Who is not eligible to receive loss of earnings benefits

This policy must be read in conjunction with the Loss of Earnings Benefits policy.

Blood alcohol, drug driving and other offences
Unlicensed drivers
Uninsured and unregistered vehicles
Prison sentence

Blood alcohol, drug driving and other offences

What offences will cause a client to be ineligible to receive LOE Benefits?

The TAC will not pay LOE benefits to a client who is charged and convicted of any of the following offences:

Indictable offences

  • Culpable driving causing death (this is a reference to driving that causes the death of another person by driving a motor vehicle, recklessly, negligently or while under the influence of drugs or alcohol, to the extent of being incapable of having proper control of the vehicle).  s.318 Crimes Act 1958
  • For all transport accidents on or after 20 October 2010:  Dangerous driving causing death under the Victorian Crimes Act 1958, by driving a motor vehicle at a speed or in a manner that is dangerous to the public (having regard to all the circumstances of the case) causes the death of another person.
  • For all transport accidents on or after 2 March 2017: An offence in another state or territory, that is equivalent to culpable driving causing death or dangerous driving causing death. Victorian Government Gazette G9 dated 2 March 2017

Drink driving offences

  • Driving or being in charge of a motor vehicle while, or undergoing a breath or blood test within 3 hours of driving which shows that, the concentration of alcohol present in his or her blood or breath was 0.24 grams or more per 100 millilitres of blood or in the person's breath was 0.24 grams or more per 210 litres of exhaled air, as the case requires
  • Driving or being in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle -   Section 49(1)(a) of the Road Safety Act 1986
  • Refusing to undergo a preliminary breath test as required by a police officer
  • Refusing or failing to comply with a request or signal to stop a motor vehicle and remain stopped at a preliminary breath testing station
  • Refusing to comply with a request to go to a police station, a public building, a booze bus or a police car to furnish a sample of blood or breath for analysis
  • Hinder or obstruct a doctor from taking a blood sample of any other person involved in the accident
  • Refuse to allow a doctor to take a blood sample for analysis after having been brought to a place for examination or treatment as a result of an accident.

Drug driving offences (Only applicable for all transport accidents on or after 20 October 2010):

  • Driving a motor vehicle or being in charge of a motor vehicle while impaired by a drug.   s.49(1)(ba) Road Safety Act 1986
  • Refuses to undergo an assessment of drug impairment.   s.49(1)(ca) Road Safety Act 1986
  • Refuses to comply with a requirement of blood and urine samples.   s.49(1)(ea) Road Safety Act 1986
  • Refuses to provide a sample of oral fluid.   s.49(1)(eb) Road Safety Act 1986

Combined drink and drug driving offences (Only applicable for all transport accidents on or after 1 August 2015):

  • Driving or being in charge of a motor vehicle while both:
    • the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in the person's blood or breath; and
    • the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in the person's blood or oral fluid. s.49(1)(bc) Road Safety Act 1986
  • A person has had a sample of blood taken from him or her within 3 hours after driving or being in charge of a vehicle and
    1. the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and
    2. a prescribed illicit drug was present in that sample in any concentration. s.49(1)(j) Road Safety Act 1986

And the level of concentration of alcohol in the person's blood was 0.24 grams or more per 100 millilitres of blood or in the person's breath was 0.24 grams or more per 210 litres of expelled air, as the case requires

All other offences

The TAC will not pay LOE benefits to a driver or passenger in a motor vehicle who at the time of the transport accident is convicted of:

  • an indictable offence
  • stealing or attempting to steal a motor vehicle
  • resisting or preventing the arrest or detention of any person
  • intentionally causing or attempting to cause injury to any person.

How does a driver's blood alcohol concentration (BAC) affect his/her LOE benefits?

The TAC will reduce the LOE benefits of a driver who as a result of the transport accident is convicted of exceeding the prescribed concentration of alcohol:

  • by one-third, if convicted of driving with a blood alcohol concentration or breath test reading of more than 0.05 and less than 0.12 or
  • by two-thirds, if convicted of driving with a blood alcohol concentration or breath test reading of 0.12 and less than 0.24.

Does a driver's concentration of drug/s affect his/her entitlement to LOE benefits?

For all transports accidents on or after the 20 October 2010, the TAC will reduce the LOE benefits by one-third of a driver who is convicted of:

  • driving a motor vehicle or is in charge of a motor vehicle while the prescribed concentration or more than the prescribed concentration of drugs is present in his or her blood or oral fluid
  • the presence of a prescribed illicit drug in an oral sample in any concentration or the presence of the drug was not due solely to the consumption or use of that drug within 3 hours after driving or being in charge of a motor vehicle
  • the presence of a prescribed illicit drug in the blood sample in any concentration and the presence of the drug in that sample was not due solely to the consumption or use of that drug within 3 hours after driving or being in charge of a motor vehicle.

How does having a combination of blood alcohol concentration (BAC) and a concentration of illicit drugs affect a driver's entitlement to LOE benefits?

For all transport accidents on or after 1 August 2015, the TAC will reduce the LOE benefits by one-third of a driver who is convicted of, or found guilty of an offence under section 49(1)(bc) or section 49(1)(j) of the Road Safety Act 1986.

If the driver's blood alcohol concentration (BAC) was 0.12 or above and less than 0.24, a further reduction of one-third will be applied (effectively making a two-thirds reduction).

Will the TAC withhold LOE payments where a charge-sheet for an offence has been filed or it appears that a charge-sheet charging an offence may be filed for an offence described above?

The TAC will withhold a client's payments if there is reason to believe that a charge-sheet may be filed for any of the above offences until the matter is resolved or the limitation period has expired.

Where the TAC has been notified of a blood alcohol charge and has reduced LOE benefits but later becomes aware that the client was not convicted of that charge, the TAC will reassess the client's entitlement and where required pay full LOE benefits retrospectively.

What happens when a driver's BAC or concentration of drug/s did not contribute to the transport accident?

The TAC will consider paying benefits to a driver who satisfies the TAC that the concentration of alcohol in the blood or concentration of drug/s did not contribute in any way to the transport accident, e.g. a collision occurs between the vehicle of an intoxicated driver who was asleep and parked legally in a parking bay and the driver is able to prove that the blood alcohol did not contribute in any way to the accident.

How does the TAC regard traffic infringement notices in relation to drink or drug driving offences?

The TAC considers a traffic infringement notice relating to drink or drug/s driving to be a conviction for the offence after the expiration of 28 days from the date of issue, unless the notice is challenged in court.

Unlicensed Drivers

Will the TAC pay LOE benefits to a driver who was unlicensed at the time of the accident?

The TAC will not pay LOE benefits to a driver who was an unlicensed driver at the time of the accident.

When will the TAC consider a client to be unlicenced?

For the purposes of this policy a driver will be considered as unlicensed if, at the time of the transport accident they:

  • had never held a licence to drive that class of motor vehicle, e.g a client who holds a current motor car licence only and is injured whilst riding a motorcycle
  • had held a licence to drive that class of vehicle but it was suspended or cancelled at the time of the accident
  • had held a licence to drive that class of vehicle which had been expired for three 3 years or more, and the accident occurred on or after 1 March 2001
  • had held an interstate or overseas licence to drive that class of vehicle which had ceased to authorise that person from driving under Victorian road law for over three years or more.  This  applies to accidents which occurred on or after 1 March 2001.
  • held a learner permit for that class of vehicle (other than a motorcycle or tractor) and did not have a fully licensed driver sitting next to them at the time of the transport accident.

See also "When will the TAC consider a client to be licensed?"

Will the TAC pay LOE benefits to a driver who holds an expired learner permit at the time of the transport accident?

The TAC will not pay LOE benefits to a driver who held an expired learner permit at the time of the transport accident.

Will the TAC pay LOE benefits to a driver injured in a transport accident where a licence was not required?

Where an accident occurs on private property and the driver was an unlicenced driver of a registered motor vehicle, the TAC:

  • will not pay LOE benefits to a driver who had the capacity to obtain a licence
  • will pay LOE benefits where the driver could not obtain a licence to use that class of motor vehicle in the area where the transport accident occurred, eg. where the driver is a minor and is injured driving a farm vehicle and the transport accident charge has been paid.

Is a licence required to drive a 3-wheeled motor trike or 4 or more wheeled motor vehicle?

Where the accident occurs on private property and the client was driving a 3-wheeled motor trike or 4 or more wheeled motor vehicle, the TAC will not pay LOE benefits where the client did not hold:

  • a motorcycle licence in the case of a 3-wheeled motor trike, or
  • a car licence for a 4 or more wheeled motor vehicle

unless the client is a minor and is legally unable to obtain the relevant licence.

Is a fully licensed driver entitled to LOE benefits if they were sitting beside a learner driver at the date of the transport accident and charges against the fully licensed driver are laid in relation to the transport accident?

A driver in relation to a motor vehicle includes a client who is said to be "in charge of the motor vehicle" by reason of sitting beside a driver who is the holder of a learner permit.

The TAC will not pay LOE benefits to a fully licensed driver, who at the time of the transport accident was sitting beside the holder of a learner permit and the fully licenced driver is convicted of any of the various offences mentioned above under "Blood Alcohol, drug driving and Other Offences".

Uninsured and Unregistered Vehicles

Definitions

In this policy:

  • insured motor vehicle means a motor vehicle where the transport accident charge has been paid within 12 months prior to the transport accident
  • uninsured motor vehicle means a motor vehicle in respect of which at the time of the accident the transport accident charge had been unpaid for at least 12 months
  • unregistered motor vehicle means a motor vehicle that has never been registered in Victoria or elsewhere in Australia and the transport accident charge has not been paid at the time of the transport accident
  • "grace period" refers to a period of 28 calendar days from the expiration of the TAC charge during which a person can pay the transport accident charge and obtain cover for the motor vehicle
  • highway means any road or road related area
  • private land means any land (whether publicly or privately owned) that members of the public may not enter or may not remain on without permission and is not a highway.

Private land will therefore not include:

  • a road (an area open to or used by the public and developed for, or has as one of its main uses, the driving or riding of motor vehicles)
  • a footpath, nature strip or an area that divides a road
  • an area open to the public and designated for cyclists or animals
  • an area open to or used by the public for driving, riding or parking motor vehicles.

Will the TAC pay LOE benefits to a client injured in a transport accident involving an uninsured vehicle?

The TAC will not pay LOE benefits to the owner of an uninsured motor vehicle who was a driver or passenger in the motor vehicle at the time of the transport accident. However, owners in Victoria have a 28 day grace period from the date on which the motor vehicle's registration and transport accident charge expires, in which to pay the charge. If the transport accident occurs outside the grace period, the vehicle is considered to be uninsured.

Is a client entitled to TAC benefits in relation to an accident involving an uninsured vehicle on private land?

The TAC will pay benefits to a client where he/she is either a driver, passenger or pedestrian injured in a transport accident on private land in Victoria involving an uninsured vehicle, provided the client is not the owner of the vehicle.

The TAC will not pay benefits to a driver, passenger, or pedestrian who is the owner of an uninsured motor vehicle injured in a transport accident on private land. However, owners in Victoria have a 28 day grace period from the date on which the motor vehicle's registration and transport accident charge expires, in which to pay the charge. If the transport accident occurs outside the grace period, the vehicle is considered to be uninsured.

Is a person entitled to TAC benefits in relation to an accident involving an unregistered vehicle on private land?

The TAC will not pay benefits to an injured person as a result of a transport accident involving an unregistered motor vehicle on private land whether they are the owner or not.

Will TAC cover need to be taken out for non-registered vehicles that will not be used on a highway?

Yes, TAC cover will need to be taken out for accidents that may occur on private land. This is referred to as TAC cover for non registered motor vehicles (NRV cover). This covers vehicles such as tractors and recreational trail bikes that can only be used on private land, eg. farms.

Unless TAC cover is purchased for the motor vehicle, it is possible that any accident involving the motor vehicle could result in the TAC seeking recovery from the owner of the motor vehicle for compensation provided to a driver, passenger or pedestrian that is injured.

If an unregistered vehicle needs to be driven on a highway as a one off event, an unregistered vehicle permit (UVP) will need to be obtained by VicRoads, e.g. driving the vehicle to a place for repair.

Will the TAC pay LOE benefits to the driver of an insured interstate or overseas vehicle?

The TAC will pay LOE benefits to the owner of an interstate or overseas motor vehicle who was the driver or a passenger in the vehicle if:

  • the accident occurred in Victoria; and
  • the applicable interstate insurance fee (or TAC insurance fee in the case of an overseas vehicle) covers the date of the transport accident; and
  • the person has not, under a law outside Victoria:
    • recovered an amount of compensation or damages or
    • had an award of compensation or judgement for damages entered in their favour or paid into court or
    • settled a claim or commenced an action for damages in a court or
    • had a claim for compensation accepted.

Registered interstate or overseas motor vehicles arriving in Victoria are therefore exempt from the requirement to be registered under Victoria law under the Road Safety Act (1986).

The owner of an interstate motor vehicle, whilst in Victoria is expected to have paid a transport accident charge, in accordance with the laws of the relevant State or Territory.

Will the TAC pay LOE benefits to a client injured in a transport accident whilst riding a recreational motorcycle?

The TAC will pay LOE benefits to a licenced client injured whilst riding a recreational motorcycle, regardless of where the accident occurs, provided the transport accident charge has been paid to cover the date of the transport accident.

Further information on vehicle registrations can be obtained from the VicRoads web site.

Prison Sentence

Will the TAC pay LOE benefits to a client serving a prison sentence?

The TAC will not pay LOE benefits to a client during any period that the client is serving a prison sentence or is remanded in custody.

Transport Accident Act 1986 references: s.40, s.40A