In Victoria, the TAC scheme provides certain benefits to those injured in traffic accidents, even where an injured person was at fault. These benefits include recovery of medical and like expenses and weekly payments, and are known as 'no fault' entitlements. However, in order to obtain compensation at common law, it must be found that another party was negligent in the circumstances of the traffic accident. Ordinarily, the person who causes the accident cannot claim compensation at common law. Sometimes, the question of who caused the accident is not straightforward. An infringement notice - even one that has already been paid - is not necessarily the end of the story. Even where a person's vehicle has caused physical or property damage to others, there may be legal arguments available which, if established, mean that the person driving the vehicle is not negligent. One of these arguments is that the driver acted 'the agony of the moment'. This argument would assist a driver who, while they struck someone or something, still acted 'reasonably' considering the surrounding circumstances. Relevant situations may include where a person collides with another vehicle because they were forced to apply their brakes abruptly or suddenly swerve to avoid hitting something. If this defence is successfully employed and the driver is able to prove that their actions were reasonable in the circumstances, then there ought not be a finding of negligence against them. Indeed, negligence may be argued against the party that caused the issue which gave rise to the 'agony of the moment' for the driver. In this case, the driver could then pursue a common law claim. If you have been involved in a traffic accident and you do not believe that you were at fault, call the experts at Redlich's Work Injury Lawyers on (03) 9321 9988.