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Serious Injury applications for mental injury claims

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The TAC understands the impact mental injury can have on the lives of those affected by road trauma. The policy and legislation regarding serious injury applications for mental injury claims is intended to further support TAC clients in seeking appropriate and timely treatment for their mental injury in order to maximise their recovery.

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 (i.e. financial loss) they claim to have suffered as a result of an injury caused by the negligence of a driver/owner of a Victorian registered vehicle.
  • "granted leave"- is when approval or permission is given by a Court for a claimant to commence a common law claim.
  • "Serious Injury Certificate" ('SIC') – if the TAC determines that a claimant has a 'serious injury', the TAC will provide the claimant with a document known as a 'Serious Injury Certificate' ('SIC').
  • "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)

Background

According to the Transport Accident Act 1986, a claimant may only bring a claim for common law damages in relation to an injury sustained as a result of a Victorian transport accident if the claimant:

  1. has his/her level of impairment determined at 30% or more; or
  2. the TAC determines that the claimant has a 'serious injury'.
    Transport Accident Act 1986 references:  section 93(2), 93(3).

If the TAC determines the claimant's level of impairment at less than 30% and determines that the claimant does not have a 'serious injury', the claimant may apply to the County Court for permission to bring a common law claim.
Transport Accident Act 1986 references:  section 93(4)(d).

The Transport Accident Act 1986 defines the term 'serious injury' as:

  1. serious long-term impairment or loss of a body function;
  2. permanent serious disfigurement;
  3. severe long-term mental or severe long-term behavioural disturbance or disorder; or
  4. loss of a foetus.
     Transport Accident Act 1986 references:  section 93(17).

The definition of 'serious injury' is complex. There are many factors that need to be taken into account when assessing whether an injury meets the definition. It is recommended that a claimant seek legal advice regarding whether they are likely to satisfy the 'serious injury' definition.

For further information regarding common law claims generally, see the TAC's Claims for Common Law Damages policy.

Frequently asked questions

If a claimant is unable to satisfy the 'serious injury' test, is there any other form of compensation available to them?

Yes. If a claimant is unable to satisfy the 'serious injury' test and his/her level of impairment is less than 30%, the claimant will be unable to bring a claim for common law damages. However, the claimant will generally be entitled to 'no-fault' benefits under the Transport Accident Act 1986. This may include: loss of income benefits, an impairment benefit, 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.

Further information related to this policy:

Claims for Common Law Damages policy

Common Law Time limits

Indemnity Provided by the Transport Accident Charge