Transport accidents and accidents arising out of the use of vehicles

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What is a transport accident for common law purposes?

These are incidents (i.e. accidents) directly caused by the driving of a vehicle.

These incidents include:

  • the driving of a motor vehicle or motor car, a railway train or a tram
  • pedal cyclists colliding with open or opening motor vehicle doors
  • pedal cyclists colliding with a motor vehicle while the cyclist is travelling to or from his or her place of employment
  • an out of control vehicle.

    Transport Accident Act 1986 reference: s.3(1) and s.3(1A)

Examples

  1. A driver is travelling at 80 kilometres per hour when he/she collides with another car
  2. A driver is opening the driver's door to exit the vehicle and strikes a pedal cyclist who is riding past the parked car
  3. A driver leaves his/her parked car, the handbrake is not engaged and this causes the car to roll and strike a pedestrian.

What is payable?

A claimant's entitlement is restricted to:

The claimant has to meet the requirements of having suffered a 30% impairment or having suffered a "serious injury". A claimant's medical and like expenses continue to be paid under the TAC scheme.

Transport Accident Act 1986 reference: s.93(3), s.93(17), s.93(10) and s.60

What is an accident which is not a defined a transport accident for common law purposes?

This is an incident (i.e. an accident) which is not directly caused by the driving of a vehicle and as such cannot be classified as a transport accident under the Act. The accident is caused by or arises out of the use of a motor vehicle or motor car, a railway train or a tram. The circumstances 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. 

Transport Accident Act 1986 referene: s.94(1)

Example

Loading and unloading use - A driver ceases the driving, i.e. parks the vehicle and turns off the ignition. The driver exits the vehicle and begins to unload goods from the vehicle sustaining an injury.

What is payable for accidents that arise out of the use of a vehicle before 21/05/2003?

Providing the claimant can prove fault against the driver/owner of the vehicle the entitlement is unrestricted and includes:

  • unlimited pecuniary loss
  • unlimited pain and suffering
  • unlimited medical and like expenses under the TAA (1986).

A claimant does not have to meet the requirements of having suffered a 30% impairment or having suffered a "serious injury".

What is payable for accidents that arise out of the use of a vehicle on and after 21/05/2003?

A claimant's entitlement may be restricted. The TAC therefore recommends that the claimant seek independent legal advice in these circumstances. (See Law Institute of Victoria website) for accidents on and after 21/05/2003.