TAC common law damages after a motor vehicle accident in Victoria

If you suffer an injury due to a motor vehicle accident in Victoria, you may be entitled to compensation for lost wages, medical expenses and lump sum compensation. Lump sum compensation can be in the form of an impairment benefit and in some circumstances, can be for what is known as common law damages.

Common law damages refer to a lump-sum payment of money that is designed to compensate you for your loss following an injury that has been caused by the negligence of another person or entity.

If your injury occurred because of a motor vehicle accident, these damages are limited to two types:

• Pain and suffering damages: designed to compensate you for your permanent pain, suffering and loss of enjoyment and quality of life.
• Economic loss damages: designed to compensate you for your past and future loss of earnings and superannuation (excluding the first 18 months).

Common law damages are separate to other benefits available in your TAC no-fault claim, including:

• weekly wages;
• medical expenses;
• lump sum for permanent impairment, etc.

To be successful with a claim for TAC common law damages, you ned to prove 2 things:

1. That you have sustained a “serious injury”; and
2. That another person or entity (the defendant) was negligent.

You must prove BOTH of the above to be entitled to receive TAC common law damages.

“Serious injury” is a legal term with a special definition in TAC claims due to transport accidents. You need to prove that you have sustained a serious injury before you are allowed to make a negligence claim against the defendant. There are different ways to establish that you have sustained a serious injury.

Generally, a serious injury is an injury that has permanent, significant effects on your day-to-day life. If you completely recover from an injury and go back to your life as normal, with no ongoing need for treatment or medication and no permanent disruption to your daily activities, hobbies or sleep, it is unlikely that you will meet the serious injury threshold.

A serious injury can be a:

• physical injury;
• psychological injury;
• scarring or disfigurement; or
• the loss of a foetus.

If you do not prove you have suffered a serious injury or your serious injury application is denied, you are not entitled TAC common law damages.

If you can prove you have suffered a serious injury, you are given a “serious injury certificate” that allows you to make a claim for common law damages. It does not mean you are entitled to these damages. You still need to prove the second component mentioned above; that another person or entity was negligent.

To prove negligence in a TAC common law claim, you need to show the following:

1. The defendant owed you a duty of care. This means that the defendant was expected to take reasonable steps to look out for your safety. Generally, this is undisputed in TAC matters as all road users have a duty of care to other road users.
2. The defendant breached this duty of care to you. This means that the defendant either did something that caused your injury or failed to do something that could have reasonably prevented your injury.
3. This means that the defendant’s breach of duty to you is the cause of your injury. Consider this example:
   • You are driving your vehicle whilst texting on your mobile phone.
   • As you are distracted, you do not realise that the traffic ahead of you has stopped at a red light.
   • You hit the rear of the vehicle in front of you and sustain an injury as a result of the accident.
   • When you get out of the car, you realise the driver of the car in front of you is drunk. However, the influence of alcohol in the driver’s system has no bearing on the accident. The sole reason for the crash was due to your own distraction as a result of using your mobile phone while driving.

This will not amount to negligence as even though driving under the influence of alcohol would likely be a breach of the defendant’s duty of care to you, it is not the cause of your accident.

Usually, in TAC common law claims, the defendant is another driver who is indemnified by the TAC. However, this is not always the case.

Consider this scenario:

• You are driving down a windy road and lose control of your vehicle due to an unexpected sharp bend with no signage to warn you of the bend.
• You sustain injuries as a result of the accident.
• The road authority or council may be found negligent for failing to erect appropriate signs, paving the way for a TAC common law claim.

Unlike impairment claims (under the TAC no-fault scheme), there is no formula to calculate the amount of damages that should be awarded. It very much depends on the specific circumstances of your accident and injuries.

There are statutory maximums that apply to TAC common law claims. Damages cannot exceed these amounts.

Whilst it is not determinative, looking at other verdicts can assist to understand what types of damages awards are being made.

At Polaris, we are experts in TAC compensation claims. We’ve successfully represented many clients in relation to their road accident claims.

For advice or assistance with any aspect of your TAC claim, please get in touch directly with Polaris Lawyers. It doesn’t cost you anything to find out if you have a claim.