Compensation is available for any person injured in a transport accident involving a car, motorcycle, bus, train or tram in Victoria. In the case of an interstate accident, compensation is also available provided the accident involves a Victorian resident who was driving or a passenger in a Victorian registered motor vehicle.

Who is the TAC in Victoria?

The Transport Accident Commission (TAC) is the Victorian government body responsible for providing benefits to those who are injured as a result of car, motorcycle, bus, train or tram accidents.

Individuals who have been injured as a result of the above can make a claim for benefits. The TAC is the direct point of contact for the payment of benefits and is responsible for making decisions in relation to the claim.

If you have been injured, even if you are at fault, you should consider lodging a TAC claim if you would like to claim benefits.

Understanding the TAC claims acceptance process

What is a TAC claim?

A TAC claim is a ‘no fault’ claim.

The TAC needs three things to accept a claim.

Firstly, they need to know that you were involved in a transport accident. Proof that you were involved in a transport accident can include providing a copy of a police collision report or details of any hospital admissions.

You should also, where possible, obtain the name of any other driver involved in the transport accident, or the name of any witnesses involved. The TAC may also ask for details of your vehicle repair. If your accident occurred on public transport, you must report your injuries to the relevant transport authority.

Secondly, the TAC will need details of any injuries you sustained as a result of the transport accident. For most people this will be obvious, however, if your injuries are not as significant or there was a delay in them becoming apparent, you should seek medical treatment at the earliest possible time. The TAC will require details of your injuries from your doctor.

Finally, the legislation requires a police report is made. Therefore, if the police did not attend the scene of the transport accident, you must go to a police station to report the accident. You can tell the police you are lodging a TAC claim and a report is required by the TAC.

How do I make a TAC claim?

Making a TAC claim is easy to do by visiting the TAC website at www.tac.vic.gov.au.

If you prefer to lodge your claim via telephone you can do so by calling 1300 654 329. The TAC will send you a claim form to check and sign, which must be witnessed by an appropriate person.

If you go to the hospital after your accident and need to be admitted, the hospital can assist with lodging a TAC claim.

You should make sure you have details of your accident handy, including the details of any witnesses and whether the accident was reported to the police. You should also have any relevant medical information and certificates as well as income and bank details.

If you lodge a claim with the TAC directly, you must do so within 12 months of the date of the accident. A claim can be lodged up to three years after the accident, however the TAC can reject the claim if they do not accept the reasons given for the late lodgement. If the claim is made more than three years after the accident, the TAC cannot accept the claim.

What can you claim from the TAC?

The Transport Accident Act establishes the Transport Accident Commission (TAC) to administer claims and pay out the following type of benefits:

• medical treatment and income support
• lump sum compensation to eligible people in the form of an impairment benefit and/or common law damages.

TAC payouts in the form of impairment benefits and common law damages are not taxable. Even if you receive common law damages for future economic loss, these are not viewed as ‘income from personal exertion’ by the ATO and as such are not taxed.

Once the TAC has accepted your claim, you may be entitled to a variety of benefits including:

Medical and like expenses

This covers medical treatment, radiological investigations, rehabilitation, home help, childminding, medications, physical therapies and taxi and/or travel costs to treatment.

The TAC can pay for a broad range of medical treatment and services to help you recover from an accident. Some examples include ambulance expenses, hospital, medical or doctor appointments and the cost of surgery. The TAC can also pay for services such as physiotherapy, chiropractic treatment and occupational therapy as well as medication, x-rays and scans.

Some forms of treatment are automatically funded, however, in some cases and for particular types of treatment, your practitioners must write to the TAC and request approval for funding.

Your health professional must provide details to the TAC about what treatment and support you require due to your transport accident injuries. The TAC should pay for any reasonable treatment and services covered under the legislation. The TAC cannot decide what treatment you require; however, they can question if the treatment the health practitioner is recommending is reasonable.

Your TAC claim number will be required by the TAC each time you or your treating practitioner makes a claim.

Loss of Earnings/Loss of Earning Capacity benefits if you cannot work

Whether or not you can work is determined by your treating practitioners. You must obtain Certificates of Capacity issued by your practitioners and submit them to the TAC for payment on a regular basis.

In order to receive weekly loss of earnings payments, you will need to firstly lodge a claim and also provide the TAC with tax returns or payslips for the 12 months prior to your injury. This is so the TAC can work out the amount of your weekly pay. If you are self-employed, the TAC will require substantial information about your earnings. The assessment is known as the “Pre-accident Weekly Earnings”.

Under the Act, you are not able to claim lost wages in the first five days following an accident.

If you were an earner as at the date of your injury and cannot work as a result of the accident, the TAC may pay 80% of your pre-injury earnings from the first five working days after your accident, up to a maximum of $1,620 per week as at 1 July 2024. These payments go for the first 18 months from your date of injury and are referred to as loss of earnings benefits.

If you are unable to work from the 18-month mark onwards, you are entitled to payments called loss of earning capacity benefits. These payments usually stop 3 years after the accident. The current maximum for loss of earning capacity payments is $1,410 per week as at 1 July 2024.

An impairment benefits lump sum

If you have sustained a permanent injury as a result of the accident, you may be entitled to lump sum compensation in the form of an impairment benefit claim. An impairment benefit claim is a no-fault claim and relies on medical assessments by one or more independent medical specialists.

If you are assessed as having 11% or more whole person impairment according to the Permanent Impairment Guidelines, you are entitled to receive compensation. The TAC currently pays $9,350 for injuries which assess at 11 per cent, with the maximum payment being $427,160 as at 1 July 2024.

Your injuries must be considered stable to lodge this claim. This means that you must have completed any substantial medical treatment you have intended to, as well as recover from this treatment.

Common law damages

If your whole person impairment is assessed and the accident was not your fault, you may have a further entitlement. This further claim, known as common law damages, can be made if it is established you have a suffered a ‘serious injury’ which was caused by the negligence of another party, typically another driver.

There are two forms of common law damages available to a person who has suffered injuries as a result of a transport accident. They are:

1. Pain and suffering damages; and
2. Loss of earnings damages.

The following factors will be taken into account when assessing the value of someone’s damages:

1. The severity of the injured person’s injuries;
2. The significance of the pain and suffering consequences on the injured person’s life;
3. The age of the injured person; and
4. The degree to which the injured person is incapacitated for employment.

TAC can pay a maximum of $663,580 for pain and suffering and $1,493,170 for economic loss as at 1 July 2024.

Common law damages claims are very specialised and there is often overlap between TAC payouts and other support schemes like Centrelink, NDIS and private health insurance. It is therefore important that you seek expert legal advice about cases where you might be entitled to a compensation payout.

What can’t I claim from the TAC?

The TAC cannot pay for the costs associated with property damage, including damage to your vehicle, towing expenses or vehicle storage. It also cannot pay for damage to items such as clothing, mobile phones or motorcycle gear. It can, however, pay for replacement or repair of damaged glasses or dentures arising from the accident.

It is important to note that the TAC will not fund treatment or services that are unreasonable or unrelated to your injuries. The TAC also will not fund treatment that has been obtained outside of Australia or provided by unregistered or unqualified persons.

It is essential that you make timely application for reimbursement for your accident-related expenses. You have two years from the date of the expense incurring to make the claim for payment.

If the TAC makes a decision you disagree with, you are able to dispute the matter with the TAC.

Eligibility requirements

To learn whether or not you may be eligible to make a TAC claim and if you should engage a personal injury lawyer, read our article on TAC claim eligibility and the benefits of seeking a TAC claims lawyers.

Case studies

The below case studies provide examples of how damages have been calculated by the Courts in the past.

Munday v Court [2013] VSCA 279

KEY FACTS

• The Plaintiff was involved in a transport accident on 15 April 1998
• The Plaintiff was 31 at the time of the transport accident
• A vehicle veered onto the Plaintiff’s side of the road and caused a head on collision
• The Plaintiff suffered a number of injuries, including a spinal injury, injuries to her feet, an acquired brain injury and a psychological injury.

DAMAGES AWARDED

Jury awarded the Plaintiff:

• $70,000 for pain and suffering
• $80,000 for loss of earnings.

This was upheld in the Court of Appeal.

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• The Plaintiff suffered a spinal injury. However, the Defendant’s medical experts described the spinal injury as a “muscular or soft tissue” injury. Surveillance footage was shown, which showed that the Plaintiff able to play with her children and lift school bags in a pain-free manner. The Plaintiff was also involved in a further accident in 2005, which caused her a sore back
• The Plaintiff claimed that she had suffered injuries to the feet. However, the Plaintiff had a pre-existing injury from jumping off a fence. Although the Plaintiff said that she had no pain from the previous injury, doctors testified that, that was unlikely
• The Plaintiff’s alleged acquired brain injury was disputed. There was conflicting medical evidence about its existence. The Plaintiff also subsequently completed a university degree following the transport accident
• The Plaintiff alleged that she had become an anxious driver following the transport accident. However, after the accident, she was issued 20 speeding fines over a period of 14 years. The Plaintiff was diagnosed with depression following the transport accident, but subsequent to the accident, she was also involved in an incident involving sexual harassment and a break-up with her partner which caused her psychological distress
• For loss of earnings damages: At the time of the transport accident, the Plaintiff was a single parent, with sole care of her 6 year old son
• The Plaintiff was working part-time as a caterer at the time of the transport accident. In the financial year prior to the transport accident, there was evidence that she earnt just over $10,000
• The Plaintiff had three more children subsequent to the transport accident. Evidence was given that she had made the decision to be a full-time mother.

Lakic v TAC [2014] VSC 291

KEY FACTS

• The Plaintiff was involved in a transport accident on 15 May 2000
• The Plaintiff alleged that a motorcycle cut in front of her vehicle, which requiring her to swerve suddenly. The Plaintiff alleged that this in turn, caused her to spin around on the roadway and eventually collide with an embankment on the side of the road
• The Plaintiff suffered an injury to her neck, right shoulder and a psychiatric injury as a result of the transport accident.

DAMAGES AWARDED

Judge awarded the Plaintiff:

• $275,000 for pain and suffering damages, which was reduced by 10% (to $247,500) due to the Plaintiff’s subsequent accidents
• $334,400 for past loss of earnings
• $256,902 for future loss of earnings (to at least age 62).

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• The Plaintiff was involved in two separate accidents after the transport accident
• The Plaintiff’s husband and son both gave good evidence about the “profound” impact of the Plaintiff’s injury on her life
• The Judge was impressed by and accepted the evidence given by the Plaintiff’s long standing General Practitioners.

For loss of earnings damages:

• The Plaintiff was working as a packer at Arnott’s Biscuit factory at time of the transport accident and did not work subsequent to the transport accident.

Davies v Nilsen [2016] VSC 557

KEY FACTS

• The Plaintiff was 24 years old at the time of the transport accident
• The Plaintiff alleged that she suffered a number of injuries, including:
• A left knee injury which will eventually require a total knee replacement
• Right knee pain as a result of over use due to left knee injury
• Complex regional pain syndrome
• Pain and symptoms in the upper thoracic and cervical spine, radiating into the shoulders causing headaches and migraines
• Psychological injury.

DAMAGES AWARDED

Judge awarded the Plaintiff:

• $125,000 for pain and suffering damages
• $0 for loss of earnings damages.

CONSIDERATIONS WHICH IMPACTED THE AWARD

• The Judge found that the thoracic and cervical spine injuries, together with migraines, were caused by transport accident, but everything else was not
• The Judge also found that the transport accident had not caused any impact on her loss of earning capacity.

Rhys Rech vs Transport Accident Commission [2018]

KEY FACTS

• The Plaintiff was involved in a transport accident on 3 May 2013
• The Plaintiff alleged he suffered an injury to his left ankle and left wrist after he lost control of his motorcycle when he attempted to avoid crashing into an unidentified car that had pulled out into his path.

DAMAGES AWARDED

Judge awarded the Plaintiff:

• $25,000 for pain and suffering damages; and
• $5,000 for past loss of earnings.

CONSIDERATIONS WHICH IMPACTED THE AWARD

• It is presumed the jury did not accept that the Plaintiff suffered a left ankle injury and only compensated him for the minor soft tissue injury to the left wrist.

Given the damages were below the statutory threshold amount, the Plaintiff did not receive judgement for any damages ultimately.

Becka v Tuppen [2022] VCC 1378

KEY FACTS

• The Plaintiff was involved in a transport accident on 13 June 2013
• It was a wet and rainy day
• Just prior to the Plaintiff’s accident, there had been a collision where the Defendant, Ms Tuppen had negligently caused a collision with another vehicle
• Approximately 4 minutes later, the Plaintiff encountered a build-up of traffic caused by the initial collision
• In an attempt to avoid the vehicle ahead, the Plaintiff braked suddenly, causing his van to skid out of control, crash into a stone bridge support, and flip onto the passenger side
• The Plaintiff sustained multi-level thoracic fractures.

DAMAGES AWARDED

The Judge awarded the Plaintiff:

• $135,000 for pain and suffering damages
• $188,310 for loss of earnings
• There was a reduction of 50% due to the Plaintiff’s contributory negligence, meaning the damages entitlement was $161,655.

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• The Judge had some concerns about the limited medical evidence and reliability of the Plaintiff’s evidence but accepted that he had some ongoing low-level pain in the thoracic spine.

For loss of earnings damages:

• The minimal reliable medical evidence, in combination with the Plaintiff’s unrestricted activities and movement captured on video surveillance supports that he has a residual capacity for work
• Taking a holistic approach, the Judge opined that he has some ongoing level of incapacity which may prevent him from performing more physically demanding jobs and could result in periods of unemployment or underemployment.

For contributory negligence:

• The Judge did not accept the Plaintiff’s evidence that he was travelling at a speed of 70-75 kmph prior to his collision and concluded that the evidence suggests he was travelling at 95-100kmph onto the exit ramp. This meant he ignored the advisory speed signs of 70kmph, was exceeding the speed limit by 20kmph and misjudged the slowing of the truck in front of him.
• As such, the Plaintiff failed to exercise reasonable care for a risk that was reasonably foreseeable on a wet and rainy day in heavy traffic, particularly when he was familiar with the subject road.

Biggs v O’Connor [2021] VSC 826

KEY FACTS

• The Plaintiff’s husband was involved in a transport accident in December 2017
• Prior to the accident, the Plaintiff’s husband and 3 others played golf together, consuming alcohol both on the course and afterward and the clubhouse bar
• Upon conclusion of the afternoon, the Defendant, Mr O’Connor was encouraged to accept a lift home, rather than drive his motorcycle, but he declined. He proceeded to drive his motorcycle home with the Plaintiff’s husband as the pillion passenger
• Less than 1km from the golf course, the motorcycle ultimately became out of control and collided with a fence and both individuals sustained serious injuries
• The Plaintiff’s husband underwent surgery but passed away in the early hours of the following morning
• The Plaintiff sustained a psychiatric injury as a result of the circumstances.

CONSIDERATIONS WHICH IMPACTED THE AWARD

• A driver of a motor vehicle should consider that their negligence could cause mental harm to the spouse of the primary accident victim
• The secondary victim (spouse) can succeed without proving that the primary victim has a viable claim against the negligent driver.

DAMAGES AWARDED

The Judge awarded the Plaintiff:

• $275,000 for pain and suffering damages
• $150,00 for past loss of earnings
• $230,000 for future loss of earnings (including 15% discount for vicissitudes).

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• The Plaintiff has suffered, and will continue to suffer, chronic PTSD, chronic major depressive disorder with anxious distress and an unresolved chronic grief reaction
• There has been a significant improvement in the Plaintiff’s psychological condition and medical material supports a positive prognosis.

For loss of earnings damages:

• The Plaintiff has returned to a significant level of employment and domestic activity
• The Plaintiff demonstrated strong work ethic and commitment to returning to work at her maximum capacity
• The Judge acknowledged that redeployment or redundancy could pose increased risks for the Plaintiff for future employment as a result of her psychological condition and ongoing symptoms
• Despite suffering from ongoing depression and related cognitive deficits, the Judge was impressed with the Plaintiff’s evidence.

Kesser v West [2021] VSC 621

KEY FACTS

• On 10 January 2018, the Plaintiff was walking through a green pedestrian light when a car failed to give way and struck her
• She suffered significant knee injuries as a result
• She also suffered psychiatric injuries, however, also had a pre-existing condition.

DAMAGES AWARDED

Judgement awarded for the Plaintiff:

• $380,000 for pain and suffering
• $313,000 for loss of past and future earnings.

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• Medical and lay witness evidence showed that the Plaintiff’s physical and psychological injuries impacted every facet of her life. She will be dependent on others for support
• She was described as a woman who previously overcame adversity (as a refugee and cancer survivor) and was optimistic and resilient. She was very active and involved in her community
• Her psychological conditions were well managed prior to the accident. As a result of the accident, she developed severe PTSD
• Medical experts agreed that she will require a total knee replacement in future, and the prognosis for her knee injury is poor.

For loss of earnings damages:

• On 18 December 2017, the Plaintiff was offered and accepted full-time employment in a receptionist role. She could not commence as a result of the accident. She had qualifications in aged care and childcare and had only ever held part time employment
• The Judge did not doubt that the Plaintiff intended to work until retirement age. However, she also considered the constraints of her psychiatric injury, her older age, her low skills in this new career and her reliance on personal networks to find employment
• It was therefore highly unlikely that the Plaintiff’s employment would not have been disrupted or ended before she reached retirement age. The Judge made a 35% discount and awarded the Plaintiff $70,000 for past economic loss and $243,000 for future economic loss.

Theodoros Christodoulou v Gaofei Yang [2021] VCC 840

FACTS

• On 24 December 2017, the Plaintiff was riding his motorcycle. Whilst stationary at the lights, he was struck by the Defendant’s car from the back. The Plaintiff was ejected and thrown back with his head striking the windscreen and he was then thrown over the top of the car
• He sustained lower back injuries, however, his most significant injury was his psychiatric condition, being PTSD with major depression, obsessive compulsive disorder, memory problems and the worsening of his pre-existing stutter as a result of the incident.

DAMAGES AWARDED

• $350,00 for pain and suffering
• $682,822 for loss of future earnings.

CONSIDERATIONS WHICH IMPACTED THE AWARD

For pain and suffering damages:

• At the time of the accident, the Plaintiff was a relatively young man who enjoyed a range of activities such as deer hunting, four-wheel driving and rock climbing. He was happy, sociable man who was endeavouring to start his own business
• As a result of the accident, the Plaintiff avoided social situations as his stutter had worsened to the point of embarrassment. This was evident while the Plaintiff was giving evidence
• The Plaintiff’s OCD manifested in instructive thoughts related to fear of committing suicide. The Plaintiff’s friend gave powerful evidence that they had previously enjoyed the great outdoors together. He is now in a situation where he had to convince the Plaintiff to handover his firearms for safekeeping, as he was concerned that he was a suicide risk.

For loss of earnings damages:

• The Judge accepted the evidence of his long-term treaters about his work capacity over those of Independent Medical Examiners
• The Judge accepted a total incapacity from the date of injury to age 67 as a result
• The Judge applied a 15% discount rate for vicissitudes for future loss. The Defendant argued that 15% was the incorrect amount as he was young and would likely recovery after litigation. The Judge disagreed and stated that there was no evidence to support this. 

If you or a loved one have suffered an injury as result of a transport accident, it is important to get legal advice early. To arrange your free initial consultation, contact our legal team on (03) 9321 9988 or submit an online enquiry today.