A TAC common law claim can be brought by a seriously injured TAC claimant. The seriously injured claimant seeks common law damages. The claimant must show that their injuries were caused by the negligence of another person.
Negligence – proving liability
For a successful TAC common law claim, a claimant must prove that another was negligent. Usually, the negligent party will be another motorist. If liability is proven, the claimant can recover damages (compensation) for injury, loss and damage.
To qualify for a TAC common law claim, the claimant must first have an “impairment assessment”. Second, they must have a “serious injury”.
There are two ways to reach the “serious injury” threshold. A claimant is deemed to have a “serious injury” if he or she has an impairment of 30% or more. Alternatively, a claimant has a “serious injury” if he or she satisfies one of four narrative definitions of “serious injury”. The definitions are found in Section 93(17) of the Transport Accident Act 1986.
All Victorian registered (and unregistered) motor vehicles are covered by compulsory third party insurance. This insurance is held through the Transport Accident Commission (“the TAC”). In most common law damages claims, the negligent party (“the defendant”) will be indemnified by TAC. The TAC acts as the person’s insurer. Accordingly, it is the TAC, not the defendant, who pays the damages to the accident victim (“the plaintiff”).
In a common law claim, the plaintiff can recover two types of damages:
- Pain and suffering damages; and
- Pecuniary loss damages.
Pain and Suffering
As the name suggests, these damages are awarded for pain, suffering and loss of enjoyment of life. Such damages are compensation for the claimant’s injuries. The maximum amount that can be awarded for pain and suffering in a common law claim is currently $639,200.00. There is also a minimum threshold. The threshold is currently $63,880.00. If a plaintiff is awarded less than this, for example $30,000.00, then the plaintiff receives no pain and suffering damages. Having acted for thousands of TAC claimants this threshold has never posed a problem for our clients.
Pecuniary loss damages are economic loss damages. These damages are for income lost both past and future. A plaintiff is entitled to claim lost income from the 18-month anniversary of the accident. Past lost income is claimed to the time of finalisation of the claim. Additionally, a plaintiff is entitled to claim for income losses into the future. These losses can be claimed through to normal retirement age. This represents lost earning capacity.
The maximum sum that can currently be awarded for pecuniary loss in a TAC common law claim is $1,438,310.00. There is also a minimum threshold for pecuniary loss damages. Again, the plaintiff must receive more than $63,880.00. This threshold can pose a problem for some claimants. For example, older part-time workers who only earned limited income. It is important to obtain advice from a specialist TAC lawyer about the threshold.
In the context of pecuniary loss damages Centrelink considerations can also be relevant.
Time frames and limitations periods
TAC common law claims do not need to take years to resolve. We have resolved some common law claims within a few months of an accident. Every case is different. Once a person’s injuries are stable the claim can be progressed. A specialist TAC lawyer knows exactly when the time is right to progress. If a claimant has a “serious injury”, there may be no reason for the claim to be delayed.
A common law claim must commence within six (6) years of the accident for adults. However, this six-year period is not absolute. Judges have a discretion to extend the limitation period. Significantly, this is only in certain circumstances. If a common law claim is not commenced within six years, it is important to obtain specialist advice.