Victims of road trauma may be entitled to compensation and common law damages under the Victorian Transport Accident Scheme, administered by the Transport Accident Commission – TAC.
Anyone injured in a motor car accident, tram or train accident in Victoria has a potential entitlement to no-fault benefits and common law damages from the TAC. Anyone injured whilst travelling in a Victorian registered motor vehicle in another State or Territory also has a potential entitlement to receive no-fault benefits and common law damages.
To receive such benefits, the accident victim must lodge a claim for compensation with the TAC. A claim for compensation must be lodged with the TAC within 12 months of the accident occurring or within 12 months of the accident victim’s injury first manifesting itself. The TAC has a statutory discretion to accept a claim for compensation lodged outside the 12 month period, however, the claim must be lodged within 3 years of the accident or of the injury first manifesting itself. Further, the accident victim must satisfy the TAC that there was a good reason why the claim was not lodged within the initial 12 month period.
The TAC has a number of statutory functions, two of which are:
- To pay no-fault benefits to transport accident victims; and
- To pay common law damages to transport accident victims who suffer a serious injury and can prove that the injury was caused by the negligence of another person. This is because the TAC is the compulsory third party insurer of all Victorian motor vehicles.
When the TAC makes a decision to pay or to refuse to pay no-fault benefits, it makes an administrative decision which can be challenged by the accident victim. All administrative decisions should be conveyed to the claimant in writing together with information which explains how to seek a review of the administrative decision.
Challenges of administrative decisions are made to the Victorian Civil & Administrative Tribunal – VCAT. An accident victim has 12 months to lodge a challenge with VCAT from the date that the accident victim first becomes aware (is notified) of the decision.
A challenge cannot be brought outside the 12 month period. Legally represented accident victims who wish to challenge an administrative decision by TAC must go through an alternative process governed by the dispute resolution protocol. Lodging a dispute resolution application under the protocol does not stop the clock in relation to the 12 month limitation period. However, once a period of 9 months has elapsed from the time the accident victim became aware of the decision, a challenge can be lodged with VCAT in order to protect the accident victim against an adverse outcome under the dispute resolution protocol.
In order for an accident victim to bring a common law claim for damages, there must first be an impairment determination made by the TAC. Impairment determinations must be made within 6 years of the date of the accident. Under the Limitation of Actions Act 1958, a TAC accident victim has a period of 6 years to bring a common law damages claim.
Under Section 93 of the Transport Accident Act 1986, this 6 year limitation period commences to run on the date of the transport accident.
However, under Section 23A of the Limitation of Actions Act 1958, Judges have a discretion to extend the 6 year limitation period in certain circumstances. Limitation periods under the TAC scheme are taken very seriously by the TAC. It is essential that any transport accident victim who is uncertain about the operation of limitation periods should seek specialist advice.