There are three primary forms of monetary compensation available to people injured in transport accidents under the TAC scheme in Victoria. They are:
- Loss of earning payments, in particular:
- Loss of earning payments for the first 18 months; and
- Loss of earning capacity payments after the first 18 months, for up to another 18 months.
- Impairment benefits; and
- Common law damages.
Loss of earning payments
With the exception of the first five days of loss, people injured in transport accidents are entitled to loss of earning payments for the first 18 months they are unable to work by reason of their transport accident injury.
There are specific rules that govern the payment of loss of earning payments. However, in general, an individual is entitled to 80 per cent of their pre-accident weekly earnings.
If an injured person has managed to return to some work and therefore only suffers a partial loss of earnings, then they would be entitled to claim 85 per cent of the difference between their current weekly earnings and pre-accident weekly earnings.
The maximum amount that is claimable for loss of earning payments is $1,540 per week (indexed annually).
Loss of earning capacity payments
After 18 months, if a person injured in a transport accident is still unable to return back to work, then they would generally be entitled to claim a further 18 months of loss of earning capacity payments. Again, the injured person’s loss of earning capacity payments is calculated at 80 per cent of their pre-accident weekly earning capacity.
The maximum amount that is claimable for loss of earning capacity payments is $1,340 per week (indexed annually).
Most loss of earnings payments cease after a total of three years of payments. In cases of severe injury, where a person has a 50 per cent or more whole person impairment, they can receive loss of earning capacity payments until retirement age.
Impairment Benefits
After at least three months following the transport accident and once an injured person’s condition is considered stable, they are entitled to lodge an Impairment Benefit Claim for Impairment Benefits.
An Impairment Benefit is a tax-free, lump sum amount in compensation that an injured person is entitled to claim in the event that they reach the minimum impairment thresholds to qualify for compensation.
In order to qualify for Impairment Benefits, the injured person’s level of impairment must be assessed as 11 per cent or more whole person impairment.
Unlike with WorkCover Claims, under the TAC scheme, physical and psychiatric impairments can be combined.
As an example, an injured person is entitled to the following amounts of compensation should they receive the following levels of impairment:
| Level of Impairment | Amount of compensation awarded 2023/2024 |
| 11% whole person impairment | $9,010 |
| 15% whole person impairment | $15,690 |
| 20% whole person impairment | $24,490 |
| 30% whole person impairment | $48,890 |
| 50% whole person impairment | $98,390 |
| 100% whole person impairment | $411,470 |
Common Law Damages
An individual who has suffered an injury by reason of a transport accident is also entitled to seek common law damages if the injured person can show that:
- They have suffered a “serious injury”; and
- That they have suffered a “serious injury” under negligent circumstances (i.e., through the negligence of another driver).
What is a “serious injury”?
An injured person will be deemed to have suffered a serious injury if they have a 30 per cent or more whole person impairment following an Impairment Benefit claim.
If an injured person does not have a 30 per cent or greater impairment, they will need to make a “serious injury application” so that a lawyer for the TAC can assess the application and determine whether or not the injured person satisfies the “serious injury test”.
If the TAC ultimately rejects the “serious injury application”, the injured person will need to commence a case in the County Court and ask that a County Court Judge determine that they meet the “serious injury test”.
What common law damages are available?
There are two forms of common law damages potentially available to an injured person. They are:
- Pain and suffering damages; and
- Loss of earnings damages.
These damages are subject to statutory maximums which are indexed annually. As at January 2024, the statutory maximums are:
- $639,200 for pain and suffering damages; and
- $1,438,310 for loss of earnings damages.
What is the process for obtaining damages?
Damages are generally obtained through two ways:
- Through a process of negotiation; or
- Through the determination of a Judge or Jury (made up of six people randomly selected).
How much are injuries worth?
The following factors will be taken into account when assessing the quantum of someone’s damages:
- The severity of the injured person’s injuries
- The significance of the pain and suffering consequences on the injured person’s life
- The age of the injured person; and
- The degree to which the injured person is incapacitated for employment.
How much has been awarded to injured people for pain and suffering damages in the past?
To provide an indication on how injuries have been historically assessed, the below are some recent case examples of what successful Plaintiffs have been awarded in the past:
| Case name | Key facts | Damages awarded |
| Kirk v TAC [2019] VCC 1126 | Plaintiff suffered injuries after a rear end collision with an unidentified driver. Plaintiff suffered an aggravation of underlying degenerative condition of the cervical spine which required a fusion surgery. | $75,000 pain and suffering |
Susan Biasci v Peter McConachy [2018] VSC | Plaintiff suffered an ACL tear which required a knee construction. | $90,000 pain and suffering |
| Collins v Staminirovitch [2017] VSCA 342 | Plaintiff suffered a range of conditions/injuries, including: injuries to head, face, right shoulder, spine, neck and right knee; loss of smell and hearing; headaches; some visual impairment; dental injury, scarring, psychological condition (PTSD, anxiety, depression, adjustment disorder). Plaintiff underwent six surgical procedures, but had a good recovery. | $100,000 pain and suffering |
| Duman v Kaini [2020] VCC 895 | Plaintiff suffered injuries after a car collided into the Plaintiff’s stationary car. Plaintiff suffered chronic pain disorder, psychological injury (major depressive disorder) which required hospitalisation and transcranial magnetic stimulation treatment. | $300,000 pain and suffering |
Given the complexity of navigating TAC Claims, if you have suffered an injury by reason of a transport accident, it is strongly recommended that you obtain expert legal advice as soon as possible.
Should you wish to better understand your entitlements under the TAC scheme, please submit an online enquiry or contact us on (03) 9321 9988 for a no-obligation, free phone consultation.
