Common law damages

Start Navigation [Current Level] End Navigation [Current Level]

If you are seriously injured in a transport accident and someone else was at fault, you may be able to receive a common law damages payment. The payment is for pain and suffering and loss of enjoyment of life.  It may also be for financial loss resulting from the accident.

To be eligible for common law damages:

  1. You must have someone to sue who was at fault and caused you to be injured
  2. Your injuries must reach a certain impairment rating or you must have suffered a 'serious injury' (either physical or mental)

What does 'serious injury' mean?

There are many factors that are taken into account when deciding whether an injury is a 'serious injury'. These include the medical opinion of the injury and the impact of the injury on the person's lifestyle and ability to work.

The Transport Accident Act (1986) defines serious injury as:

  • A  permanent impairment of 30% or more
  • Serious long-term impairment or loss of a body function
  • Permanent serious disfigurement, such as scarring
  • Severe long-term mental or severe long-term behavioural disturbance or disorder
  • The loss of a foetus.

How is a 'serious injury' assessed?

If your permanent level of impairment is assessed at 30% or more, the legislation says that you automatically have a serious injury.

If your level of impairment is less than 30%, you or your lawyer may request that the TAC consider whether the injury is a 'serious injury'.  As there are many factors that need to be taken into account when assessing whether an injury is a 'serious injury', the TAC may request further information from you to make a decision.

To apply for your injury to be deemed as a 'serious injury' you or your lawyer will exchange information with the TAC about how your injury has impacted on your ability to work, participate in sport, leisure or home activities.

Your lawyer will also give the TAC information about your injury, including medical reports from your doctors and other people treating you. You may also be required to attend medical examinations with an independent medical examiner. 

The TAC may also require information as to how your injuries impact your employment.

If you had a medical condition before the accident and the accident made it worse, your lawyer will need to provide the TAC with medical reports that refer to your health before and after the accident.

How are 'serious injury certificate' applications considered?

The TAC will consider the information that has been provided by your lawyer, together with other information the TAC already has about your claim. The TAC will then do one of the following:

  • Make a decision whether a serious injury certificate will be granted; or
  • Ask your lawyer for more information; or
  • Ask you to attend a medical examination with a specialist doctor..

What happens if a 'serious injury certificate' is granted?

The TAC will send you and your lawyer (if you have one) a letter confirming that your injury has been accepted as a 'serious injury'. This means that you may be able to claim damages, if you can prove that someone else was at fault in the accident. 

You may need to attend a meeting with your lawyer and the TAC to try to settle your claim. If your claim cannot be settled at this stage, you may commence formal legal proceedings. Your lawyer will be able to provide you with further information about this.

What happens if the TAC does not grant a 'serious injury certificate'?

If the TAC considers that the injury is not serious, the TAC will provide your lawyer with a written explanation and send copies of the information that the TAC considered in making the decision.

If you are dissatisfied with the TAC's decision, you may apply to the County Court to have a judge decide whether the injury is a 'serious injury'.  The Law Institute of Victoria has information about the legal process and can provide a list of lawyers who can guide you through the process.

Is there a time limit for claiming?

You have six years from the date of the accident to apply for a serious injury certificate and make a claim for damages.  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 circumstances an extension may be granted.

This section should be used as a guide for pursuing common law damages.  It does not cover every step and the process may be different depending on your individual circumstances.

This information provided below presumes that the TAC will indemnify the at fault party (driver).  If the TAC does not indemnify the at fault party then other procedures may apply.  

Impairment rating of 30% or over TAC automatically grants serious injury cerificate

Impairment rating under 30% you must apply for a serious injury certificate

.

TAC requests information for application and makes a decision

Serious injury accepted

Serious Injury denied

Informal settlement conference held to determine liability and/or damages

Originating Motion issued by lawyer and information exchanged

Damages / Liability agreed and claim settles

Damages / Liability not agreed

Pre-OM conference

Formal legal proceedings (writ issued) and information exchanged

Serious Injury accepted

** Go back to Serious Injury Accepted step

Serious Injury not accepted

Pre-trial mediation

Hearing

Damages /liability agreed and claim settles

Damages/ liability not agreed

Serious Injury accepted

** Go back to Serious Injury Accepted step

Serious injury not accepted

Trial

A claim for common law damages may be lodged for injury or death as a result of:

The dependants of a person who has died as a result of a transport accident may also recover damages under the Wrongs Act (1958) . Transport Accident Act 1986 references: s.93(3), s.93(17) 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:

Definitions

  • "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 policiesTransport Accident Act 1986 reference: s.47(7)

What adjustments are made to a settlement or an award of damages?

Liability adjustment 
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.

Centrelink adjustment 
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.

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.


1 Note: 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.

2 Note: In some situations, if a Court considers it just and reasonable, proceedings can be commenced outside the 6 year limitation period.