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Claims from Country Fire Authority (CFA) Volunteers

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POLICY

The TAC will pay no-fault benefits to a CFA volunteer member who is injured, or his/her dependants, if the person dies as a result of a transport accident in accordance with TAC's legal obligations under the Transport Accident Act 1986 (TAA 1986) and its policies.

The TAC will also determine entitlement to common law damages in accordance with the guidelines in this policy and the TAC's related policies for a CFA volunteer memberCFA volunteer auxiliary worker and a CFA casual fire-fighter.

Transport Accident Act 1986 reference: s.35 and s.62

DEFINITIONS

In this policy:

  • transport accident under the TAA 1986 is defined as:
    • an incident directly caused by the driving of a motor vehicle or motor car, a railway train or a tram
    • 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, and
    • a collision between a pedal cycle and a motor vehicle while the cyclist is travelling to or from his or her place of employment.
  • motor vehicle/motor car includes CFA fire and emergency vehicles such as fire trucks and staff transport vehicles. Transport Accident Act 1986 reference: s.3(1) and s.3(1A) 
  • arising out of the use is a term used to describe an incident that arises out of the use of a registered motor vehicle or motor car, a railway train or a tram that is not directly caused by the driving of a motor vehicle, and as such cannot be classified as a "transport accident" under the TAA 1986. The circumstances of the accident are not confined to periods in which the vehicle is in motion. A vehicle may be 'in use' when the vehicle is stationary or inoperable. For 'arising out of the use' to apply, a vehicle should be used in the capacity for which it was designed. Motor vehicle/motor car includes CFA fire and emergency vehicles such as fire trucks and staff vehicles. Transport Accident Act 1986 reference: s.94(1) 
  • CFA volunteer member/officer is a member of the community who has volunteered his/her services in an unpaid capacity. The person is either enrolled in a Brigade or has applied for membership with a Brigade and is authorised to perform CFA duties.
  • CFA volunteer auxiliary worker is an unpaid member of the community who is authorised to provide support services. The person participates in activities such as fund raising or preparing meals for fire-fighters during fires, etc.
  • CFA casual fire-fighter is an unpaid member of the community who engages in fire-fighting activities at the request or expressed or implied approval of an officer in charge of operations at a fire.
    Leg ref:  Country Fire Authority (CFA) Act 1958, Part V Compensation of Causal Fire-Fighters and Volunteer Auxiliary Workers.

GUIDELINES

CLAIMS FROM CASUAL FIRE-FIGHTERS AND VOLUNTEER AUXILIARY WORKERS

Can casual fire-fighters and volunteer auxiliary workers receive TAC no-fault benefits as a result of a transport accident?

No, the TAC will not pay no-fault compensation to a casual fire-fighter and volunteer auxiliary worker as they are entitled to compensation through another insurance compensation scheme provided under Part V of the Country Fire Authority Act 1958 and are excluded from claiming compensation from the TAC under section 37 of the TAA 1986.

Transport Accident Act 1986 reference: Part 3, Compensation and s.37

Can casual fire-fighters and volunteer auxiliary workers claim common law damages as a result of a transport accident?

Yes, casual fire-fighters and volunteer auxiliary workers can claim common law damages, if the incident that caused the injury was a transport accident.

Transport Accident Act 1986 reference: Part 6, Damages 

In order to pursue a claim for damages at common law the casual fire-fighter and volunteer auxiliary worker must request an impairment assessment from the TAC under s.47(7)(b).

This can be requested:

  • any time after the transport accident, if the injury is stable or substantially stable, or
  • 3 months after the date of the transport accident, and
  • before the expiration of the 6-year time-limit in which to start a common law action. Refer to the Common Law Time-Limits policy.

It is preferable that the request is received earlier rather than later. A Claim for Compensation form does not need to be lodged, only that a section 47(7) request is made in writing. 

Transport Accident Act 1986 reference:  s.47(7)(b). Leg ref: Limitations of Actions Act (1958)

Can a casual fire-fighter and volunteer auxiliary worker claim common law damages as a result of an incident which arises out of the use of a registered motor vehicle?

Yes, if the incident that caused the injury arises out of the use of a registered motor vehicle, e.g. a fire truck, a casual fire-fighter and a volunteer auxiliary worker can claim common law damages, subject to establishing negligence on the part of another party capable of being sued.

The injured person does not have to meet the requirements of having suffered a 30% impairment, or having suffered a "serious injury" under the TAA 1986.

Transport Accident Act 1986 reference:  Part 6, Damages and  s.94(1) 

See also the 'Transport Accidents and Accidents Arising Out Of The Use Vehicle Claims' section of the Lump Sum Damages (Common Law) policy. 

CLAIMS FROM CFA VOLUNTEER MEMBERS - TRANSPORT ACCIDENTS

What is a CFA volunteer member entitled to claim from the TAC if injured in a transport accident?

A CFA volunteer is entitled to claim no-fault compensation and/or common law damages, (if the person can prove negligence against the driver/owner of the registered motor vehicle).

Transport Accident Act 1986 reference: Part 3, Compensation and Part 6, Damages 

No-Fault Compensation
The CFA volunteer is entitled to claim no-fault compensation regardless of who is at fault for the accident, provided the person has lodged a claim for compensation within 1 year after the accident. The TAC may also consider a claim made outside of this time limit if:

  • it is made within three years of the date of the injury or the date when the injury first manifests, and
  • reasonable grounds exist for the delay in making a claim.

If no claim was made for a person under the age of 18 by their parent or guardian within the statutory time, that person can make a claim until the day before they attain the age of 21.

See also the Making a Claim for Compensation policy.

The compensation payable includes:

Transport Accident Act 1986 reference: s.60, s.23, s.46A, s.47(7), s.44, s.45, s.49, s.50, s.50A, s.51, s.54 and s.54A(1) 

Common Law Damages
In addition to no-fault compensation, the CFA volunteer member can claim common law damages, if he/she can prove negligence and has someone to sue. This is provided the CFA volunteer member has:

  • lodged a claim for compensation within 1 year after the transport accident or when the injury first manifests and before the expiration of 3 years after the accident or injury manifestation (if the TAC believes there are reasonable grounds for not lodging earlier), and
  • met the requirements of having suffered a 30% impairment or having suffered a "serious injury" under the TAA 1986, and
  • issued a writ within 6 years after the date of the accident or when the injury first manifests. The exception to this is in the case of a minor, who has 6 years from the age of 18. A CFA volunteer member can also apply for an extension of the 6 year limitation period under section 23A of the Limitations of Actions Act 1958. See also the Common Law Time Limits policy.

The person is entitled to recover:

  • pecuniary loss damages
  • pain and suffering damages. 

These amounts are capped. Medical and like expenses may not be settled and continue to be paid under the TAC scheme.

Transport Accident Act 1986 reference:  s.68(1)(2) and s.93(17).      Leg ref: Limitations of Actions Act (1958)

FATAL TRANSPORT ACCIDENT CLAIMS - CFA VOLUNTEER MEMBERS

What are the dependents of a CFA volunteer member entitled to claim from the TAC, if the volunteer member dies from injuries received in the transport accident?

Dependent family members are entitled to claim no-fault compensation and/or common law damages.

The compensation payable includes the following:

No-Fault Compensation:

Transport Accident Act 1986 reference:  s.57s.58s.59s.60(2A) and s.60

Common Law Damages
In addition to the no-fault compensation, the dependent family members may claim common law damages in respect of the loss of financial support or services to a dependent spouse/partner and/or children under the Wrongs Act (1958) Part 111 (Wrongs Act). 

To be able to claim dependency benefits or proceed with a claim under the Wrongs Act the TAC's Claim for Compensation (Fatal) form must be lodged within 1 year after the accident or the death and before the expiration of 3 years after the accident or the death (if the TAC believes there are reasonable grounds for not lodging earlier). Any Wrongs Act claim must be commenced within 6 years of the date of the accident or the death. See also the Wrongs Act Dependency Claims and the Common Law Time-Limits policy.

Transport Accident Act 1986 reference: s.68(1)(2)Leg ref: Limitations of Actions Act (1958) and Wrongs Act (1958)

ARISING OUT OF THE USE CLAIMS - CFA VOLUNTEER MEMBERS

What is a CFA volunteer member entitled to claim if injured in a non-transport accident that involves the use of a registered motor vehicle?

If the accident 'arises out of the use' of a registered motor vehicle and is not a transport accident, the CFA volunteer is entitled to claim common law damages provided he/she can prove fault against the driver/owner of the vehicle for the incident.

The person is entitled to recover:

  • pecuniary loss damages
  • pain and suffering damages
  • medical and like expenses. 

These amounts are not capped.

The injured person does not have to meet the requirements of having suffered a 30% impairment, or having suffered a "serious injury" under the TAA 1986, to start his/her common law action. There is no entitlement to no-fault compensation. Refer to the Lump Sum Damages (Common Law) policy.

Transport Accident Act 1986 reference:  Part 6, Damages and s.94(1)

INTERSTATE ACCIDENTS

Is a CFA volunteer member covered for injury or death when the transport accident occurs interstate?

A CFA volunteer member is covered by the TAC, if he/she was a:

  • Victorian resident involved in a transport accident outside Victoria involving a Victorian registered vehicle. Includes pedestrians.
  • Non-Victorian resident involved in an interstate accident as a driver or passenger in a Victorian registered vehicle.

Note, once a claim for compensation form or accounts requiring payment have been lodged/accepted with an interstate insurer, or a claim for damages is lodged outside of Victoria in another State or Territory, the TAC will cease making payments to the CFA volunteer. 

The CFA volunteer's claim will be processed in accordance with the policy and guidelines in the Accidents in Another State or Territory policy

Due to the complexity of this type of case, joint liability issues by liable insurers as well as recovery rights by third party insurers, the CFA volunteer member may wish to seek their own legal advice. See also the Recoveries policy.

Transport Accident Act 1986 reference: s.35s.42s.42(2) and s.104

CLAIMING NO-FAULT COMPENSATION FROM THE TAC AND THE CFA

What happens when a CFA volunteer member or his/her dependent family members claim no-fault compensation from the TAC and the CFA at the same time?

In the event the CFA volunteer member or his/her dependent family members claim no-fault compensation for injury or death from both organisations for the same transport accident, the CFA may seek to recover from the person or his/her dependants:

  • the equivalent amount of any compensation received from the CFA, or
  • where the amount received from the TAC is less than what has been paid by the CFA, an amount determined by the CFA.

In the event claims with both organisations are lodged, the person has an obligation to advise the TAC and the CFA that two claims for the same accident/incident have been lodged, to avoid being overpaid.

The CFA volunteer, or his/her family members, may wish to seek independent legal advice regarding entitlements in relation to injury or death from a transport accident.

Transport Accident Act 1986 reference: s.35 and s.75.      Leg ref: Country Fire Authority (CFA) Regulations 2004 Part 6, Division 1 – Compensation for Volunteers, 76,78 and 87

TAC AND CFA COMMUNICATION

What will be the extent of the communication between the TAC and the CFA?

In regard to collecting and communicating information, this will be limited to that which is necessary for both organisations to perform their duties in order to process the CFA volunteer's entitlements, under the respective Acts and will be subject to the principles in the Privacy and Data Protection Act 2014. See also the Your Privacy and the TAC. 

Transport Accident Act 1986 reference:  s.131(1)(2) and s.67.       Leg ref: Privacy and Data Protection Act 2014

See also the policies for:

Lump Sum Damages (Common Law) policy

Common Law Time-Limits policy

Impairment Benefits policy

Time Limit to Apply for the Payment of Medical and Like Expenses policy