TAC common law claims
The expressions TAC common law, TAC common law claim and TAC common law damages refer to a lump sum claim that a person is entitled to claim if they suffer a ‘serious injury’ in a motor vehicle accident and where the injury was caused or contributed to by someone else’s negligence.
What does common law mean?
The term common law refers to decisions that have been made by courts that have resulted in precedents being made.
When courts make decisions on cases, in some instances those decisions create new laws which adds to the body of law which is referred to as common law.
Keep in mind however that if you pursue a common law claim for damages after a motor vehicle accident, this does not necessarily mean that your matter will go to court.
In fact, most common law claims after a motor vehicle accident do not end up there.
What must be proven to succeed in a TAC common law claim?
There are two things that must be proven;
1. That you suffered a serious injury.
2. That there is negligence on behalf of another party.
Serious injury
In order to bring a TAC common law claim, a person must first prove they have suffered a serious injury in the accident.
Under the relevant legislation, there are two ways that you can obtain a serious injury certificate.
A serious injury certificate is a document that legally recognises that you have a serious injury that results from the motor vehicle accident.
You can read more about ‘serious injuries’ here.
The 30% or more test
If, for the purposes of your impairment benefit lump sum claim you have been assessed as having a 30% or more whole person impairment rating, then you are automatically deemed to have a serious injury and you’ll be provided with a serious injury certificate by the TAC.
Keep in mind however that the TAC will still require a serious injury application to be made in order to obtain a serious injury certificate.
The narrative test
The second way that you can obtain a serious injury certificate is if you satisfy one of the four definitions of ‘serious injury’ which are outlined in the relevant legislation (the Transport Accident Act 1986 – section 93 (17)).
You can see the definitions below:
This is the most common way that people who are involved in a motor vehicle accidents obtain serious injury certificates.
The narrative test is all about looking at the impact that an injury has on a person’s life and will have into the future.
It is about comparing how the person was before they were involved in a motor vehicle accident and how they are after the motor vehicle accident.
The bigger the difference between the before and after, the more likely the TAC is to conclude that they have a serious injury.
In order to obtain a serious injury certificate via the narrative test, you need to show that the consequences of the injury on you are very considerable.
Keep in mind that injuries can have different effects on people and it is important to consider the actual impact of an injury will have on a specific person.
To illustrate this point, let’s say that to people of been involved in a motor vehicle accident and both of them have suffered an injury to their right shoulder.
One of those people is a retired man. The other is a promising tennis player in their early 20s.
Although both injuries might be the same, the impact that the injury will have on the tennis player in his 20’s is likely to be much more significant than on the retired man.
This illustration points to the fact that in determining whether someone has a serious injury following a motor vehicle accident, the impact of the injury as a whole is important, and one must look at the consequences of the injury and how the injury has and will impact a persons life.
What is the process for obtaining a serious injury certificate?
This is one part of a TAC claim where we would strongly advise that you have a lawyer to assist you.
In order to obtain a serious injury certificate after a motor vehicle accident, you need to prepare and lodge a serious injury application.
In general, a serious injury application includes the following;
1. Serious injury claim form document.
2. An affidavit that is sworn by you. This is a document that tells your story and illustrates how the injury that you are claiming is a serious injury and how it impacts your life.
3. Medical material in support of your application which can include material from doctors that have treated you as well as doctors that you may have seen that have assessed your injury (independent medical examiners/medico legal practitioners).
4. Material supporting any loss of earnings claim which may include copies of your taxation returns, and other pay material.
Once the serious injury application material has been compiled, it gets sent (or lodged online) to the TAC.
The TAC then consider the application.
They need to determine whether to accept your application or not – that is, they need to determine whether you have a serious injury or not.
If you have previously been assessed as having a 30% or greater whole person impairment rating, then you will be provided with a serious injury certificate but you still need to go through this process.
Once a decision has been made by the TAC in relation to your serious injury application, they will advise you or your legal representative in writing as to their decision.
What happens if my TAC serious injury application is granted?
If your serious injury application is granted by the TAC, the first thing that will happen is that a conference will be arranged between the parties involved to try and resolve the matter.
This is called a settlement conference.
Generally speaking, a settlement conference will occur within 1 to 2 months after you are granted a serious injury certificate.
If the matter does not resolve at the settlement conference, then, if you wish to pursue the matter, you must issue proceedings in either the County Court or the Supreme Court.
Keep in mind however that even if you have to go down this road of issuing court proceedings, there are a number of opportunities for your matter to resolve prior to the matter reaching hearing stage.
You can even resolve on the day that your matter is listed for hearing.
Most matters that get listed to be heard in court resolve by way of negotiation between the parties.
However, there is always a small chance that your case will need to be heard in court, particularly if there is a dispute as to the facts of the case or if agreement can’t be reached as to the appropriate amount of compensation.
What happens if my serious injury application is rejected
If the TAC reject your serious injury application and you still wish to proceed with the matter, then you need to issue court proceedings in the County court.
This is done by the issuing what’s called and originating motion.
Your matter that needs to be prepared for hearing in court.
The purpose of this hearing is for a judge to determine whether you have a serious injury or not. It is not about the issue of negligence.
In preparing the matter for court it is likely that update medical material will be obtained from your treating medical practitioners and you may be asked to attend an assessment with a medicolegal doctor or maybe more than one.
If you succeed at court then you’ll follow the process as outlined above (as if you’re serious injury application was successful initially).
That is, the matter will proceed to a settlement conference where the parties will try and resolve the matter.
Negligence
The second thing that must be proven to succeed in a common law claim, in addition to showing that you’ve suffered a serious injury, is negligence.
Negligence means that, in simple terms, another party has acted negligently which contributed to the accident and your injury or injuries.
It means a failure of another person to take reasonable care to avoid causing new injury.
A simple example of negligence is if a person failed to give way at a give way sign and hit another car.
How to prove negligence?
Typically, if police attend the scene of an accident, they will provide a report which will sometimes comment on who they believe to be at fault for the accident.
Many times, this is sufficient to prove that negligence.
Other times however it is not immediately clear as to who was at fault for an accident.
If this is the case, Then further investigation may be required to help the parties identify who was at fault for an accident.
There is also a concept called contributory negligence.
This means that although there may be another person who was at fault for the accident, you, the injured person, may have contributed someway to the accident.
Even if you’re able to show that you have a serious injury as a consequence of a motor vehicle accident, if negligence does not exist on behalf of another party you will not succeed in your TAC common law claim.
Damages
If you are successful in showing that you have a serious injury and also that there was negligence on behalf of another party, you are entitled to recover common law damages (lump sum).
You are able to recover two types of damages, being;
1. Pain and suffering damages
2. Economic loss damages, sometimes referred to as pecuniary loss damages.
Pain and suffering damages
As the name suggests, pain and suffering damages seeks to compensate you for the pain and suffering that you’ve gone through as a consequence of the accident and will likely go through into the future.
When considering the pain and suffering consequences of an injury on a persons life, the following things may be considered;
- Impact on enjoyment of life
- Social activities
- Recreational activities
- Performance of household chores
- Performance for family
- Mobility
- Sleep
- Impact on your ability to care for yourself.
Economic loss damages
The second thing that you are able to be compensated for under a TAC common law claim is for any lost earnings that result from the injury.
This is compensation for loss of earnings that you’ve had since the injury and will likely have into the future.
As an injured person, you’re able to claim lost income beginning from the 18 month anniversary of the accident through to when your common law claim is resolved.
In addition to this, you’re able to claim loss of income into the future usually to retirement age if you can prove that you would’ve worked until retirement age and the injury has impacted your ability to work.
Keep in mind that when calculating your loss of earnings, you will not be compensated dollar for dollar for any lost income.
How loss of earnings are calculate it is more complex than this and for this reason it is important to obtain advice from a specialist TAC lawyer to ensure that you are claiming what you are actually entitled to.
Common law compensation amounts
Currently, the maximum TAC common law payout for pain and suffering that can be awarded is $558,760. The minimum threshold amount is currently $55,840. This is the minimum amount that you must be awarded.
The maximum amount that you are able to be awarded for loss of earnings in a TAC common law claim is $1,257,290, and the minimum amount is $55,840. If your loss of earnings claim does not get over this hurdle, then you will not be entitled to any payment of loss of earnings benefits.
How long do I have to lodge a TAC common law claim?
TAC common law claims should be commenced within six years from the date of the accident.
In some cases however, this period can be extended but as a general rule you should consider six years is all you get.
Courts have a discretion to extend the limitation period in certain circumstances but you should not rely upon this.
How long will a TAC common-law claim take?
It is a common misconception the common law claims will take years to resolve.
Yes, every now and then there may be a common law claim that will take many years to resolve.
However, many common law claims resolve in a matter of months after lodgement of a serious injury application.
Keep in mind however that in order to bring a TAC common law claim, the injuries suffered in the accident need to be stable.
That is, they are not getting any better and not getting any worse.
The reason that your injuries need to be stabilised is because you are getting compensated for any permanent impairment that you are left with and the parties involved need to know what impact the injuries are likely to have on your life and they can only determine that once the injuries have stabilised.
Does a pre-existing injury stop me from pursuing a TAC common law claim?
If you’ve had an injury prior to the motor vehicle accident which was made worse as a consequence of the accident, you are sable to pursue a TAC common law claim.
It’s important to have a lawyer if this applies to you.
This is because, working with doctors, your lawyer will need to disentangle what impact the motor vehicle accident had on your injury and will need to try and disentangle the impact of your pre existing injury.
It is important to keep in mind that an injury does not need to be a new one.
If it’s an aggravation or exacerbation of a pre-existing injury, you may still be entitled to claim common law lump sum compensation.
How can I give my TAC common law claim the best chance of success?
There are two recommendations that we have to give your common law claim the best chance of success.
The first is to be honest about the impact that injury has on you. The second is to make sure you tell your lawyer (if you have one) about any past injuries that might be relevant.
Conclusion
A person may be entitled to obtain common law lump sum compensation if they suffered a serious injury in an accident, and that accident was contributed to by the negligence of another party.
The first step to initiate a claim is to prepare and lodge a serious injury application.
If successful, a person can be compensated for pain and suffering alone, or pain and suffering and economic loss.
A common law claim should be initiated, in most cases, within six years from the date of accident.
