In addition to TAC benefits, you may also be able to make a common law claim for damages. This is essentially a monetary payment that a court may award to compensate for the loss, harm or injury suffered.
To bring a claim for damages, you would need to demonstrate:
- That you have suffered a serious injury;
- That another person’s negligence was a direct cause of the injury; and
- That you have suffered actual loss and damage as a result of the injury.
The time limit for a common law claim is 6 years from the date that the accident occurred. If you are under 18 years of age, you have 6 years from the date that you turn 18.
If you receive damages for loss of earnings, your TAC compensation claim will come to an end in addition to any Centrelink payments you may be receiving at the time.
The Transport Accident Act states that a serious injury can be:
- A permanent impairment of 30% or more
- Serious long-term impairment or loss of a body function
- Permanent serious disfigurement
- Severe long-term mental or behavioural disturbance or disorder
- The loss of a foetus
To qualify for a serious injury, you must satisfy one of the following tests:
Under this test, your degree of impairment must be 30% or more. Both physical and psychological impairment scores can be combined to reach this value. For example, if you suffer a physical impairment of 25% and psychological impairment of 10%, then the combined value will equal more than 30%. However, it is not uncommon for a person to be certified unfit for work and receive an impairment score of well below 30%.
This test evaluates the the person’s quality of life following the injury. The court will apply the criteria below to assess the effects of the injury and then make a determination as to whether it could be considered serious. It will also compare your injury to other seriously injured road accident victims to determine the severity. The consequences of the injury must be ‘more than significant or at the least very considerable’. However, mental or behavioural disturbances must be ‘more than serious to severe’. Under this test, physical and psychological impairments cannot be combined.
If you have suffered a serious injury as a result of the accident, the TAC should issue you a Serious Injury Certificate. If they refuse to grant you a certificate however, we can assist you in making an application to the County Court for permission to bring a claim for damages.
To establish that another person ‘failed to exercise reasonable care’, you must satisfy the following 3 elements:
1. That the other person owed you a duty of care
All drivers automatically owe a duty of care to other road users. That is, they have an obligation to prevent or minimise harm that would be considered reasonably foreseeable. ‘Road users’ could be drivers, cyclists, pedestrians or motorcyclists.
2. That they breached that duty of care
A person can be deemed to have breached their duty of care by failing to take all practical and reasonable steps to keep other road users safe from harm. When determining what is practical and reasonable, a court will consider what steps a ‘reasonable person’ would take in the same circumstances and whether those steps would eliminate or minimise the risk of injury.
The risk must have also been ‘reasonably foreseeable’ meaning that a reasonable person would anticipate the risk of injury. For example, a breach could be established where a driver failed to stop at an intersection, which resulted in a collision with another road user.
When assessing whether the party has breached their duty of care, a court will also take the following matters into consideration:
- How great the risk was;
- The likelihood of the accident occurring;
- The burden on the other party to avoid the risk
3. That your injury was the result of the breach
Finally, you would need to demonstrate that the other road user’s action, or failure to take action, was the direct cause of your injury. This would require proof that the injury would not have occurred had it not been for their conduct.
A court will also consider whether your actions contributed to the injury (known as ‘contributory negligence’). If you are partly responsible, the amount of damages available will be reduced.
For example, if a pedestrian was struck because a driver failed to stop at an intersection, the driver would be liable. However, if that pedestrian had wandered onto the road because they were intoxicated, contributory negligence could be established.
Loss and Damage
A person who has been seriously injured in a transport accident can make a claim for:
- Pecuniary loss (or economic loss); and
- Pain and suffering (loss of enjoyment of life)
Importantly, if you succeed in a claim for economic loss, you will automatically succeed in a claim for pain and suffering.
An amount awarded for economic loss will also be reduced by the amount of weekly entitlements previously received.
Economic loss is essentially a loss of earning capacity as a result of your injury. To receive damages for economic loss, the TAC would need to determine that your permanent loss of earning capacity was 40% or more. This is assessed by comparing your ‘after injury earnings’ with your ‘without injury earnings’.
‘After injury earnings’ is the greater amount of the gross annual income you have earned or have been capable of earning. ‘Without injury earnings’ is the gross annual income you would have earned or would have been capable of earning had the injury not occurred. The income earned within the period of 3 years before the injury to 3 years after the injury will most accurately determine your earning capacity. You would then need to demonstrate that, regardless all reasonable attempts made to participate in rehabilitation and undertake alternative employment, you have been unable to earn more than 60% of your earning capacity.
Pain and Suffering
After suffering a serious injury in a transport accident, the most challenging aspect is often the inability to carry out your everyday activities. Also known as ‘general damages’, compensation for loss of enjoyment of life may be available where your injury has affected your ordinary activities.
Typically, the following areas will be taken into consideration:
- Cognitive function;
- Self-care capacity;
- Ability to perform household duties;
- Recreational activities;
- Social activities;
- Sexual life; and
- Enjoyment of life.
As it can be difficult to place a monetary value on such matters, a court will often refer to the following when determining the amount of money required to compensate a person for pain and suffering:
- The person’s pre-injury lifestyle;
- Deprivation of enjoyment of life;
- Psychological distress;
- Reasonable needs;
- Community standards.
A serious injury certificate can be issued in one of four ways:
- Following an assessment, your injury is deemed to be serious if the degree of impairment is 30% or more;
- The TAC can choose to provide the person with a serious injury certificate even though the degree of impairment is less than 30%;
- Where the TAC fails to respond to the claim within the prescribed time limit, then the injury is deemed to be serious; or
- By leave of the court
Importantly, an application cannot be made for 18 months after the date that the injury occurred. This allows for the injury to stabilise, providing a more accurate assessment when determining the long-term effects.
Unless the TAC makes a request for further information, they must either issue a Serious Injury Certificate or reject the claim within 60 days of lodgement. If approved, both parties will be required to attend a conference which will aim to facilitate a resolution and minimise the need for court intervention.
How Long Will It Take?
Unfortunately, there is no exact time frame for a common law claim. Typically, the initial conference will take place between 6-12 months after lodging a Statement of Claim. This may be delayed if your medical condition changes. Many claims are resolved during the conference phase where a series of ‘offer and counter-offers’ are made. Where an agreement cannot be reached, the matter will proceed to trial, which can take between 6 months to 2 years to commence.