TAC dependency claim process and entitlements

by Road Accidents site | Jul 21, 2021 | TAC

TAC dependency claim process and entitlements

TAC dependency claims process graphic

When a family member or loved one dies in a transport accident, certain family members will be entitled to payments from the TAC.

This is the case whether or not the deceased was at fault for the accident.

The first and most obvious payment that can be made by the TAC is covering funeral and related expenses.

Other than establishing someone died in a transport accident there are no other requirements to claiming funeral expenses.

The TAC will cover the cost of the funeral (up to a certain fixed amount) as well as paying for related expenses such as a headstone or cremation, and in some cases, travel for some family members to attend the funeral.

Currently TAC will pay up to $16,410 (inclusive of GST) for funeral expenses, with the amount changing at the end of each financial year.

Once the claim for funeral expenses is accepted this also creates an entitlement for family members to have counselling paid for by the TAC.

There are caps on the amount of counselling that can be obtained, but in most cases it will be sufficient to cover the counselling required following the death of the family member.

Family members include spouses whether married or in de facto relationships, parents, children, grandparents, brothers and sisters of the person who has died.

To be eligible, a doctor, a registered psychologist or qualified social worker must provide the counselling service.

The TAC will pay up to $17,410 per family.

Other benefits – dependency payments

Other benefits that are available in these situations include a dependency lump sum payment for dependent family members, as well as potentially a fortnightly payment for dependents.

What does this mean?

Well, there are many different situations that can apply in terms of family dynamics and reliance upon the deceased for income.

Let’s look at the most straightforward example – of a spouse dying in a car accident.

Let’s say that the deceased worked full-time and earned $1000 per week.

The couple shared their finances and had joint bank accounts and paid for their everyday living expenses and bills jointly.

The surviving spouse would be entitled to a lump sum from the TAC. The lump sum is calculated based upon the age of the deceased.

The older the deceased was at the time of death the lower the payment will be.

The reasoning for this is because the payment replaces lost income that would have been earned by the deceased.

The older the deceased, the lower amount of future earnings they would have made.

The surviving dependent is also entitled to a fortnightly weekly payment.

The calculations surrounding this payment will be complex, but they are generally based upon the average earnings of the deceased which are then paid at a 20% reduction.

In circumstances where the deceased was earning over the threshold amount for the TAC, then the payment will not exceed the TAC cap.

The current maximum fortnightly payment is $2,980 gross, or $1,490 gross per week.

Those payments can continue for up to five years or until the recipient of the payments reaches the age where they would be entitled to a pension from Centrelink.

There are more complex situations such as where the deceased had more than one partner or where there is a dispute between two or more people who say that they were the sole partner of the deceased.

These situations are dealt with according to the facts of each case.

If you have been affected by a decision made by the TAC in these circumstances, you should contact a lawyer.

If the deceased was caring for children or responsible for housework the TAC can pay some part of the cost of paying someone to help with childcare or household chores that the deceased did.

As with all TAC payments, there is a cap on how many hours per week will be paid as well how long the benefit will go for.

Example:

Greg and Tina were married and did not have any children.

Tina died in a car accident where another driver was at fault as they went through a red light and hit Tina’s car.

Tina was a high earner, bringing in $3000 per week.

She was 35 years old.

The TAC would pay for Tina‘s funeral and associated expenses. The TAC would also pay for counselling for Greg and any other family members (such as Tina’s brothers and sisters) of up to $17,410.

Greg would also be entitled to a fortnightly payment of $2980 gross.

This is obviously significantly lower than Tina’s weekly earnings.

As noted above, the TAC fortnightly payment is capped and that is why Greg will not receive Tina’s full wage.

Greg would also receive a lump sum of $195,190 (the maximum payable up until July 2022).

Greg should then get legal advice as to whether it is worthwhile bringing a claim for common law damages against the TAC.

Greg has already received $195,190.

He will receive five years of fortnightly payments of around $3000 per fortnight.

The question becomes what Tina‘s earnings would have been over her working life compared to the payments referred to above that Greg will receive.

Given Tina was such a high earner it is obvious that the TAC payments that Greg is entitled to will not cover the loss of wages that would have been earned over the remainder of Tina’s working life.

As such, Greg would be advised to bring a common law claim and he would receive a further lump sum.

The process for claiming a dependency lump sum from the TAC is relatively straightforward.

Your lawyer will engage with the TAC and a conference will be arranged before any Court proceedings are issued to try and resolve the claim.

In Greg’s matter, it is very likely that the TAC and Greg and his lawyers will be able to agree upon a further lump sum amount that should be paid to Greg.

Once a settlement amount is agreed upon and paid, Greg’s fortnightly benefit will cease.

If no agreement is reached, then Greg’s lawyers will have to issue Court proceedings on his behalf.

Children

While the first place we look for dependency payments is to a surviving spouse, there are certain situations where payments will be made to surviving children of the deceased.

This arises when one of the following three circumstances are met:

there is no surviving dependent partner benefit payable
the surviving partner was not the person responsible for taking care of the child
where the surviving partner dies (due to any cause)

TAC and the Transport Accident Act describe a child in these circumstances as:

under 16 years of age, or
has attained the age of 16 years but is under the age of 25 years and is a full-time student or an apprentice, and
is wholly, mainly or in part dependent on the deceased person for economic support at the date of the death.

If a child fits the above criteria, the TAC will cover:

a biological child of the person; or
an adopted child of the person (includes the deceased’s adopted child or their partner’s adopted child but excludes a child adopted by another person); or
a step- child of the person; or

a child of the person conceived prior to the death and who is born after the transport accident but does not include a child who has a spouse or a domestic partner.

There is also an education allowance payable to dependent children in school or other study.

Common law rights

In circumstances where the lump sum payment and fortnightly payments from the TAC will not replace the future lost income of the deceased, there is the potential to bring a common law claim for damages if there is another party at fault for the accident.

For example, where the deceased fell asleep at the wheel and lost control of the car causing the accident, there would be no entitlement to bring a common law claim.

You should note however that regardless of fault, the fortnightly payment and dependency lump sum are still payable.

In circumstances where there is fault on behalf of another party then a common law claim could be brought.

You will need legal advice as to whether it is worthwhile to bring such a claim has all payments made by the TAC must be taken into account (i.e. deducted from any settlement amount) and it will also cause any future payments from the TAC to cease.

Depending upon the age of the deceased at time of death and their potential future earnings, it may or may not be worthwhile pursuing a common-law claim and this is why legal advice is required.

This situation can be further complicated by circumstances where a child is receiving a dependency payment from the TAC.

This is because let’s say for example there is a spouse and there are children that are also receiving payments from the TAC.

It may be beneficial for the spouse to make a common law claim and be paid a further lump sum, but this would also trigger the termination of the children’s ongoing payments.

Consideration needs to be given to effects like these that a common law claim can bring.

Personal injury claims

Apart from all of the entitlements mentioned above, there is also the potential for a completely separate TAC claim to be brought by any family member for their own psychological injury.

This requires a separate claim to be made by the injured person.

There is not necessarily a requirement that the injured person witnessed the accident or was involved in it in any way.

For example, the surviving spouse of a deceased who was at home when the accident occurred and did not attend the accident scene could still lodge a claim for their own injury.

Any benefits paid through a personal TAC claim are separate and discrete from the dependency claim.

This may result, depending upon the nature of any injuries suffered by the claimant, in additional weekly payments or lump sums being paid.

Conclusion

In nearly all circumstances where someone dies in a car accident, a TAC will pay for funeral and related expenses.

They will also in most cases pay a lump sum and fortnightly payment to a surviving spouse or other dependent as long as the deceased was an earner.

In limited circumstances where the TAC payments do not properly cover the future lost earnings of the deceased, and there is fault on behalf of another party other than the deceased, there may be an entitlement to bring a common law claim.

In addition to the above, if a family member is affected psychologically by the death, they may be able to lodge their own claim for psychological injury, which will have it’s own set of entitlements distinct from those payable under the dependency claim.

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Who is at fault for a rear end collision?

by Road Accidents site | Jul 8, 2021 | TAC

Who is at fault for a rear collision?

Who is at fault for a rear end collision graphic

Rear end collisions and are very common in Australia and they count for a large number of accidents.

The default position in the rear end collision is usually to assume that the driver that impacted the car in front is usually at fault. However this is not always the case is sometimes a vehicle in front can be at fault.

Which party is at fault in a rear end collision?

Determining who is at fault for rear end collision is important in Victoria for two reasons.

The first is for insurance purposes. Usually, the at fault drivers insurance company (if they have insurance, or them if they don’t) is responsible for compensating the other party.
The second reason is that if you wish to pursue TAC compensation, if you are injured, then you will need to prove that another party was at fault for your accident.

Are you always at fault if you hit a car from behind?

No. It’s more common for the car following to be at fault than the lead car. However, there are number of considerations when determining whether the vehicle that was following the lead vehicle might be at fault.

Was the following driver distracted in any way? For example, were they texting or on the phone or eating or otherwise not paying attention to the traffic in front of them?
Was the driver travelling too close to the vehicle in front? This is a common cause of accidents in Victoria.
Falling asleep.
Negligent car maintenance such as brakes not maintained or bald tyres.
Was the driver under the influence?

When is the vehicle in front likely to be at fault for the accident?

Sudden breaking
Reversing into the car behind
Driving under the influence
Driving with broken brake lights or taillights
Sudden changing of lanes
Failing to pay attention to the traffic conditions. For example, they may be driving distracted and not notice vehicles in front of them have slowed down or stopped, causing them to break suddenly.
Pulling out in front of another vehicle.

Are both parties responsible?

It may in fact be that both vehicles are somewhat to blame for an accident. For example, it may be that one vehicle is determined to be 30% responsible for the accident and another 70% responsible.

The opinion of police if they attended the scene and produced an accident report will be very important in determining who is at fault for a rear end collision.

Also important will be the comments and statements of any witnesses who saw the accident or witnessed the events leading up to the accident.

The final thing that will be important is any statements made by you and the other driver.

What can I claim by way of compensation after a rear end collision in Victoria?

You’re able to claim TAC benefits regardless as to whether you were in the lead car or the vehicle following the lead car.

You are also able to claim benefits regardless as to whether you were at fault for the accident or not.

However, fault will impact what you’re actually entitled to claim.

If it is determined that you were at fault for the accident, then you will still be entitled to claim payment of medical expenses if you need them for the treatment of any injuries sustained in the accident and claim income replacement benefits if your ability to work has been impacted.

In addition, you are also able to pursue a claim for impairment benefits which is a lump sum claim that people are able to pursue if they are left with a permanent impairment as a consequence of a motor vehicle accident. This is the case even if they are at fault for the accident.

If someone else was at fault for the accident, you are able to claim the above entitlements and in addition, you might be entitled to pursue a common law claim for damages.

In order to claim common law damages, you need to demonstrate that you have a serious injury is a consequence of the rear end collision. You also need to show fault on behalf of another party.

If you were at fault for the accident then you will not be entitled to pursue a common law claim for damages.

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Financial assistance after a car accident (Vic)

by Road Accidents site | Jun 18, 2021 | TAC

Financial assistance after a car accident (Vic)

If you’ve been involved in a car accident in Victoria, there are two main ways that you can obtain financial assistance.

The first is via an insurance claim under either your insurance or the insurance of the other party (if there was one).

The second way is via the lodgement of a TAC claim.

(Also note – there’s no reason why you can’t pursue both).

Pursuing an insurance claim

An insurance claim can cover you for the cost of any damage to your vehicle.

It can also cover you for the cost of any damage to property that was in the vehicle at the time of the accident, as well as the cost of hiring a replacement vehicle.

Pursuing a TAC claim

The TAC scheme is designed to compensate people that have been involved in motor vehicle accident who have suffered injuries.

The TAC do not pay for property damage. That is, they will not pay for the cost to repair or replace your car, bike or other motor vehicle. They will only compensate you for injuries that you have suffered.

An important thing to note here is that you do not need to show that someone else was at fault in order to pursue a TAC claim.

For example, you could’ve been driving your car along the road and fallen asleep at the wheel and been 100% the cause of the accident.

No one else is at fault for the accident and you are able to lodge and have accepted a TAC claim.

Fault will impact what you can claim however.

This will be discussed further on in this article.

What TAC financial assistance can I claim after a car accident?

If you’ve lodged and have had accepted a TAC claim, you’re able to claim the following;

Medical expenses

The TAC will pay the cost of any reasonable medical expenses that you need to treat any of the injuries relating to the accident.

When determining whether the TAC will pay for something, they will consider whether the medical expense is reasonable.

An example of reasonable would be if you need a physiotherapy once a week following an accident.

It would in many cases be unreasonable however for you to obtain physiotherapy every day.

The TAC will pay for medication, GP attendances, specialist appointments, manual therapy such as physiotherapy, chiropractic treatment and osteopathy.

Imaging scans are covered, that is MRI, x-rays, CT etc.

They will pay for modifications to a car or to your home if necessary.

They will also pay for travel expenses to and from medical appointments.

Keep in mind however that the TAC have scheduled fees for which they pay.

So if a particular medical provider charges over what the TAC will pay for a service, then you will be left paying the gap amount to the provider.

However, many medical providers will limit the amount they bill to avoid this.

Income payments

If you’ve lost income as a consequence of not being able to work, whether that be a partial restriction on your ability to work or a total restriction on your ability to work, the TAC can pay income payments to you for up to three years post accident.

In order to obtain income payments from the TAC you’ll need certificates of capacity.

These are specialised TAC certificates that a medical practitioner can provide to you.

You’ll need certificates of capacity that cover all the periods of your incapacity.

Impairment claim

This is a lump sum claim.

Anyone that is injured on the road and that has some permanent impairment is able to pursue an impairment claim.

In order to pursue the claim your injuries need to be stabilised.

This means that they are not getting any better not getting any worse.

A general guideline as to how long it will take for injuries to stabilise is 12 months from the date of accident however sometimes this can be less, sometimes more depending upon the nature of the injuries.

What happens is doctors will assess your injuries and grade them by putting percentage figures on them.

All of these percentage figures will then get combined into an overall whole person impairment rating.

This whole person impairment rating will then match up to a compensation amount that is set out in a table.

The doctors that assess your injuries are specialised doctors who have undergone training that enables them to grade injuries in legal cases.

You are not able to use your own doctor or specialists.

The compensation amount that you’ll be paid under this claim depends upon the assessments that the doctors have given you.

Common law claim for damages

The final entitlement under a TAC claim is a common law claim for damages.

This is another lump sum claim, however it is very different to an impairment claim.

For the impairment claim you do not need to show that someone was at fault in order to pursue the claim. You only need to have some permanent impairment that has stabilised.

For a common law claim however you need to show that someone else was at fault for your accident.

Even if you were somewhat to blame, there must be someone else that contributed to the accident in some way. This is called negligence.

The second thing that you need to show to succeed in this claim is that you have a serious injury.

This is a legal term that means that an injury that you suffered in the accident is a serious one.

You can be classed as having a serious injury if you have been assessed as having a 30% or greater whole person impairment rating relevant to the impairment claim referred to above.

The other way that you can be classed as having a serious injury is via what’s called the narrative test.

The narrative test is basically you telling your story. You need to paint a before and after picture as to how you were before the injury and how you are now and will be into the future.

The bigger the difference, that is, the bigger the impact the injury and accident has had and will have on your life, the more likely you are to be classed as having a serious injury.

If you succeed in a common law claim, that is, if you show that you’ve suffered a serious injury as a consequence of someone else’s negligence, then you can be compensated for two things.

The first is pain and suffering.

This is the pain and suffering that you have experience since the injury and will experience into the future.

The second thing is economic loss.

You can read more about what the TAC covers here.

Who is eligible for TAC

The TAC will pay compensation to a person who suffers an injury in a transport accident that happened:

• in Victoria (regardless of whether the vehicle involved is registered in Victoria or interstate), or

• interstate and which involved a Victorian registered vehicle and the person injured is:

• a Victorian resident, or

• an occupant of a Victorian registered vehicle.

Do I get pain and suffering compensation following a car accident?

Under the TAC scheme, both lump sums are designed to compensate you for pain and suffering.

An impairment benefit claim, as described above, although it is a claim where the amounts are fixed based upon whole person impairment ratings, any payment you receive under this claim is considered payment for pain and suffering.

This can be a bit odd and I’ve had clients query this. They ask how can this be a pain and suffering payment when their pain and suffering really isn’t taken into account to a significant degree.

All that happens with the claim is they get assessed by doctors who grade the severity of their injuries according to guidelines that are set out in the American Medical Association Guides to Permanent Impairment and then the doctors will put percentage figures on those injuries.

It doesn’t matter for the purposes of an impairment claim whether an injury causes you much more pain than someone else. Whether your sleep is affected and theirs isn’t.

It also doesn’t matter for example that you can no longer play football and you are in the prime of your athletic life, and they are at retirement age.

These are all very good points and very valid.

However the impairment claim is considered compensation for pain and suffering despite the above.

One benefit of this is that the law says that pain and suffering payments are not subject to tax.

So any settlement monies that you get will not need to be declared as income.

The second benefit is that any compensation you receive into this claim will not impact on your entitlement to receive income payments from the TAC or medical expenses.

In relation to a common law claim part of what you can be compensated for is pain and suffering. So this will take into account the pain and suffering that you have suffered as a consequence of the accident and will likely suffer into the future.

Unlike the impairment benefit claim where the amount that you can receive is not impacted by your story and the extent of the pain and suffering that you have experienced and will experience, with a common law claim your story is critical.

The more pain and suffering consequences you have, the more your claim is worth from a pain and suffering perspective.

Here’s an example.

Let’s say that you have two people who are involved in motor vehicle accidents as a consequence of someone else’s negligence.

Both of these people suffer injury to their left shoulder.

The first person is retired and is right-hand dominant.

The second person is in his early 20s, is left hand dominant and is a promising competitive tennis player.

Although both people may have suffered the same injury (and under an impairment claim they will be compensated the same amount) with a common law claim the actual impact of the injury on a persons life is taken into account.

So you could imagine that the consequences of the injury on the second person is likely to be far more than the consequences of the injury on the first person.

As a result, the compensation amount for pain and suffering damages that is to be paid to the second person will likely be substantially more than those paid to the first person.

Does it matter that the other driver did not have insurance?

For the purposes of claiming TAC benefits, it does not matter that the other driver involved in the accident had no insurance.

TAC insurance is separate to car insurance.

TAC insurance is paid by every driver that registers their vehicle annually via a TAC charge. This is an amount included in your vehicle registration that is designed to cover the cost of TAC insurance in the event of an accident.

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I was a passenger in a car accident and was injured

by Road Accidents site | Jun 18, 2021 | TAC

I was a passenger in a car accident and was injured

If you were a passenger and you suffered injury, you are entitled to lodge a TAC claim and be paid benefits just like anyone else that is injured in a motor vehicle accident.

Your entitlements are the same as if you were involved in an accident as a driver of a vehicle.

That is, you are entitled to the payment of weekly payments of compensation if you are not able to work or if your ability to work has been impacted.

You’re entitled to the payment of medical expenses if you need treatment for injury sustained in the accident.

You’re also entitled to pursue an impairment claim lump sum if you’ve suffered a permanent impairment as a consequence of the accident.

Finally, if there was negligence on behalf of the driver of the vehicle in which you were travelling, or on behalf of another road user, you are able to pursue a common law claim for damages.

This is another lump sum claim in which you can be compensated for the pain and suffering that you have experienced as a consequence of the accident and the pain and suffering that you may experience into the future.

You can also be compensated for any loss of earnings that you’ve experienced and may experience in the future.

Who pays benefits if I was a passenger and the driver of the vehicle in which I was travelling was at fault?

If you were injured and the driver of the vehicle in which you were travelling was at fault, the TAC is responsible for the payment of any benefits.

This includes payment of your no fault benefits (income payments, medical expenses, impairment benefit lump sum) and a common law claim for damages.

In relation to a common law claim for damages, out of the entitlements referred to above, this is the only entitlement in which you need to show that someone was at fault in order to claim.

So if you wish to pursue a common law claim for damages, you would need to show that the driver of the vehicle in which you were travelling was at fault in some way.

For example, if the driver of the vehicle drove off the road after missing a bend because they were texting – this would be considered negligent.

If you are successful in pursuing a common law claim against the negligent driver, any compensation amount payable to you would be paid for by the TAC and not the negligent driver.

The negligent driver would be named as the defendant in the matter if it proceeded to court, but they would not be required to compensate you in any way.

This is because the TAC indemnifies all drivers in Victoria when they pay for their car registration.

If the matter proceeds to court, then there is a possibility that the driver of the vehicle may be required to give evidence.

However keep in mind that this is not always the case.

For example, there are different court hearings that can occur during the life of a common law claim.

One such hearing is in relation to whether the injuries that you have suffered are serious or not.

In a court case in relation to this, negligence is not a key consideration and therefore the driver of the vehicle will not be required at court.

However, if there is a dispute regarding negligence, then it is possible that the at fault driver may end up in court.

This also applies if there is a dispute as to how negligent one party was versus the other. For example, one party may argue that they were 20% responsible and the other party was 80% responsible, whereas the other party will argue that they were both 50% responsible.

In cases such as this there is a possibility that the matter may end up in court.

Even if the matter does end up in court, the at fault driver is not required to pay any costs associated with representation.

This includes legal costs or court costs.

This is because, as mentioned above, the TAC indemnifies Victorian drivers in the event of accidents in which injuries are sustained.

Who pays benefits when someone else, other than the driver of the vehicle in which I was travelling, was at fault?

As above, the TAC would be responsible for the payment of any benefits in this instance.

The TAC would indemnify the at fault driver and pay any benefits that you are entitled to under the TAC scheme.

Both you and the driver would be able to pursue a common law damages claim against the negligent driver.

Can a passenger sue a not at fault driver for injuries?

No, in order to sue a driver for the injuries that you suffered, you need to show that driver was negligent in some way.

That could mean, for example, that that due to their in attention, they drifted off the road and that caused the accident.

Or they might have been speeding.

There are a number of possible reasons as to why someone may be considered to be negligent in a road accident.

But even if, as mentioned above, the driver was at fault, although you can sue them, the TAC will indemnify them and pay any benefits to you.

What if no one was responsible for my injuries?

Even if no one was responsible for your injuries – that is it was a genuine accident and no one else to blame, you are still able to pursue and have accepted a TAC claim.

An example of a case in which no one is responsible may be if you are a passenger in a car driving along the road at night and a kangaroo jumps out and the driver has to take evasive action and acts reasonably but is unable to avoid crashing the vehicle.

In this case the driver is not likely to be considered to be negligent.

Despite this, you are able to still pursue a TAC claim and have any medical expenses paid, as well as receive payment for any loss of income up to three years post accident (in certain cases beyond three years).

You’re also able to pursue an impairment benefit lump sum claim if you’ve suffered permanent impairment as a consequence of the accident.

You would however not be entitled to a common law damages claim.

What to do as a passenger in a car accident and injured?

If you are a passenger in a car accident and you’ve been injured, in order to initiate a TAC claim you need to contact the TAC.

A TAC claim can be lodged in one of three ways:

The first way to lodge a claim as a passenger is is by calling the TAC.

Tell the person that you speak to that you wish to lodge a new TAC claim.

They will then ask you some questions about what happened. They’ll want to know about what injuries you suffered, whether the accident was reported to police or whether they attended the scene.

They’ll also want you to provide the details of any other vehicles involved, and the details of any witnesses.

They will then send you out some material to sign and return to them.

The second way to lodge a claim is by filling out the TAC’s online claim lodgement form which can be found on their website.

Keep in mind that if you elect to lodge a claim online, you need to have all relevant material and information at hand.

The third way for a claim to be lodged is by the hospital if you attended one after the accident.

Some hospitals will automatically lodge a claim on your behalf. They however sometimes won’t tell you that they’ve done this.

Hospitals lodge claims to ensure that they get paid for the services that they provide.

Conclusion

If you were injured in a motor vehicle accident as a passenger in a vehicle, then you’re entitled to the same entitlements as a driver of a vehicle.

You do not need to show that another party was at fault for the accident, say the driver of the vehicle or another road user, to have a TAC claim accepted.

If the TAC claim is accepted, you’re entitled to the payment of medical expenses and income payments.

You can also pursue an impairment lump sum.

If there was negligence on behalf of another party, whether that be negligence on behalf of the driver of the car in which you were travelling, or another road user, then you may also be entitled to a common law lump sum claim.