TAC claims – contributory negligence explained

TAC motor vehicle accident insurance provides benefits to people injured on Victorian roads and includes wage support, medical expenses and a lump sum payment for permanent impairment even if no-one else was at fault in the accident (sometimes called the “no fault benefits”). The Transport Accident Act allows the TAC to reduce some “no fault” benefits for drivers who are drug or alcohol affected at the time of a road accident, in limited circumstances.

In addition to those ‘no fault” benefits, you can also receive compensation for your pain and suffering and economic loss (which is called the “fault based or common law” side of the TAC scheme), if you can establish:

1. Serious injury – That you have sustained a serious injury as a result of that accident; and
2. Negligence – Another party caused or contributed to the accident.

Because a common law claim for compensation relies on you establishing that someone else was at fault, the circumstances of the accident become very important and the conduct and responsibility of each party is relevant to the amount of compensation you will be paid.

As a result, if the accident was caused by someone else but your injuries were contributed to by your own conduct (for example you were not wearing your seatbelt), your compensation can be reduced according to your contribution. An argument of contributory negligence can be made even if you weren’t driving a vehicle.

This principal is called “contributory negligence”.

Here are some common examples of contributory negligence for people injured in road accidents.

As a pedestrian, you:

• failed to keep a proper look out when crossing the road;
• failed to use the designated pedestrian crossing or intersection lights;
• jumped, stood or stepped in front of a moving vehicle.

While driving, you:

• failed to obey traffic signals and signs, e.g. you ran a red light, failed to give way or failed to stop;
• drove whilst under the influence of alcohol, drugs or sedative medications;
• drove recklessly or carelessly, e.g. speeding;
• failed to wear a seat belt.

As a passenger in a vehicle, you:

• were the passenger in a vehicle which was driven by someone who you knew was unlicensed, alcohol or drug affected or likely to drive unsafely;
• were not wearing a seatbelt at the time of the collision.

Let’s take a look at the impact of contributory negligence on a TAC claim for compensation by looking at a common example:

John is injured in a motor vehicle accident when he is the driver of a car hit by a truck which fails to give way.

At the time of the collision, John is not wearing his seatbelt. He suffers serious long-term injuries.

John’s entitlements to “no fault” TAC benefits including medical benefits, wage support and a permanent impairment lump sum are not affected by the circumstances of the accident.

He establishes that he has a serious injury and the police report and witnesses support the fact that he did not cause the accident.

However, John’s failure to wear a seat belt has contributed to the extent of his injuries.

The TAC agrees with an assessment of John’s pain and suffering and economic loss of $500,000, however, because he contributed to his injuries by not wearing a seatbelt, they seek to reduce the compensation payable to him by 20%.

John is now only offered $400,000 in compensation.

Because the circumstances of an accident can make a significant difference to the compensation available to an injured person and because every case is unique, it’s important to get legal advice and representation from lawyers who specialise in TAC claims.

If you’d like to find out more, or talk about the circumstances of your case, contact Polaris for a free consultation with one of our award-winning lawyers.