TAC claims and serious injury
In addition to the payment of no fault TAC entitlements of medical and like expenses, income payments and an impairment claim, in certain circumstances a person is entitled to claim a common law damages after a motor vehicle accident.
This is a lump sum that aims to compensate people for pain and suffering and any lost income.
Two boxes (in general) must be ticked if you are to succeed in a common law claim for damages.
The first is that the injury that you suffered in the accident needs to be considered a serious injury.
The second is that your injury was caused by the negligence of the other party.
This page will explore the ‘serious injury’ requirement in more detail.
What is a TAC serious injury?
The term serious injury is a legal term. The act that covers TAC claims defines a serious injury as;
- Serious long-term impairment or loss of a body function or
- Permanent serious disfigurement, or
- Severe long-term mental or severe long-term behavioural disturbance or disorder, or
- Loss of a foetus.
What is considered a serious injury after a car accident in Victoria?
In order to be classified as having a serious injury under the TAC legislation, you must satisfy one of the following tests;
The TAC narrative test:
The narrative test is the most common gateway via which people can obtain a serious injury certificate.
This is a certificate that confirms that they have a serious injury.
The narrative test is all about undertaking evaluation evaluation of a persons quality of life following the accident.
It is about taking a before and after picture as to how the person was before the accident occurred and comparing that to how they are after the accident.
The bigger the difference between the two the more likely a person is to be classified as having a serious injury.
Here’s an example of how the narrative test might work.
Lets say that you have two people, both of whom suffered injury to their shoulder in a car accident.
Person 1 is a retired man.
Person 2 is a state level competitive tennis player, about to hit their prime.
You can see that the impact of the injury on person 2 is likely to be significantly more than person 1.
Therefore, person 2 is more likely of the two to obtain a serious injury certificate.
The TAC deemed 30% test:
This is the second possible gate to obtaining a serious injury certificate.
Out of the two options, it is the less common way that people will obtain serious injury certificates following an accident.
In order to satisfy the deemed 30% test, a person injured in the accident in Victoria will need to be assessed as having a 30% or greater whole person impairment rating.
In order to assessed as having a 30% or greater whole person impairment rating, you will need to be assessed by independent medical examiner or examiners.
These assessments usually occur in relation to an impairment lump sum claim (which is a different lump sum claim to a common law claim).
What does a TAC serious injury certificate mean?
A TAC serious injury certificate is a document that the TAC provide to you (and your lawyer if you have one – which if you’re pursuing a serious injury certificate we recommend that you do) that recognises that you have a serious injury resulting from the motor vehicle accident that you were involved in.
Obtaining a TAC serious injury certificate is the first step to obtaining common law damages.
What is the TAC serious injury certificate claim process?
The first step to obtaining a serious injury certificate is for a serious injury application to be lodged.
This is an application that is usually made up of an affidavit document which is a document that tells the story of your injury and how it impacts you and your life.
It paints the important before and after picture as referred to above.
The serious injury application will also include medical material and other documents which will support you application.
The serious injury application is then sent to the TAC who make a determination.
They determine whether to accept or reject your application.
If they accept your application the next step is for the matter to be conferenced between the parties.
If the matter resolves at this conference then you are paid common law damages.
What happens if the TAC reject my application for a serious injury?
If on the other hand the TAC reject your application, what they are saying is that they do not believe that your injury meets the legal requirement of a serious injury.
You are able to appeal this decision to the County Court where it will be the responsibility of the judge to determine if you have an injury that meets the legal definition of a serious injury.
Conclusion
In order to pursue lump sum compensation via a common law damages claim after an accident, the first step is to obtain a serious injury certificate.
This certificate certifies that the TAC believe that you have a serious injury.
There are two ways you can obtain a serious injury certificate.
The first is by the narrative test, which involves painting a before and after picture as to how you were before the injury, and how you are now. The bigger the difference between your before and after pictures, then generally speaking the more likely you are to obtain a serious injury certificate.
The second way you can obtain a serious injury is by getting assessed as having a 30% whole person impairment rating. This usually occurs in relation to an impairment lump sum claim.
Once you have obtained a serious injury certificate from the TAC, then you are able to pursue common law damages.
If you don’t satisfy either of the above tests, then you would need to have a judge decide as to whether you have a serious injury.
In order to commence the serious injury claim process, you need to lodge a serious injury application. This is an application made up, usually, of an affidavit and medical material.
