Claims for Common Law Damages
A claim for common law damages may be lodged for injury or death as a result of:
- a "transport accident" ; or
- an 'accident' that does not fall under the definition of a "transport accident", but which arises out of the use of a vehicle. Transport Accident Act 1986 references: s.3, s.94(1)
The TAC will not indemnify a driver/owner of an 'uninsured vehicle'. If the vehicle is 'uninsured', the TAC may pay the common law claim, but may then attempt to recover the money from the driver/owner. Refer to the section on the Indemnity provided by the Transport Accident Charge and also to the Overpayments and Recoveries policy for further information.
Transport Accident Act 1986 references: s.104(1), s.96(1), s.96(3)
In order to bring a common law claim in relation to an injury sustained as a result of a Victorian transport accident, a claimant must either:
(a) have his/her level of impairment determined at 30% or more; or
(b) obtain a Serious Injury Certificate (SIC) from the TAC.
In the event that the TAC refuses to grant a SIC, the claimant may apply to the County Court for permission to bring a common law claim.
A SIC (or permission from the Court) is not required for accidents which do not fall under the definition of a 'transport accident' but which arise out of the use of a vehicle. In addition, a SIC is not required for a claim by dependants for damages under the Wrongs Act 1958 (as referred to above).
A claim for damages will only succeed where negligence can be established. Negligence is a legal term. It is recommended that a claimant seek legal advice regarding whether they are likely to be able to prove negligence. If negligence is proven, damages may be awarded. Any contributing negligence on the part of the claimant may reduce the amount of damages they receive.
In relation to common law claims from transport accidents, the TAC's role is to:
- decide whether to issue a Serious Injury Certificate (SIC);
- investigate accident circumstances;
- cover the costs for a negligent driver/owner whose registered Victorian vehicle causes injury or death to a third party;
- be committed to working with all parties to resolve common law claims in accordance with the Common Law Protocols and Model Litigant Principles. See the TAC Protocols Legal Costs and the Legal costs recovery guidelines for further information.
- "claimant"- is a person who seeks to claim damages as compensation for the pain and suffering, loss of enjoyment of life and/or pecuniary loss they claim to have suffered as a result of the negligence of a driver/owner of a Victorian registered vehicle.
- "indemnity"- is the cover provided to the registered vehicle's owner/driver. The transport accident charge is paid by the owner of a Victorian vehicle when the registration of the vehicle is due each year. It covers the driver/owner for any liability in respect of injury or death resulting from a transport accident or accident arising out of the use of the vehicle. To be "indemnified" means to be 'insured'. Transport Accident Act 1986 references: s.94(1), s.94(2B)
- "to be unindemnified"- is when no transport accident charge has been paid to cover the transport accident. In such cases, the TAC is not liable to indemnify the driver/owner of the vehicle for any liability in respect of the injury or death caused by the vehicle. To be "unindemnified" means to be "uninsured". Transport Accident Act 1986 reference: s.94(2)
- "pecuniary loss damages" - means "damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage". Transport Accident Act 1986 reference: s.93(17)
- "pain and suffering damages"- means "damages for pain and suffering, loss of amenities of life, or loss of enjoyment of life". Transport Accident Act 1986 reference: s.93(17)
- "no-fault benefits"- are a range of benefits the TAC offers to assist those injured in a Victorian transport accident, regardless of fault. The compensation payable may include, loss of income benefits, impairment benefits, dependancy benefits, road accident rescue and ambulance expenses, funeral expenses, counselling for family members, medical, hospital, nursing, attendant care, rehabilitation and disability services, housekeeping, child care and domestic services, travel and accommodation expenses, a post hospital support benefit and modifications to a vehicle or home.
- "granted leave"- is when approval or permission is given for a claimant to start a common law claim by the TAC or by a court.
- "serious injury"- means "a serious long-term impairment or loss of a body function; or long-term serious disfigurement; or severe long-term mental or severe long-term behavioural disturbance or disorder; or loss of a foetus". See the TAC's Serious Injury applications for mental injury claims policy for further information. Transport Accident Act 1986 references s.93(3), s.93(17)
- "transport accident"- is defined under the Transport Accident Act 1986 and means "an incident directly caused by the driving of a motor vehicle or motor car, a railway train or a tram". An incident also includes:
- an incident involving a motor vehicle or motor car, a railway train or a tram which is out of control;
- a collision between a pedal cycle and an open or opening door of a motor vehicle;
- a collision between a pedal cycle and a motor vehicle while the cyclist is travelling to or from his or her place of employment; or
- an incident involving the opening or closing of a door of a bus, tram or railway train. Transport Accident Act 1986 references: s.3(1), s.3(1A)
Frequently asked questions
Who can make a common law claim for damages?
To be eligible to take action under common law for injuries suffered as a result of a transport accident, the claimant must:
- have an accepted claim1 for compensation under Part 3 of the Transport Accident Act 1986;
- have a permanent impairment of at least 30%, or if less than 30%, have the injury determined as a "serious injury";
- have commenced proceedings within 6 years2 from the date of injury or 6 years from when a minor attains the age of 18. Limitation of Actions Act 1958.
For a common law claim to succeed, the claimant must be able to show that the accident was caused by the negligence of another person.
The TAC will consider a person to have been 'directly involved' in an accident if that person arrived at the scene immediately after the accident. For example, an emergency services worker who arrives at the scene of an accident to provide assistance would be considered to have been 'directly involved' in the accident.
When will an impairment assessment for common law purposes commence?
An impairment assessment can commence:
- At the claimant's request – A person's level of impairment may be determined at any time after the accident, if a claimant requests the determination for common law purposes. The injuries must be substantially stable.
- At the claimant's solicitors request. The claimant must appear to the Commission to be or to be likely to be entitled to an impairment benefit. The injuries must be stable.
- At the TAC's discretion – A person's level of impairment may be determined at any time after the accident, if the TAC considers it appropriate because a determination is likely to be required by the claimant for common law purposes. The injuries must be demonstrable and substantially stable. Refer also to the Impairment policies. Transport Accident Act 1986 reference: s.47(7)
What adjustments are made to a settlement or an award of damages?
If it is proven that the claimant is partially at fault for the accident, the damages awarded to the claimant may be adjusted to reflect the extent of the claimant's contributory negligence.
When the TAC is on notice that Centrelink intends to recover its payments, the TAC will make any necessary deductions from the settlement or award of damages prior to sending the balance to the claimant or their representative. For information on what effect lump sum payments may have on Centrelink entitlement refer to the CentreLink website. Ref. S1184 Social Security Act 1991
Repayment of benefits
Once a claimant is awarded damages in respect of injury or death, certain no-fault benefits must be repaid to the TAC. In practice, the amount to be repaid is usually offset against the damages assessment. Refundable benefits include:
- impairment lump sum
- impairment annuity benefits
- loss of earning capacity benefits or annuity
- death lump sum benefit for surviving partner
- surviving partner periodical payments
- surviving children's benefits (lump sum, weekly payments, and education allowance)
- 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).
Transport Accident Act 1986 reference: s.93(11)
Will a claimant continue to be entitled to their usual TAC benefits after bringing a successful common law claim?
Certain no-fault benefits will cease once a common law claim is settled between the parties, or an award of damages is ordered by a Court. Transport Accident Act 1986 reference: s.53(2)
When a claimant receives damages for pecuniary loss (i.e. financial loss), any ongoing entitlement to Loss of Earning Capacity (LOEC) benefits will cease. In addition, when a claimant receives damages for loss of financial support under the Wrongs Act 1958, all dependency benefits will cease.
A settlement or award of damages generally does not affect a claimant's entitlement to ongoing medical and like expenses. Medical and like expenses will generally continue to be paid by the TAC. Transport Accident Act 1986 references: s.60, s.93(10)
Can a common law claim be lodged if the vehicle which caused the injury or death cannot be identified?
Yes. Where the identity of the vehicle is unknown and all attempts have been made to identify the unknown vehicle the claimant is able to name the TAC as the defendant in the action. The claimant should notify the TAC within a reasonable time of their intention to pursue the claim. The claimant's solicitors should provide specific details regarding the accident circumstances, the date, place, injuries and attempts to locate the unknown vehicle. Transport Accident Act 1986 reference: s.96
Can a common law claim be lodged if the driver/owner of the vehicle which caused the injury or death dies before the action commences?
Yes, the TAC will handle the claim on behalf of the deceased driver/owner provided the vehicle was 'insured' (TAC charge paid) to cover the date of the accident. Transport Accident Act 1986 references: s.94(7), s.96(2)
What happens if a claimant is granted a SIC or given leave to bring a common law claim and subsequently dies?
The estate or legal representative of a claimant who dies may recover damages for pain and suffering and for past economic loss up to the date of death. The dependants of the deceased, if eligible may also be entitled to a damages award from the date of death subject to the Wrongs Act (1958). Transport Accident Act 1986 references: s.93(7), s.93(9)
What happens if a claimant dies from causes unrelated to injuries suffered in the transport accident before a SIC is given by the TAC or before leave is granted by the court to bring a common law claim?
If a claimant dies before a SIC is given by the TAC or before leave is granted by the court, the legal representatives of the deceased will be unable to proceed with recovering damages for the injuries the deceased sustained in the transport accident. However, where the TAC is on notice that a claimant is waiting on a serious injury decision and has life threatening injuries or illness, the TAC will make every endeavour to accelerate the decision making process to ensure a decision can be made before the probable death. In such circumstances the claimant's lawyers are asked to cooperate to the fullest in supplying supporting material to the TAC so that the serious injury decision can be made as early as possible. Transport Accident Act 1986 reference: s.93
How are common law claims made by overseas visitors assessed?
The TAC will assess an overseas visitor's claim for common law damages using legislation that applies to the place where the transport accident occurred. When the transport accident occurs in Victoria, the TAC will apply the same legislative and processing rules used for TAC clients residing in Victoria, Australia.
What effect does claiming Comcare benefits (paid under the Safety Rehabilitation and Compensation Act 1988) have on a claimant's common law claim made through the TAC?
The TAC will not apply the provisions of s.93(10) and s.93(11) of the Transport Accident Act 1986 to relevantly reduce a person’s damages where the losses referred to in those sections are paid under the Safety Rehabilitation and Compensation Act 1988 (SRC Act). That is, a person bringing a damages claim will be able to include a claim for these losses as part of their damages claim.
Further information related to this policy:
Serious Injury applications for mental injury claims policy
Transport Accidents and Accidents Arising Out Of The Use Of Vehicle Claims
WorkCover - Transport Accidents and Accidents Arising Out Of The Use Of Vehicle Claims
Wrongs Act Dependancy Claims
Common Law Time limits
Indemnity Provided by the Transport Accident Charge.
1Note: For accidents occurring on or after 20 November 2013, it is not sufficient for a person to have an accepted claim for:
- funeral expenses;
- dependency benefits;
- family counselling expenses; and/or
- travel/accommodation expenses incurred by a family member by reason of visiting an injured person in hospital. Transport Accident Act 1986 reference: s.47(7)(a), 46A(1A)
For accidents occurring before 20 November 2013, a person who has an accepted claim for family counselling may be eligible to take action under the common law for injuries suffered as a result of the accident.
2Note: In some situations, if a Court considers it just and reasonable, proceedings can be commenced outside the 6 year limitation period.