TAC common law compensation awarded to injured motorcyclist

In the TAC common law case of Phromphian v the Transport Accident Commission, the County Court of Victoria was asked to determine whether an injured motorcyclist, Mr Nattaphon Phromphian, had suffered a “serious injury” in a motor vehicle accident and whether he was therefore entitled to compensation under the Transport Accident Act.

The focus of the case was the consequences of Mr Phromphian’s neck injuries on his life after a road crash in 2019.

On 13 June 2019, Mr Phromphian was riding his motorbike in Armadale, Victoria, when his bike was struck by a car which failed to give way and turned in front of him at an intersection.

In addition to his TAC statutory entitlements (like weekly payments and medical expenses), the 50 year old automotive service technician pursued common law damages for injuries that he sustained in the accident, including an injury to his neck.

For Mr Phromphian to be entitled to compensation for his personal injuries as a result of the motor vehicle accident, it was necessary for him to first prove that he had sustained a “serious injury” pursuant to the Transport Accident Act.

Having been unable to convince the TAC that his neck injury was “serious” within the meaning of the law, he sought a determination from the County Court.

In making its decision, the Court took into account his pre-accident and post-accident activities and restrictions.

Prior to the road accident Mr Phromphian had worked for large car makers in Thailand, before working as a service technician in Australia for BMW. He added to his income by working as an Uber driver casually, and sending that income home to his family in Thailand.

Immediately after the accident, Mr Phromphian was taken by ambulance to the Alfred Hospital where he remained for 3 days. He was diagnosed as having suffered an injury to his spinal cord, and was told to wear a neck collar for 6 weeks. Following that time, he received some occasional medical treatment to his neck.

He was unable to work for several weeks, before returning on light duties.

Despite his injuries, Mr Phromphian’s work at BMW continued, albeit he faced difficulties with the physical aspects of the work, leading to impacts on his productivity and affecting the progression of his career.

He had difficulty returning to rideshare work, citing his neck pain and stiffness as the reason for him stopping that work. It was put to Mr Phromphian that in fact the reason for him stopping work as an Uber driver was more related to COVID and Victoria’s lockdowns in 2020 and 2021.

In support of his TAC common law claim, Mr Phromphian relied on the opinions of a range of medical experts, including pain physicians, neurosurgeons, and a psychiatrist.

While the medical experts gave a range of opinions about Mr. Phromphian’s condition, expert neurosurgeons emphasised his persistent neck pain, headaches, and discomfort in performing certain activities, including his work.

The Court granted leave for Mr. Phromphian to bring a claim for common law damages for injuries that he suffered as a result of the transport accident.

Ultimately, the Court considered the extent of financial loss and pain and suffering consequences of the injuries for Mr Phromphian. His inability to continue to work as an Uber driver was a crucial determining factor.

Limitations in Mr Phromphian’s capacity to enjoy activities that he previously enjoyed, such as swimming, tennis and snorkelling, were also considered, however, the Court viewed that he would have had little time to pursue these activities because of his long hours of work before the accident.

In making its decision, the Court was persuaded by the “very considerable” consequences of the impairment that Mr. Phromphian faced, which included his incapacity for ongoing work as an Uber driver.

As a result of the decision, he now has permission to bring a TAC common law claim for compensation for his pain and suffering and his economic loss arising from the accident.

At Polaris, we are experts in TAC claims, both for statutory benefits under the scheme and for common law damages due to negligence of another driver. 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.