What are the TAC Protocols and how do they help injured road users?

The TAC protocols (“the protocols”) are an agreement between the Transport Accident Commission (TAC), Australian Lawyers Alliance (“ALA”) and the Law Institute of Victoria (“LIV”). The agreement governs the conduct of the TAC and personal injury lawyers in motor vehicle accident cases prior to litigation (court action). If matters do not resolve within the protocols and the parties proceed to litigation, their conduct is no longer governed by the protocols and the normal court rules apply.

Law firms and practitioners can opt in or out of the protocols. Polaris participates in the protocols because we believe the interest of our clients are best served by working collaboratively and achieving early resolution where possible.

The Transport Accident Commission (TAC) is a social insurer (a government-based insurer). The Victorian government has intervened to ensure there is insurance coverage for people injured in Victorian road accidents or transport accidents involving Victorian registered vehicles.

This insurance scheme is managed by the TAC. The TAC has a 2020 strategy which includes the stated goal of “getting our clients’ lives back on track sooner.”

The TAC protocols were first developed in 2005.

The aims of the protocols were:

“to provide an efficient, expeditious and transparent process to deliver appropriate benefits and compensation to people who sustain injury as a consequence of a transport accident”.

There was a significant rewriting of the protocols in 2016.

As of 1 January 2020, the Supplementary Common Law protocols (“supplementary protocols”) were introduced as a pilot for 12 months. These protocols are designed to be read in conjunction with the 2016 protocols and were again developed in conjunction with the ALA and the LIV.

The supplementary protocols have the following additional objectives of restorative justice and timely delivery of benefits and compensation to claimants.

The supplementary protocols are designed to:

• ensure TAC comply with the model litigant guidelines;
• allow the mutual and early exchange of information;
• ensure efficient and expeditious resolution of claims;
• provide consistency in the management of claims;
• ensure timely benefit delivery and early resolution of matters;
• avoid litigation and promote meaningful dialogue;
• allow for proactive granting of serious injury certificates;
• create a formal fast track process for the granting of serious injury certificates;
• allow for interim common law payments;
• allow for partial common law settlements.

Common law claims are separate to TAC payments for medical expenses and, loss of earnings etc. Common law damages are available to claimants who suffer a “serious injury” where someone else was at fault.

1. Clear timelines

No-one wants to be stuck in the compensation system waiting for an outcome longer then they need to.

The protocols ensure that matters are progressed in a timely manner and the Transport Accident Commission cannot delay a person’s claim by requesting more and more material before assessing a claim.

2. Avoidance of litigation

The protocols allow for meaningful discussion prior to court proceedings being issued.

This means that more matters can resolve earlier in the process and without the need to go to court. While some cases need to go to court to resolve, where court can be avoided it is cheaper, quicker and less stressful for those claiming compensation.

3. Fast track applications

The supplementary protocols create a formal pathway to allow plaintiff lawyers (your lawyer) to attempt to access a client’s common law damages rapidly.

This pathway has been created only for clear serious injuries. The examples given in the supplementary protocols are amputations, joint replacements, significant spinal injuries, moderate or severe acquired brain injuries or gross scarring.

The fast track process cannot be used where an impairment claim has been lodged, where who caused the accident is in dispute, or for claimants represented by firms who do not participate in the protocols.

4. Part payment of common law damages

The supplementary protocols allow for an interim common law payment to be requested by the claimant’s lawyers.

This is a part payment of the claimant’s pain and suffering damages. The decision to make an interim common law payment remains entirely at the TAC’s discretion. When making the determination, the TAC will have regard to the case and the Model Litigant Guidelines.

The protocols also allow for the parties to reach agreement to settle the claimant’s pain and suffering damages without resolving their pecuniary loss claim.

This means injured people can access compensation sooner while they focus on coming to terms with their injury and their recovery.