A TAC common law claim is a claim for damages that a seriously injured TAC claimant can bring. It can only be made in circumstances where a claimant’s injuries have been caused by the negligence of another person.
Negligence – proving liability
To be successful in a TAC common law claim, an injured accident victim must prove that another person, usually another motorist, acted negligently. If negligence or liability can be proven, the claimant can recover damages to compensate for injury, loss or damage sustained.
In order to qualify for a TAC common law claim, the claimant must first have undergone 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 rating of 30% or more. Alternatively, a claimant has a “serious injury” if he or she satisfies one of four narrative definitions of “serious injury”. These 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”). This means that in
the majority of common law damage claims, the negligent party (“the defendant”) will be indemnified by TAC. The TAC acts as the person’s insurer. This means that it is the TAC, rather than 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.
As the name suggests, pain and suffering damages are awarded for pain, suffering and loss of enjoyment of life. Essentially pain and suffering damages are compensation for the claimant’s injuries. The maximum amount that can be awarded for pain and suffering damages in a TAC common law claim is currently $577,280.00. There is also a minimum threshold that must be reached. The threshold is currently $57,690.00. If a plaintiff is awarded less than this amount, for example $ 30,000.00, then the plaintiff receives no pain and suffering damages. In our experience, acting for hundreds of accident victims in TAC common law claims, we are yet to have a case where this threshold has ever posed a problem.
Pecuniary loss damages are economic loss damages. Pecuniary loss damages are awarded for lost income both past and future. A plaintiff is entitled to claim lost income from the 18 month anniversary of the accident. Income loss by way of lost earnings is claimed to the time of resolution of the claim. Additionally, a plaintiff is entitled to claim an allowance for income losses into the future. This 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 $1,298,980.00.
There is also a minimum threshold to recover pecuniary loss damages. The plaintiff must receive more than $57,690.00. This threshold can pose a problem for some claimants. For example, older part-time workers who only earned limited income at the time of the accident can be impacted by the threshold. It is important to obtain advice from a specialist TAC lawyer about the operation of the threshold. In the context of pecuniary loss damages Centrelink implications and considerations can also be relevant.
Time frames and limitations periods
Contrary to popular belief, TAC common law claims do not need to take years to prepare and resolve. We have been able to resolve some common law damages claims within three months of an accident occurring. Every case is different. However, once a person’s injuries are stable, if they have a “serious injury”, there is no reason why resolution of the claim needs to take a long time.
TAC common law claims must be commenced within six (6) years of the date of the accident for adults. This six year period is not absolute. Under the Limitation of Actions Act, Judges have a discretion to extend the limitation period in certain circumstances. If an accident victim has not brought a common law claim within six years, it is very important for that person to obtain advice from a specialist TAC lawyer.