Common law compensation

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If you are seriously injured in a transport accident and someone else was at fault (or partly at fault), you may be eligible for common law compensation.

Common law compensation aims to recognise the impact the accident has had on your life.

We are here to help you understand what’s involved in seeking common law compensation.

We want you to receive the compensation you’re entitled to as quickly as possible, to help you get your life back on track.

What is common law compensation?

Common law compensation is also known as ‘common law damages’. It is a payment that recognises the long term impact the accident has on your life.

The compensation is for:

  • loss of past and / or future earnings, and
  • pain and suffering.

Compensation is paid by the TAC on behalf of the person, party or organisation who is at fault in the accident.

It is a separate payment in addition to any treatment and support services you may receive from us.

Can I claim common law compensation?

To be eligible for common law compensation:

  • someone else (another person, party or organisation) must be at fault (or partly at fault) and
  • your injuries meet the legal definition of a ‘serious injury’.

What is fault (or negligence)?

Being at fault (or negligent) means failing to take reasonable care to avoid causing injury or loss to another person. This includes ‘partial fault’ or ‘contributory negligence’, which is when more than one person, party or organisation is responsible for the accident.

Some common examples of a person being at fault are:

  • failing to give way at a stop sign
  • running into the back of another vehicle.

You can read more about fault or negligence in the fact sheet.

What is a ‘serious injury’?

‘Serious injury’ is a legal term defined in the Transport Accident Act 1986.

It may be a single significant injury, or a combination of injuries that contribute to an impairment of 30% or more. The injuries need to be as a result of your transport accident.

‘Serious injury’ takes into account both:

  • your injuries, and
  • the long-term impact of the transport accident on your life.

If you have a ‘serious injury’ and someone else was at fault in your accident, you may be eligible for common law compensation.

You can read more about 'serious injury' in the fact sheet.

The meanings of some of the words used in common law compensation are explained in the Definitions section.

Are you likely to be eligible for common law compensation?

Different examples that show whether you are likely to be eligible or not, are below.

Example 1: You may be eligible

  • If you have a ‘serious injury’ and someone else was at fault (or partly at fault).

Contact us directly, or engage a personal injury lawyer to act on your behalf.

Example 2: It is not clear if you are likely to be eligible (based on accident circumstances)

  • If you have a ‘serious injury’ and you were at fault
  • If you have a ‘serious injury’ and you are not sure who was at fault
  • If you are not sure if you have a ‘serious injury’ and you were at fault
  • If you are not sure if you have a ‘serious injury’ and you are not sure who was at fault

More information is needed to understand if you may be eligible for common law compensation. ­­

You need to engage a personal injury lawyer. They can provide you with independent legal advice about whether you are likely to be eligible.

Example 3: It is not clear if you are likely to be eligible (based on your injuries)

  • If someone else was at fault, and you are not sure if you have a ‘serious injury’

We need to understand the impact the injury has had on your life, to decide if your injury meets the legal definition of a ‘serious injury’.

You may need to attend a medical examination or share your medical information with us, to help us understand your injuries and the impact on your life.

You can contact us directly, or engage a personal injury lawyer to act on your behalf.

Example 4: You are likely not to be eligible

  • If you do not have a ‘serious injury’, and you, or someone else was at fault

If your injuries do not meet the legal definition of a ‘serious injury’ you are not eligible.

You can engage a personal injury lawyer at any time to advise you, based on your individual circumstances.

* Disclaimer: The examples above intend to provide a general indication of eligibility for common law compensation, based on the answers or scenarios you provide. It does not take into account your personal accident circumstances.

How do I claim compensation?

If you have a ‘serious injury’ and someone else was at fault, you may be eligible for common law compensation.

To claim common law compensation, most people engage a personal injury lawyer. The lawyer will act on your behalf to lodge a ‘serious injury’ application with us.

We recommend choosing a law firm that specialises in TAC claims and operates within the Common Law Protocols. The Protocols are an agreement that outlines how the TAC and your personal injury lawyer work together during your claim.

If you don’t have a lawyer or choose not to have one at this time, you can contact us directly to discuss if you are likely to have a ‘serious injury’.

Once a ‘serious injury’ application is lodged, we may need more information to help us decide if you are eligible. Sometimes we may ask you to attend medical examinations or we may need to look into the details of your accident.

If we decide you are eligible for common law compensation, you will need a lawyer to act on your behalf. They will negotiate an appropriate amount of compensation with us.

Once the compensation amount (which is called ‘settlement’), is agreed by you, your lawyer and the TAC, we can pay your common law compensation.

If we can’t agree on the settlement it can proceed to Court where a Judge will decide.

See the Process section for more detailed information on how to access common law compensation.

In some instances the process to access common law compensation can be straightforward. This is when another person, party or organisation is at fault and where you sustained a ‘serious injury’ in your transport accident.

Sometimes it is complex and can take more time. This is when it is not clear who is at fault, or if more information is needed to understand your injuries or the accident circumstances.

Many people choose to engage a personal injury lawyer to represent them through the common law process.

Below is an outline of key steps to access common law compensation after we receive a ‘serious injury’ application.

This does not take into account your personal situation or circumstances. You may like to contact us, or engage a personal injury lawyer for more information on how this applies to you.

Step 1: Understanding your injuries and accident circumstances

Do your injuries meet the legal definition of ‘serious injury’?

To help us understand if you have a ‘serious injury’ you may need to:

  • Provide us with information we ask you for
  • Attend medical examinations

We may also ask for information from your treaters to help us decide if you have a ‘serious injury’.

Your lawyer (if you have one) will:

  • Work with you to understand if you have a ‘serious injury’
  • Act on your behalf to seek a ‘serious injury’ decision from the TAC
  • Help you gather any information we need.

Was someone else at fault?

To help us understand who was at fault in the accident you will need to:

  • Provide us with information we ask you for
  • Engage a personal injury lawyer. They can provide independent legal advice on your role in the accident and how it may impact your entitlement to common law compensation.

If your role in the accident is unclear we might:

  • Independently investigate the accident circumstances
  • Have a view on the level of fault of everyone involved in the accident

Your lawyer will:

  • Advise if you are likely to be eligible
  • Act on your behalf and work with us on the next steps
  • Work with you if the TAC believes you may be at fault or partly at fault in the accident. They will look at the details of your accident and understand your situation.

Step 2: Deciding if you are eligible

We will decide if you are eligible, based on information provided.

To make this decision we will consider if you have a ‘serious injury’ and if someone else was at fault.

We will write to you or your lawyer (if you have one) with this decision.

If we decide you are eligible

If you are eligible and have a ‘serious injury’ we will give you a Serious Injury Certificate or confirm you have an impairment of 30% or more. This means you can engage a lawyer to progress your common law claim.

You need to:

  • Engage a lawyer (if you don’t already have one)
  • They can act on your behalf and start negotiations.

If we decide you are not eligible

  • You can ask a lawyer for advice on how to review our decision.

Step 3: Negotiation and settlement

You and your lawyer will negotiate with us to agree on your compensation amount.

In this final step, you will need to:

  • Work with your personal injury lawyer to negotiate the amount of your compensation
  • Attend a settlement conference with the TAC
  • Receive the compensation once the amount has been agreed.

We will:

  • Assess the amount of compensation you should receive
  • Attend a settlement conference to hear from you and your lawyer
  • Work with you and your personal injury lawyer to agree on the compensation amount.

Your lawyer will:

  • Assess the amount of compensation they think you should receive
  • Act on your behalf to negotiate with us on your compensation amount
  • Act on your behalf in Court proceedings if we can’t agree on the settlement
  • Attend your settlement conference.

Finding a lawyer

You need a lawyer to act on your behalf to negotiate and settle a common law compensation claim.

The Law Institute of Victoria provides a ‘Find Your Lawyer’ service. This service can help you find a lawyer and their contact details. You can call them on (03) 9607 9550 during business hours (Monday to Friday, 9am – 5pm) or visit www.liv.asn.au/find-a-lawyer.

You can access a free half hour consultation with your chosen law firm to discuss your potential claim. If you use a law firm to act on your behalf, you should ask about the costs involved.

We recommend choosing a law firm that specialises in TAC claims and operates within the Common Law Protocols.

Common Law Protocols

The Common Law Protocols are an agreement that outlines how the TAC and your personal injury lawyer work together during your common law compensation claim.

The Protocols were developed by the Law Institute of Victoria (LIV), the Australian Lawyers Alliance (ALA) and the TAC to make the legal process faster and easier. Most lawyers who are members of the LIV or the ALA follow them.

Engaging a lawyer who follows the Protocols will generally result in a faster and easier outcome for your claim. It is also likely your case will resolve without having to go to Court. This may also mean less legal costs for you.

Your lawyer will help you through the process and provide you with tailored and independent legal advice.

You are entitled to ask a lawyer if they operate within the Protocols before engaging them.

Find out more about the Common Law Protocols.

What compensation can I receive and how much can I claim?

Depending on your level of injury and how it has affected your life and work capacity, you can claim for loss of past and / or future earnings as well as pain and suffering. There are limits and caps to the amount of compensation you can claim. A personal injury lawyer can work with you to understand your unique situation and provide tailored legal advice.

The following is an indication of some common law compensation caps as at 1 July 2019.

Common Law

Amount

Threshold (minimum amount)

$55,840

Maximum Pecuniary Loss (loss of past and / or future earnings)

$1,257,290

Maximum Pain/Suffering

$558,760

Does common law compensation affect my other benefits?

We will continue to pay treatment and support services for your accident related injuries.

Payments that may be affected include:

  • impairment lump sum
  • impairment annuity benefits
  • loss of earning capacity benefit
  • non-earners benefits
  • minor's additional benefits and/or
  • any other compensation received under another Compensation Scheme (WorkCover/Interstate) in respect of the transport accident as specified under the TAA (1986).

If you receive Government entitlements or benefits (e.g.Centrelink payments) you should contact them to find out if compensation may affect these.

The TAC or your lawyer can advise you how common law compensation may affect your other payments.

When should I lodge a common law compensation claim?

In most cases you need to start your common law compensation claim within six years of the date of the accident.

If you are under 18 years of age at the time of the accident you have six years from when you turn 18.

In exceptional cases, the Court may grant an extension of time.

Due to the information that needs to be gathered and assessed, your claim process can take time. If you think you may be eligible, we recommend starting your claim as soon as possible.

How long does it take to receive compensation?

Once a common law claim is lodged, the average time frame to settle a claim is 12 months. A straightforward case can take a few months, where a more complex case can take two or more years to settle.

Why does an injury need to be stable?

To assess your injury as a ‘serious injury’ and to claim common law compensation, your injury needs to be reasonably stable. This means your injury is unlikely to improve or decline over time.

It may take time for your injuries to stabilise, especially if you will have further surgery or ongoing treatment.

A medical practitioner can determine if your injuries are stable.

What is an impairment rating?

An impairment rating is determined on the degree that your injury affects your function or movement.

An independent, specialist doctor will assess your injuries. They will check the function or movement of the injured area and provide a report about your injuries.

What if I can’t identify the person, party or organisation who was at fault?

If you've been involved in an accident but can't find the at fault driver, you may still be eligible for a common law claim.

A personal injury lawyer can provide you with independent legal advice about your situation.

Why does the TAC pay and not the person, party or organisation who was at fault?

When you register your car in Victoria, you pay a transport accident charge. The TAC charge covers any liability of a person at fault in a transport accident.

What if the at fault person, party or organisation was not insured?

If the at fault person, party or organisation was uninsured (e.g. they have not paid the TAC charge as part of their registration), this will not affect your claim. We will still pay common law compensation to you if you are eligible, to help you get your life back on track.

Do I need a lawyer?

There is no legal requirement to engage a lawyer for the TAC to consider your eligibility for common law compensation, although most clients do. You will need a lawyer for the negotiation and settlement of the compensation.

We recommend choosing a law firm that specialises in TAC claims and operates within the Common Law Protocols. The Protocols were established to effectively deal with common law compensation.

What if I can’t afford a lawyer?

You can access a free half hour consultation with the law firm you choose where you can discuss possible costs.

If you have a successful common law claim, we may pay some of your legal costs directly to your lawyer. This payment may not cover all costs so it is important discuss costs with your lawyer.

What if the person claiming compensation dies during the process?

If a person dies after receiving a Serious Injury Certificate or an impairment rating of 30% or more, their family or estate can seek common law compensation.

If a person dies before receiving a Serious Injury Certificate or an impairment rating of 30% or more, the family or estate cannot seek common law compensation.

If the death occurred as a result of the accident, the family or estate may still be able to access no-fault benefits. These could include costs such as funeral services, in addition to any common law compensation they are eligible for.

These are some of the words and terms that relate to common law compensation.

At fault (or negligence / negligent)

At fault (partly at fault or negligence) is the failure to take reasonable care to avoid causing injury or loss to another person. In simple terms, it means being responsible for, or causing the accident.

Certain conditions must be met to prove fault, including that:

  • there is a duty of care to be upheld
  • there was a breach of the duty of care
  • you suffered damages, and
  • the damage was caused by the breach of duty of care.

Breach

Breach is the act of breaking a law or a responsibility.

Contributory negligence

Sometimes there may be more than one person, party or organisation who have contributed to the accident. This is called ‘contributory negligence’ or ‘partial negligence’.

Damages

Damages describes the harm to a person which impairs their normal function. It also describes the sum of money awarded in compensation.

Duty of care

Duty of care is a legal responsibility to not cause harm to others.

Impairment

An impairment is a permanent physical or psychological condition caused by your transport accident injury. Examples of a permanent impairment may include:

  • multi-level spinal fusion
  • reduction of the range of motion in multiple joints
  • joint replacement with a poor outcome.

Liability

Liability means being legally responsible for something. For example, the at fault person, party or organisation is liable for your injuries because they caused the accident.

Pecuniary loss damages  

Pecuniary loss damages means compensation for any loss of earnings, loss of earning capacity, loss of value of service or any other pecuniary, or financial loss.

Originating motion

An originating motion is a Court proceeding available to you if the TAC deems your injury as not serious.

  • If you have a lawyer who participates in the Protocols
    After you provide us with information about the accident, your injury and the impact of your injury, if we deny your ‘serious injury’ application, you can meet and / or talk with us to discuss your issues and personal situation (this is called a conference). If you’re unhappy with the outcome of the conference, your lawyer can file an originating motion on your behalf. This starts the legal process to dispute the TAC’s decision.
  • If you don’t have a lawyer
    After you provide us with information about the accident, your injury and the impact of your injury, if we deny your ‘serious injury’ claim, you will receive a call or letter outlining how we came to our decision. If you’re unhappy with the explanation, you should engage a Protocols lawyer who will contact us to discuss options to review the decision.

Pain and suffering (also known as general damages or pain and suffering compensation)

Pain and suffering is defined in the Transport Accident Act 1986. It means compensation for pain and suffering, loss of amenities of life or loss of enjoyment of life.

‘Serious injury’

‘Serious injury’ is a legal term. It is defined in the Transport Accident Act 1986 as:

  • serious long-term impairment or loss of a body function; or
  • permanent serious disfigurement; or
  • severe long-term mental or severe long-term behavioural disturbance or disorder; or
  • loss of a foetus.

A ‘serious injury’ may also be a permanent impairment of 30% or more.

Writ

A writ is a Court process to dispute the amount of common law compensation you receive from us.