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;
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.
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.
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.