Glossary

To calculate the value of lost earning capacity, i.e. losses that will go into the future, lawyers and Courts are required to use an actuarial formula to put a monetary value on future losses. Damages for pecuniary loss are paid as a lump sum. Consequently, it is necessary to calculate the size of the lump sum in every case. The actuarial formula must be used to put a value on weekly losses that will continue into the future. The result is a lump sum payment of damages for pecuniary loss.

Once a common law claim is resolved or settled by negotiation, the settlement must be documented. This is done by the claimant signing a common law release. The release simply provides a written record of the fact that a settlement has been reached. The TAC will not pay the settlement sum until it has a release signed by the claimant. The signing of a common law release is merely a formality. Once an offer is made by one party that is accepted by the other party, a settlement is reached. The release simply confirms the fact that a settlement has been achieved.

Lawyers will often use the abbreviated expression – “Con Neg”. What they mean is contributory negligence. Contributory negligence is negligence on the part of the injured person. Sometimes, accidents occur as a result of both parties being negligent. If the seriously injured person can show that the other driver was negligent then there is an entitlement to receive TAC common law damages. Those damages might, however, be reduced to some extent by any negligence on the part of the seriously injured person. The reduction made to the injured person’s damages is designed to reflect their contributory negligence.

This is a term used to describe the agreement between the injured person and their lawyer. It is often used to describe a conditional fee agreement which can also be known as a “No Win/No Fee” agreement, a “No Success/No Fee” agreement etc. Such agreements are regulated by the Legal Profession Act. However, the one area where the agreements are not standard is the manner in which the fees are calculated. It is important to carefully check such agreements to see on what basis legal costs will be calculated. Some law firms charge considerably more than others for the same work. It is a very good idea to read such agreements before signing them. If you are in any doubt you should raise your concerns with the lawyer or obtain independent legal advice from another lawyer.

This is an expression used by transport accident or TAC lawyers to describe the circumstances of the transport accident that might give rise to a finding of negligence or fault on the part of another person. For example, if a person’s driving is negligent or careless, the person may be liable to pay damages (through the TAC) to a person who is seriously injured in the accident. When lawyers use the term liability in the context of TAC common law claims they are referring to how the accident occurred.

A mediation is very similar to a voluntary settlement conference except that the meeting between the lawyers for the accident victim and the representatives of the TAC is chaired by an independent mediator whose role is to encourage the parties to reach a settlement. If Court proceedings have been issued, the Court will order that there be a mediation before the case can go to trial. Obviously, if the case settles at the mediation, then there will be no trial.

When lawyers refer to the term negligence, they are referring to the circumstances of the accident and in particular whether or not the circumstances indicate that one or more people involved in the accident might have been careless in the manner in which they drove their motor vehicle. The term negligence is a term that relates to the civil law rather than to the criminal law. You don’t need to do much wrong to be negligent in the eyes of the civil law. For example, travelling slightly above a speed limit would be considered to be negligent in the eyes of the civil law. Most of us drive negligently at some point in time, however, unless we injure someone as a result of our negligent driving, nothing usually happens. However, if we drive negligently and seriously injure someone, then that person could recover common law damages from the TAC in a common law claim because of our negligence.

When a common law damages claim is resolved or settled by negotiation, or there has been a common law trial resulting in a verdict, the claimant’s common law right is extinguished. Under no circumstances can either the claimant or the TAC reopen the claim. The claimant only has one opportunity to recover common law damages. Once a common law claim is resolved, it is resolved forever, regardless of any change in the claimant’s circumstances that might occur in the future.

The medical coverage provided by the TAC is limited to treatment received in Australia. In other words, if a TAC claimant leaves Australia and undergoes treatment overseas, the TAC has no liability to pay those treatment costs. This can be a problem for overseas visitors injured in transport accidents in Victoria. When they return home, the TAC is no longer liable to meet their medical treatment costs. Overseas medical costs can, however, be recovered in a TAC common law damages claim, however, such a claim can only be brought where the claimant has suffered a serious injury as the result of someone else’s negligence.

Lawyers use this expression to describe damages that are paid to a seriously injured person for their pain, suffering and loss of enjoyment of life. Such damages are assessed having regard to the nature and severity of the injuries sustained, the effect the injuries have had on the injured person and the likely duration of future problems that will flow from their injuries. There is no scale or table that sets out the value of these damages. The assessment of the damages is made on the basis of experience.

These are the legal costs, calculated by reference to the Court scale or the common law protocol, that have to be paid by the TAC where the injured person succeeds in a claim for common law damages. In such claims the losing party (here the TAC) only has to pay a contribution towards the total legal costs of the injured person. The total legal costs are referred to as the solicitor/client costs – see below.

These damages are also referred to as economic loss damages. These are damages awarded to a seriously injured transport accident victim in a common law damages claim for loss of income and lost earning capacity. The quantum of those damages is assessed having regard to the income the person would have earned had they not been injured. There are many technical aspects to the assessment of pecuniary loss damages.

This is an expression used by TAC lawyers to describe a situation where the TAC seeks to discount a seriously injured person’s common law damages because the person was not wearing a seat belt at the time of the accident. The TAC has to establish that the person’s injuries would not have been as severe if a seat belt had been worn. The TAC bears the burden of proving this. A seat belt defence can give rise to a finding of contributory negligence on the part of the accident victim and as a consequence the person’s damages are reduced by the extent to which their own negligence contributed to their injuries. There is no set or fixed percentage reduction and every case is assessed on its own facts.

These are in effect the total legal costs payable by the injured person. If the claim is successful then the TAC would contribute the party/party costs, leaving a balance that has to be paid by the client. This balance is often referred to by lawyers as the “solicitor/client” component. The amount of legal costs varies from case to case as does the TAC contribution, except in TAC common law protocol settlements where the TAC has to contribute a fixed fee. The total costs of a proceeding can vary depending upon the amount of work that is required to be done. The total legal costs in a claim will be considerably greater if the case goes to trial than if the case is resolved by negotiated settlement at an early stage.