Farm Accidents and TAC Claims

New safety standards applying to quad bikes on Australian farms, introduced in 2019, are aimed at reducing the death and injury toll. In the meantime, injuries and deaths caused by motor vehicle accidents on farms and other private property remain high, and confusion about insurance coverage, including TAC claims for victims remains rampant.

Soon after we started Polaris, we got an unusual call. Someone had been injured by a vehicle at a friend’s property and had been rushed to hospital. The medical staff told our caller that there was no TAC claim because “it happened on private property”.

We were grateful for the call. The medical staff had it wrong, and we had a chance to set the client straight and make sure that their benefits and compensation would be paid by the TAC.

If the client had accepted what the medical staff had said about the TAC scheme, over a million dollars in benefits and compensation would have been lost because of bad advice.

Injuries on private property remain relatively common and farms remain high risk environments for motor vehicle injuries and deaths. This includes accidents involving cars, motorbikes, trucks, quad bikes and farm equipment like tractors and harvesters.

Across Australia in 2019, 58 people died in vehicle accidents on farms. 25 of those people were injured or killed in Victoria. In the first half of 2020, over 100 people had been injured or killed in farm accidents.

Quad bike accidents continue to top the list as the most common causes of injury and death on farms, with 14 deaths in just 6 months in 2020.

In the last 10 years, 150 people were killed as a result of quad bike accidents on farms. 23 of those people injured were children.

It is hoped that safety standards introduced by the ACCC in 2019, will dramatically reduce the toll over time. It is further hoped that these standards will properly require manufacturers to recognise and minimise the inherent safety issues and design flaws surrounding vehicles such as quad bikes, rather than continue to blame driver error.

Phase 2 of the new standards will mean that from 11 October 2021, all new and imported quad bikes must be fitted with a rider protection device (such as a roll bar) and meet minimum standards regarding stability, to prevent rolling.

Despite the high number of injuries and deaths in motor vehicle accidents on private property such as farms, there remains a lot of confusion about insurance coverage and TAC eligibility for victims of crashes.

So, what is the law in relation to farm accidents and the TAC?

The TAC scheme is supported by beneficial legislation. This means that unless the TAC can point to a reason to exclude a person injured or killed in a motor vehicle accident, their claim should be accepted.

The Transport Accident Act specifically excludes people injured or killed in certain circumstances.

In relation to crashes on private property, there are two exclusion provisions that need examination:

1. People Injured or killed in an accident involving an unregistered motor vehicle on private land. (section 41A)
2. Owners of an uninsured vehicle (out of registration for more than 12 months) on private land. (section 41B)

Exclusion 1: Unregistered Vehicles on Private land (section 41A)

While this exclusion sounds like it would prevent anyone injured on, say a farm bike riding off road, from eligibility to the TAC, the exclusion is actually much narrower than it first appears.

An “unregistered vehicle” means a vehicle which has never been registered in Victoria or another state or territory. So, a person injured or killed on private property while using a vehicle with lapsed registration, is covered by the TAC scheme (as long as they don’t own the vehicle).

You can learn more about this in our article, “TAC claims involving unregistered or uninsured motor vehicles”.

Exclusion 2: Owner of an uninsured vehicle on private land. (Section 41B)

The rules for the owner of a vehicle on private property are a little stricter.

Section 41B of the Transport Accident Act states that a person is not entitled to TAC benefits or compensation where they:

1. are the owner of the vehicle for which the registration has not been paid for at least 12 months; and
2. are injured or killed on private land.

So, a person injured or killed on private property is covered by the TAC if the crash involves a registered vehicle that they own (or one where registration lapsed less than 12 months before the crash).

Both exclusions from the TAC scheme depend heavily on how “private land” is defined.

Helpfully for anyone affected by a crash, the definition of “private land” is very narrow, meaning that the TAC will be required to provide benefits and compensation involving injuries and deaths that occur on the following pieces of land:

1. Private land that is mainly used for riding or driving motor vehicles; or
2. Land where the public may enter and remain without permission; or
3. An area that divides a road; or
4. A footpath or nature strip adjacent to a road; or
5. An area that is open to the public and is designated for use by cyclists or animals; or
6. An area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles.

The key questions in determining whether a person is excluded after a crash on private property involving an unregistered vehicle include:

1. Is the property an area that, while not a road, is open to the public for driving, riding or parking motor vehicles?
2. Is the property an area that, while not a road, is used by the public for driving, riding or parking motor vehicles?
3. Is the property land that members of the public may not enter without permission?
4. Is the property land that members of the public may not remain on without permission?

This issue was highlighted in the case of Nunn v Transport Accident Commission (Review and Regulation) [2016] VCAT 2025. A motor bike rider was severely injured while riding on a farm and the injured rider was excluded from the TAC scheme because the site of the injury was determined to be “private land”.

It is important to remember that even where a person injured on a farm is excluded from the TAC scheme, they may be entitled to Workcover benefits and compensation if they can establish that their injuries (or a death) occurred “in the course of employment”.

Additionally, a person who is injured or killed on private property may have insurance entitlements in superannuation, death or accident insurance, and may be entitled to compensation via the home and contents insurance attached to the property where the crash occurred.

The potential exclusions to the TAC are clearly complex, and depend heavily on the circumstances of a crash and the person affected. The lesson here is that you should never take advice on your entitlements from anyone other than a personal injury expert.