.
TAC is required to help you design a rehabilitation and return to work plan, preferably with a rehabilitation provider. You must take all reasonable steps to participate in rehabilitation and return to work. If you do not, your benefits can be stopped.
Income Replacement Benefits
Your first five days off work cannot be claimed from TAC. After that, if you are an earner you can receive payment for time off work due to your injuries.
You may be an earner even if you were not working at the time of the accident, but had worked over the previous two years. You should seek legal advice as to whether you are an earner, if in any doubt.
First 18 months after the accident – Loss of earnings benefits
If you are totally unable to work, you should be paid 80% of your pre-accident weekly earnings.
If you are suffering a partial loss of earnings, you should receive 85% of the difference between your pre-accident earnings and your current earnings.
After 18 months – Loss of earnings benefits
If you are still unable to work after 18 months, TAC should continue to pay you as previously but based on loss of earning capacity, which may not be the same as your pre-injury earnings.
If you are not an earner but still cannot work 18 months after the accident, you may be eligible for loss of earning capacity payments, but calculated under a different formula.
After three years
If you cannot work after three years, you will only receive loss of earnings payments from TAC:
- if you are assessed as having an impairment of 50% or more, and
- you are unable to work or have a reduced earning capacity.
Remember, you must keep lodging medical certificates from your doctor with TAC to continue to be paid.
The only other way to receive compensation for being unable to work is by making a Common Law (Fault) claim.
What happens If I have been drinking?
Your rights to compensation may be affected by being reduced or not payable at all:
- If you have been drinking before the accident;
- If you have committed certain driving offences;
- If your licence is cancelled, suspended or you have never held a licence;
- If you were part of a race or trial;
- If you were committing a serious offence
Permanent Injury – Impairment Benefit
If you are assessed as having more than a 10% permanent impairment, you will receive an impairment benefit.
TAC will generally not assess you for this benefit before 18 months after your accident. TAC will not necessarily assess you for this benefit and you ought to consult us to discuss your entitlement. If you are not happy with TAC’s decision, you should consult us immediately. You only have 12 months to challenge TAC’s decision.
This assessment is also important in establishing whether you have a serious injury.
Common Law (Fault) Claims
- A common law claim is a claim made when you can show that fault or “negligence” on the part of another driver or some other person has caused your injury.
- A successful common law claim results in a payment of a lump sum called “damages” to you.
- Your injury must be considered to qualify as a “serious injury” before you can claim common law damages.
- The process of showing you have a serious injury begins with an assessment of your permanent impairment.
- If you permanent impairment is 30% or more (this is quite rare), you will automatically qualify with a serious injury.
- If your permanent impairment is less than 30%, and you want to claim common law damages, you will need to apply to TAC for a serious injury certificate.
A serious injury is defined as:
- long term serious impairment or loss of a body function; or
- permanent serious disfigurement; or
- severe mental or severe behavioural disturbance or disorder; or
- loss of a foetus.
If TAC will not grant you a serious injury certificate, we can appeal this decision in the County Court.
Once you have proved your serious injury, we must negotiate with TAC for the appropriate payment of damages to you. If negotiations fail, we will go to Court for you.
Damages have two components:
General Damages are paid for pain and suffering and loss of enjoyment of life. If you can show that you have a permanent serious injury, you can claim general damages for pain and suffering, even if you are still working.
Loss of Wages – You can claim a lump sum for past and future loss of wages if you have a serious injury.
Once you receive a lump sum for lost wages, your weekly payments of compensation will stop.
If you receive a lump sum, whether for lost wages or for pain and suffering, you are still entitled to payment of medical benefits.
If a transport accident has contributed to the death of a person who was an earner, the dependents of the deceased person can claim benefits.
Earner includes a person receiving Centrelink benefits for 26 weeks of the two years prior to the accident.
- A lump sum to be divided between a dependent spouse and dependent children;
- A weekly pension for dependents payable for five years or until all dependent children have turned 16. If any child is a full-time student, the pension will continue so long as the child is a student or until age 25, whichever occurs first;
- Family counselling by a doctor or psychologist;
- Reasonable costs for burial or cremation;
- If the deceased person provided housekeeping or child-rearing services to the family, the reasonable cost of providing those services for five years will be paid.
If death has been caused by negligence (fault) or another person, the dependants may sue for damages. You will need to see a lawyer.
Disputing a TAC Decision
If your claim is rejected, your benefits stopped or there is some other decision you are unhappy about, we can:
- Seek an internal review from TAC
- Apply to the Victorian Civil and Administrative Tribunal (“VCAT”) to try to resolve the dispute. You must apply to VCAT within 12 months of the decision being made.
Always seek legal advice about a TAC decision.
Legal costs can be expensive, but we will do all we can to help. What we can do includes:
- Free first interview
- No charges until you win (in approved cases). Please discuss what this means at our first interview.
- Paying for medical reports, court fees, and other expenses (in approved cases).
We will discuss costs in detail with you at our first interview. We will always answer your questions about costs. We will clearly advise you of the total costs when you come to settle your claim.