The Transport Accident Act in broad terms regulates a person’s entitlement to compensation if injured in a transport accident which occurred in Victoria or in another state in certain prescribed circumstances.
In 2013 the then Victorian Government enacted the Transport Accident (Amendment) Act 2013 which was designed to substantially restrict the rights to common law damages for persons who had sustained severe psychiatric injury as a result of a transport accident caused by another person’s negligence.
Previous to the 2013 amendment, a person with a psychiatric whole person impairment of less than 30% could still sue if they could demonstrate a serious injury based on a severe long term mental or behavioural disturbance caused by the transport accident.
The 2013 amendment however qualified this definition by introducing requirements which in many cases made it impossible for a person with severe psychiatric injury to satisfy the serious injury threshold test so to be permitted to sue for compensation.
The present Victorian government has now enacted the Transport Accident (Amendment) Act 2016 which removes the restrictions introduced by the amendments made in 2013.
In my opinion the changes are welcome and remove the unfair restrictions to damages particularly for children and retirees who even with severe psychiatric injury, would have missed out on injury compensation under the 2013 legislation.
The TAC have introduced new protocols which will commence operation on the 1st of July 2016.
The protocols are designed to streamline the processing of compensation entitlements available to claimants under the Transport Accident Act and to avoid if possible, contested Court proceedings. The protocols apply to;
-Common law claims.
-Serious injury applications.
-Disputes in relation to no fault benefits.
In general the TAC protocols aim to provide a framework for the mutual and early exchange of relevant information between the TAC and the claimants lawyers. The objective of the protocols is to facilitate fair, efficient, cost effective and provide a transparent pathway to promote correct decision making by the TAC.
What is a real life example of the new TAC protocols?
The protocols include a number of changes to TAC practice which I am sure will be welcome. For example, the protocols now make it clear that a request for clinical notes from a treating doctor can only be made in prescribed circumstances where relevant to the claim. It is hoped that this will avoid past TAC practice of requesting medical records which invariably had no relevance to the claim; infringed the claimant’s privacy and caused disruption and inconvenience to the medical practice in complying with TAC’s request.
The new protocols also provide the option of bypassing the impairment assessment process so to accelerate the processing of a serious injury/common law claim. Under the new protocols TAC will also provide early exchange of information/documentation relevant to liability issues to assist the claimant’s lawyer to assess the merit of a common law claim.
It can be very stressful for a claimant to attend multiple medical examinations for the purpose of assessing compensation entitlements. Sometimes there can also be a perception, even without foundation, that an examining doctor appointed by TAC may not be objective.
Now the claimant’s lawyer can appoint the examining doctor who will examine the claimant jointly on behalf of the claimant’s legal representative and the TAC, thereby minimising the number of medical examinations a claimant is required to attend and reducing potential dispute.
Do the new TAC protocols help with legal fees?
Importantly for claimants the new protocols also provide a more generous contribution by the TAC towards the claimant’s legal costs if the matter is successfully resolved through the protocol process. This will mean that in many cases a claimant will incur minimal legal costs for work undertaken by their lawyer.
For further information contact Nick O’Bryan on 03 9200 2533 or by email at firstname.lastname@example.org.
This information is of a general nature only and will not reflect any changes to the law if made after the date of this article. It should not be relied upon as a substitute for discussing your situation with a qualified legal practitioner.