The TAC compensation scheme that operates in Victoria is primarily a no-fault compensation scheme.
However, transport accident victims whose injuries were caused by the negligence or carelessness of another person can, subject to a number of significant legal requirements, bring a common law damages claim against the negligent party (the defendant). To bring a common law claim they must also show that they have sustained a “serious injury”.
In a common law claim the injured person can bring a claim for damages against the defendant whose negligence caused the injuries. Before the TAC scheme came into operation in Victoria on 1 January 1987, anyone injured in a car accident caused by the fault of another person could bring such a damages claim. However, the right to bring such a claim was largely abolished with the introduction of the Transport Accident Act 1986 (“the TAA”).
Under the TAA the government set up an entirely new system for common law claims. It introduced the “serious injury” threshold to identify those claimants who could bring common law claims. When considering the question of “serious injury” the first requirement is that the claimant must have had an impairment assessment and decision made by the TAC. The assessment of impairment is carried out once a claimant’s injuries become medically stable, i.e. reach a point where further recovery is unlikely. It is an assessment of “permanent” impairment.
Once an impairment decision has been made by the TAC, some claimants are automatically regarded as having sustained a serious injury for common law purposes. Those are people whose impairment is determined by TAC at a figure of 30% or more. The vast majority of claimants end up with an impairment score below 30%. For those people, there is an alternative test for “serious injury” which can be considered.
In Section 93(17) of the TAA, there is a definition of “serious injury”. The definition is as follows:
“(a) serious long term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long term mental or severe long term behavioural disturbance or
(d) loss of a foetus”.
You will see from the above, that there are in fact four definitions. The last definition is very limited and obvious in its meaning. The other three definitions are more difficult.
These definitions were put into the TAA by the members of the Victorian Parliament in 1986. Arguably the politicians had little, if any, idea at the time what the terminology meant or how it was going to evolve when the TAA was passed.
The highest Court in Victoria (The Court of Appeal) has had numerous cases come before it on the question of “serious injury” in the context of these definitions. The Court has considered each of these definitions in determining various cases and in doing so has provided guidance as to what the definitions mean through its judgments.
The physical injury definition (paragraph (a)) is the most common definition that applies in transport accident cases.
The physical injury definition requires there to be a physical injury that leads to an impairment of a particular body function. Then consideration needs to be given to the consequences that flow from that impaired body function for the particular accident victim.
Only if those consequences are considered serious can the injury be said to be serious. In other words, the injury itself doesn’t have to be obviously serious in the common usage of that term. The consequences of that injury, however, do have to be serious for the particular accident victim.
You can have two individuals who suffer the same injury in a transport accident and yet only one of those victims will have a serious injury. For example, two accident victims suffer an amputation of the tip of their index fingers. One accident victim is a lawyer and the other is a concert pianist. In such an example it is clear that there would be a range of consequences for the concert pianist that would not be experienced by the lawyer. One such consequence could be the resultant disruption in employment, thus impacting on income and financial stability. Another could be the associated emotional response to loss of career, financial instability and so on. The same injury for the lawyer is unlikely to cause an interference with employment or earnings nor to have the same impact in light of other considerations. The concert pianist will experience serious consequences, whereas the lawyer won’t. The concert pianist will have a serious injury and would be able to bring a common law damages claim. The lawyer won’t.
The beauty of the serious injury test is that it treats each accident victim as an individual.
This is in marked contrast to the no fault impairment system that treats everybody exactly the same.
There are many people who suffer injuries that produce serious consequences for them.
Unless TAC claimants obtain advice from a specialist TAC lawyer, they might be misled into thinking that they have no rights at all.
The type of consequences that are usually regarded as serious are:
(a) Pecuniary (financial) consequences; and/or
(b) Lifestyle consequences.
There seems to be a trend that has developed over the last 10 to 15 years where Judges of the County Court appear to place much greater weight on pecuniary (financial) consequences that might arise from disruption to employment than on lifestyle consequences. Consequently, those accident victims who can demonstrate that their injury has impacted upon their ability to work tend to be more successful in proving “serious injury” than those accident victims who only suffer pain and lifestyle consequences.