The person left with the most injuries after a road vehicle accident is not always the driver; it is often other young passengers who receive injuries and who happen to be our most beloved family members – our children. There are high quantities of road accidents that end up injuring the driver only because the driver was the only one in the vehicle. This occurs for many reasons, the main reason being that parents don’t commute with their children to work. However, when children do ride in motor vehicles with parents, loved ones, and friends, they may be injured in an accident. The question is what exactly should you understand about how the TAC handles claims involving children?
The TAC isn’t resourceful on this subject for parents
Before we get started it’s crucial to realise that the TAC doesn’t offer high volumes of information on this topic (children’s injury claims). The knowledge is very minimal because it’s the TAC; they don’t want knowledgeable parents filing claims. The more knowledge a parent has about a TAC claim,, the more money it will cost the TAC for the road injuries. One of the only resources of information they offer to the public is a brochure that discusses childrens’ road injuries in Victoria.
Decide what you want from the TAC and work with a TAC lawyer to get it
The idea behind the TAC is to fix all of the physical and emotional damages an individual went through because of the accident. This can apply to children, but children don’t know their options. The parents have to know for their children or TAC benefits will go unclaimed, which sadly happens too frequently in Victoria.
Unsure what benefits to target?
This might be one of your very first accidents, and you’re wondering what do you need to make your child healthy, happy and fully repaired from the road injuries. You’ll want to discuss, in depth, with your healthcare professional any therapy or programs your child should go through to fully heal. You’ll want to think of all the options whether it’s surgery, a wheelchair, or involvement in a therapeutical program.
Parents should visit with their TAC lawyer after discussing the injuries with their healthcare professional. Your TAC lawyer will be able to provide details on what’s possible to achieve and how to achieve it with the TAC. If the desired compensation is written in a policy, it’s possible to attain. However, the TAC policy does not necessarily reflect what it is further required to fund based on the legislation and its interpretation or on what could be supported if sought by request or by legal action to VCAT (an administrative appeal) if the TAC does not wish to fund it. In other words TAC policies should not be seen as law.
In addition, even if funding cannot be achieved under a fair interpretation of the TAC legislation, that does not mean a parent should not seek such a benefit. Again, just because it is not fundable under the TAC legislation, section 60 or related sections, does not mean the benefit should not be sought. This open thinking should be followed whenever a child is seriously injured.
That point is stressed as one of the major caveats to the legislation.
It runs this way:
- You are injured in a transport accident covered by the TAC legislation
- The legislation provides a wide range of No Fault type benefits (including those that support an injured child)
- The legislation says that you can seek common law damages for those seriously injured
- You can seek as common law damages pain and suffering, and income type damages
- It also says you cannot seek any expense that is covered by section 60 of the Act, and that section deals with medical and like expenses.
- So by contrary interpretation, the legislation is saying that if the TAC says or a court finds that an expense is not covered by section 60, it can fall into common law damages, so long as it is reasonable to incur that expense
Let’s give you an example:
The brochure that is on your link advises parents to take it easy and look after themselves as being a parent of an injured child can be “both challenging and rewarding”. There is no indication that you may be entitled as a parent to respite care. There is a TAC policy for respite care and it goes as follows as the outset:
The TAC can fund the reasonable cost of respite services for a TAC client who as a result of transport accident injuries, receives substantial unpaid care and support from a carer, where the client resides within the same household as a family member or carer.
The TAC can fund time-limited respite breaks up to a maximum of 28 days per calendar year, except in exceptional circumstances where additional respite services may be considered. Where the term respite care is not defined at all!
The legislation does not define the term “respite”. The Oxford English Dictionary says it means temporary institutional care of a sick, elderly, or disabled person, providing relief for their usual carer. The lack of transparency in my opinion is intentional – how would an average reader of the website understand that term? With that in mind, where does the TAC get all the additional restrictions such as having to reside in the same household? What if you reside next door or nearby, and for only 28 days? On its own, where it can be tested at VCAT, and if lost as a no fault benefit does not mean a doctor may still find it a good idea for the carer and so, it can be a common law damages element.
Are you following this?
Finally, what if the person not only wants to put the injured child into respite care for a few days, but really needs a good holiday to recharge and is without funds to do so? Can you ask the TAC for such funding under a TAC no fault benefit?
Well yes, you can, and most likely it will be refused and VCAT and the courts will say section 60 and its related sections do not provide for this benefit.
But again, is it a reasonable expense and one at common law a court may award? Yes, if modest and truly warranted, but most lawyers do not seek such compensation! So much is going wrong with child claims that are being settled out of court, where no one is considering what compensation at common law should be sought for the child and family outside the no fault benefits, for the life of the child.
If you need help with your child’s TAC claim, please enquire.