In Victoria, if you are injured in a transport accident, you may be eligible for compensation. In order to claim compensation, the injury must result from an incident directly caused by the driving of a motor vehicle, motor car, railway train or tram.
If you are injured in a car accident in Victoria, you may be eligible to receive benefits or compensation.
What is a car accident?
Examples of a car accident may include:
- Being involved in a single or multiple car collision, either as a driver, passenger, pedestrian or witness;
- Either hitting or being hit by a car as a cyclist, regardless of whether the car is stationary or moving;
- Incidents caused indirectly by a car, such as;
- being hit by an object falling from or due to a car (i.e. if a car hits a tree and the tree hits you); and
- leaving a child in a car at the end of a journey.
It is important to note that not all compensable injuries resulting from a transport accident include a car. If you were injured as a result of a transport accident that did not include a car as outlined above, contact our legal team for a confidential discussion about your potential entitlements.
How do I make a claim for compensation in a car accident?
If you are seeking compensation for injuries caused by a car accident you must lodge a claim with the Transport Accident Commission (TAC).
If you attend hospital following your accident the hospital staff may assist you in lodging a claim. You can otherwise call the TAC on 1300 654 329 or access the Online Lodgement Portal.
There are strict requirements to meet to be eligible to make a claim, and determining whether you meet those requirements can be difficult and complex. To learn more about the eligibility requirements, click here.
What are the Time limits to lodge a TAC claim?
The time limit for adults to lodge a claim is the later of either:
- one year following the accident; or
- one year following the manifestation of your injury.
At its discretion the TAC may accept claims within three years where there is a reasonable excuse for delay.
If you were under 18 years old at the time of your accident you have until you turn 21 to make a claim.
What compensation is available to me from a car accident?
If your claim is accepted you may be entitled to benefits and compensation, even if you caused the accident.
Medical treatment and associated expenses
The cost of medical treatment for injuries arising from a car accident will generally be covered by the TAC. This can include covering the cost of hospital or doctor visits, surgery and subsequent rehabilitation, medication and ongoing related treatment. It can also include treatment for psychological injuries connected with your accident.
The TAC may also pay for associated expenses including transport fees, counselling for family members, home modifications and home care or assistance.
You have two years from the date an expense is incurred to request reimbursement from the TAC.
If you are losing income due to a car accident you may also be entitled to loss of income payments.
For a total loss of income, payments will usually cover 80% of your pre-injury wages, subject to a maximum cap of $1,500 per week.
For a partial loss of income, payments will usually cover 85% of the difference between your current wage and your pre-injury wage.
At the time of his car accident Bill was earning $1,000 a week.
If Bill is now completely unable to work due to his accident related injuries, his loss of income payments would be around $800 per week. This is 80% of $1,000.
If he is able to work only 1 day per week and “earns” $200, he would be entitled to loss of income payments of an additional $680 per week. This is 85% of the difference between $200 (his current wage) and $1000 (his pre-injury wage).
Loss of income payments are not available for the first 5 days of lost wages, but may be payable after this period for up to 18 months.
If you have ongoing incapacity for work after 18 months you may also apply for loss of economic capacity (LOEC) payments. This is payable between 18 months to three years after your accident.
After three years if your level of whole person impairment (WPI) is determined at over 50% you may be entitled to receive ongoing LOEC payments.
If you are injured in a car accident you may also be eligible to make an Impairment Benefit claim for your physical and/or psychological injuries.
An Impairment Benefit is a lump sum payment that compensates an injured person for a permanent loss of function or movement. The benefit is payable where your level of WPI is assessed at 11% or more.
Your payment amount will increase in accordance with your level of WPI, as outlined below:
The time limit for adults to make an Impairment Benefit claim is 6 years from the date the injury manifests. If you were a minor at the time your injury manifested you have until you turn 24 to lodge an Impairment Benefit claim.
What is Common Law Compensation?
The TAC will generally indemnify the owner or driver of a registered car for injuries caused by car accidents. This allows injured persons who were not at fault for an accident to recover common law damages from the TAC.
If you have been injured in a car accident, but did not cause the accident to occur, you may be able to obtain common law damages for:
- Loss of past and/or future earnings; and/or
- Your pain and suffering.
In order to be successful in obtaining common law damages you must show that:
- You have a serious injury; and
- That the car accident was caused by the negligence of a third party.
Serious injury requirement
You will be deemed to have a serious injury where your WPI is assessed at 30% or more.
Injuries assessed at less than 30% WPI may be considered as “serious” where the “narrative test” is satisfied. This will involve a consideration of the impact of your injury on your life and your restrictions.
Examples of a serious injury may include:
- Long term physical injuries that impact body function and significantly impact your work, social or domestic capacity;
- Long term psychiatric injuries that require ongoing treatment and medication and significantly impact your work, social or domestic capacity;
- Serious scarring or disfigurement; or
- Loss of a foetus.
Car drivers and owners generally owe a duty of care to their passengers, pedestrians, other drivers and those on or near a road. This duty requires drivers to exercise the skill and care of a competent driver, have awareness of the vicinity of the vehicle and act as a reasonable driver would in the particular circumstances.
In order to establish negligent conduct it is necessary to show that:
- A reasonable person in the driver or owner’s position could have foreseen the risk of a car accident; and
- That the driver or owner failed to reasonably respond to the risk.
Brian is driving at 80km/h in a 50km/h residential zone when he loses control of the vehicle and hits a tree, causing his passenger Stacey to have permanent brain damage.
Stacey is unable to return to work and requires ongoing care and assistance. She is granted a serious injury certificate and will be able to claim damages if she can show that Brian has engaged in negligent conduct.
Breaches of traffic regulations do not automatically result in a finding of negligence. However, in the circumstances it would likely be accepted that a reasonable person exercising skill and care would not drive this fast in a residential zone, and that it is foreseeable an accident could occur.
Stacey may be successful in obtaining common law damages for pain and suffering and loss of future earnings.
If an injured person has contributed to their injuries then they may be found to be contributorily negligent. This may reduce the amount of damages an injured person is awarded.
Brian decides to go for a night time drive. Brian gets sleepy and veers onto wrong side of the road, failing to see another vehicle approaching.
Tom is the driver of the other vehicle and failed to turn on his headlights when he began driving. Brian and Tom’s cars collide and Tom is seriously injured.
Tom is granted a serious injury certificate and will be able to claim damages if he can show that Brian has engaged in negligent conduct.
Brian has likely engaged in negligent conduct by driving on the wrong side of the road. However, Tom may have contributed to the accident by failing to turn on his lights.
Tom’s entitlement to common law damages may be reduced to the extent he has contributed to the accident.
I witnessed a traumatic car accident, am I eligible for compensation?
If you witness a car accident and subsequently suffer from a psychological injury you may be eligible to make a claim. If the TAC accepts your claim you may be able to access a range of benefits as outlined above, including;
- reasonable cost of your treatment and associated expenses; and
- weekly payments to cover lost wages.
You may also be entitled to lump sum compensation if:
- you suffer from a severe psychological injury caused by witnessing a car accident; and
- the car accident was caused by the negligence of another party, such as the driver of a car.
If you or a loved one have suffered an injury as result of a car accident, it is important to get legal advice to know your rights and entitlements. To arrange your free initial consultation, contact our legal team on (03) 9321 9988 or submit an online enquiry.