In TAC Talk: Road Crashes
TAC compensation denied to injured pedestrian – case review

In the case of Benitez v Transport Accident Commission, the County Court was asked to determine whether an injured pedestrian, Ms Zulma Benitez, had suffered a “serious injury” and whether she was therefore entitled to TAC common law compensation under the Transport Accident Act.

The focus of the case was the consequences of Ms Benitez’s left leg injuries on her life, after being involved in a motor vehicle accident as a pedestrian.

Ms. Benitez was a 73 year old woman, hit by a car while she was crossing the road in 2016. She suffered a number of physical and psychological consequences as a result of the accident, including left leg pain and chest pain.

In addition to her statutory TAC entitlements (like medical expenses and lump sum impairment), Ms. Benitez also lodged a TAC common law claim.

Entitlement to TAC common law damages

In order to be entitled to compensation for her pain and suffering and loss of enjoyment of life (TAC common law damages), she was required to first prove that she had suffered a “serious injury” as a result of the crash.

In this case, Ms Benitez sought to prove that she had suffered a serious impairment or loss of bodily function to her left leg, and that the consequences of those injuries were significant.

Unrelated and pre-existing injuries and impairments needed to be disregarded from the assessment of the consequences of her road accident-related injuries.

Determining TAC serious injury status

Ms Benitez relied primarily on the opinion of Dr. Peter Blombery who provided an expert opinion asserting that the accident had caused a physical injury which had then manifested in a pain syndrome.

Her Honour Judge Magee made a number of key findings:

  • Benitez suffered injuries to her left leg and developed a deep vein thrombosis (DVT) which was caused by the motor vehicle accident, but she did not have a pain syndrome relating to her left leg.
  • Benitez’ restrictions and ongoing pain were predominantly as a result of a combination of pre-existing conditions, chest injuries, and other unrelated problems, making it tough to isolate the impact of her left leg injury.

The Court’s determination

The Court could not determine the extent to which her left leg injury alone caused her various consequences, ultimately concluding that Ms. Benitez had not met the criteria for a “serious injury” pursuant to the Transport Accident Act.

Ms. Benitez was, therefore, excluded from making a TAC common law claim.

Get help from a personal injury lawyer

The case underscores the complexity of TAC common law cases, especially when multiple factors contribute to an injured plaintiff’s pain and suffering. It highlights the need for a thorough examination of medical evidence and the challenges in determining the relationship between an accident and the injuries and impairments that arise afterwards.

Although this case involved a motor vehicle accident, other personal injury claims involving, for example, workplace injuries, public liability or medical negligence, will need to satisfy certain criteria. Personal injury claims are often complicated so, engaging an experienced personal injury lawyer can significantly improve the potential of a successful claim.


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TAC common law claims with a pre-existing injury or illness