Transport Accidents

Policy

Under the Transport Accident Act, a person injured as a result of a transport accident may be entitled to compensation.

A "transport accident" is defined as an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram. To be entitled to compensation the person's injury must also be directly caused by the driving of a motor vehicle, a railway train or a tram.

Transport Accident Act 1986 reference: s.3 'transport accident' s.3(1A) and s.35

Definitions

In this policy, Motor vehicles include motor cars, motor cycles, trucks and buses that are used, designed or intended to be used on a highway.

Under the Road Safety Act, a motor vehicle does not include:

  • a railway train or tram
  • a motorised wheelchair capable of a speed of not more than 10 kms per hour
  • a golf cart, golf buggy or ride on mower that is mainly used outside the road system (and not for travelling more than 2 kms at a time when on a highway in the one direction) and is being used for the purpose for which it is manufactured
  • self propelled vehicles, designed to be controlled by a person walking with the vehicle or a pedal cycle with a motor with an output not exceeding 200 watts
  • a self propelled vehicle used for construction that travels less than 10 kms per hour
  • an electronic scooter with an output of less than 200 watts that travels at a maximum speed not exceeding 10 kms per hour.

Transport Accident Act 1986 reference: s.3 'motor vehicle' 

How does the TAC determine whether a motor car, motor vehicle, train or tram is being driven?

The Transport Accident Act 1986 defines a driver as "a person who is in charge of a motor car or motor vehicle".

A motor car, motor vehicle, train or tram is being driven if a person manages and directs the course of the movement by operating the controls. This can include starting, accelerating, steering and braking.

To be in control of the motor car, motor vehicle, train or tram, the person must be in control of the ignition, gear selection and acceleration of the motor vehicle, train or tram.

How does the TAC determine whether an incident has been directly caused by the driving of a motor car, motor vehicle, train or tram?

The TAC will determine what, if any, feature of the driving of a motor vehicle, train or tram directly caused the incident in which the person was injured or died.

Some of the features of driving include the speed of the motor car, motor vehicle, train or tram , the inattention with which the motor car, motor vehicle train or tram is driven or the place to which a motor car, motor vehicle, train or tram is driven. These features also include the bringing of a motor car, motor vehicle, train or tram to a standstill and doing what is necessary to keep it at a standstill. In the case of a motor car or motor vehicle this can include stopping, placing the vehicle in park, securing the handbrake and turning off the engine. In the case of a railway train, tram or bus this also includes the opening or closing of the train, tram or bus doors (applies to all transport accidents occuring on or after 19 November 2013).

A person may be injured as a result of a transport accident without a collision or any other physical contact between the injured person and the vehicle occurring. However, the incident resulting in the person's injury must be directly caused by the driving of the vehicle.

How does the TAC determine whether an injury has been directly caused by the driving of a motor vehicle, train or tram?

The TAC will determine if an injury was directly caused by a feature of the driving of a motor vehicle, train or tram. Refer to 'How does the TAC determine whether an incident has been directly caused by the driving of a motor car, motor vehicle, train or tram?' in this policy.

Does it matter who is at fault in the transport accident?

The TAC is a 'no fault' scheme, which means that a person's entitlement to compensation is not affected by who is at fault.

Will the TAC accept a claim where a client has died after the transport accident?

The TAC will accept a claim for dependency benefits and burial or cremation expenses when a client dies after a transport accident where the injuries sustained by the deceased were directly caused by the driving of a motor vehicle, train or tram and those injuries caused the deceased's death. Refer to the Dependency Benefits policy.

What if a person is injured in an incident involving a motor vehicle, train or tram that is out of control?

Where a person is injured as a result of an incident involving an out of control motor vehicle, train or tram, the Transport Accident Act 1986 deems the person to have been injured in a transport accident.

A motor vehicle, train or tram is out of control when, for example:

  • the course of its movement has ceased to be managed and directed by the operation of the controls, or
  • while stationary, its brakes have failed and the motor vehicle, train or tram runs away, or
  • it has been struck by another vehicle and it has moved off out of control.

Does the Transport Accident scheme cover motor vehicle accidents involving cyclists and stationary motor cars or motor vehicles?

A cyclist will not be entitled to compensation pursuant to the provisions of the Transport Accident Act 1986 where that cyclist collides with a stationary motor car or motor vehicle, unless the collision occurred whilst the cyclist was on a journey to or from work (effective from 7 December 2000).

A cyclist will be entitled to compensation pursuant to the provisions of the Transport Accident Act 1986 where that cyclist is injured in a collision with an open or opening car door.

A cyclist involved in a transport accident will be entitled to compensation where there has been no collision with a motor car, motor vehicle, train or tram provided the incident and the injury was caused by a feature of the driving. For example, a cyclist swerves to miss a car that pulls out in front of him or her and in doing so, he or she falls off the bike and is injured.

Is a person entitled to benefits if he or she sustains an injury as a result of road rage?

The TAC will not pay benefits where a person sustains an injury as a result of a "road rage" incident and where the injury sustained is not also directly caused by a feature of the driving of a motor vehicle. For example a person who suffers a neck injury as a result of another person violently ramming the car he/she is driving will be injured as a result of a transport accident. Where the person is injured when hit by a club lock wielded by another driver, that person is not injured as a result of a transport accident. See also the Victims of Crime Assistance Tribunal website.

Is a person rendering assistance to someone injured in a transport accident entitled to compensation, if he or she is injured whilst rendering assistance?

A person rendering assistance may be entitled to compensation dependent upon whether or not he/she has sustained an injury as a result of an incident directly caused by the driving of a motor car or motor vehicle, a railway train or tram. See also Eligibility for Benefits policy.

Transport Accident Act 1986 reference: s.3 and s.35