Many of us drive either for our career, such as a truck driver, courier or delivery person; or driving is an important feature of our work as is the case for salespersons. It has been reported that truck driving is one of Australia’s most dangerous jobs. (https://www.mq.edu.au/newsroom/2017/02/03/report-reveals-overworked-truck-drivers-fear-raising-safety-concerns/)
If you have been injured while driving a motor vehicle during the course of work in Victoria, you have entered a complicated crossover between compensation legislation, that of WorkCover, and TAC or Public Liability legislation.
The process starts, most of the time, with the right to lodge a WorkCover type claim for basic benefits. It then continues with common law rights to compensation, if you have been seriously injured from either the TAC or from an entity most likely protected by public liability insurance.
It is the leaving of the WorkCover benefits scheme and entering the possibility of seeking common law compensation either from the TAC, if another motor vehicle was at fault for your accident (including trams, buses and trains) or seeking it from another party and their insurer if the cause of the accident is not some “driving” but some other aspect of the accident, such as the conditions of the road, that can cause confusion and difficulties for most injured persons, and many times for the lawyers acting on their behalf. The interplay of these areas of the law is not easy to understand.
A typical example of such an accident is: someone being seriously injured in a car accident while driving a work vehicle, during work hours, in Melbourne because of the fault of another driver. In this case, TAC will be the insurer of that other car.
And then the example gets more complicated when the accident is caused, at least in part, by something being wrong with the condition of the roadway, its design or maintenance and then you are looking at a public liability claim.
What is involved with the Victorian WorkCover Claim?
The WorkCover claim goes in through your employer once the accident happens and you are injured. Your employer’s WorkCover insurer will process your claim and decide if you are entitled to the benefits available, such as medical and related expenses as well as income benefits.
The decision to accept the claim will follow confirmation the accident happened, the injuries claimed were suffered and that you are in need of the benefits. A medical examination at that time is likely to occur.
Once the claim is accepted the benefits will remain as allowed under the WorkCover legislation. The normal process of seeking common law compensation from WorkSafe is not required, because the accident involves the driving of a motor vehicle.
You are required to seek such access from the TAC.
What is involved in a TAC Common Law claim?
Although the accident happened at work, TAC is in the background if the accident involves the driving of a motor vehicle in respect to getting both access to compensation and the payment of compensation.
You start off with WorkCover benefits but soon your Specialist Personal Injury Lawyer will need to advise you on whether you are entitled to common law compensation because you have been seriously injured due to the fault of another driver.
TAC will have no idea of what has happened to you in the accident. The process starts with advising TAC that you have been seriously injured and providing the evidence needed to satisfy the definition of someone who has suffered a “serious injury”.
This process is considerably different to what is done with a WorkCover claim. More importantly, the concepts used to decide if a person is seriously injured are applied totally different, and many times a person is able to access common law by way of a TAC serious injury where the same injuries would not achieve a serious injury in the WorkCover world. It is essential to have a Specialist Personal Injury Lawyer who has the experience to bridge these two areas of the law easily.
What does ‘serious injury’ mean?
The TAC legislation has its own definitions as to what constitutes a “serious injury” and there have been numerous court decisions used to guide us on how the definitions should be applied. In most matters it is relatively easy to say whether a person has suffered a “serious injury” but there are many matters that are borderline, and it is often the skill of a good Specialist Personal Injury Lawyer that allows access to common law compensation.
In our experience, the focus is on the consequences of the injury on a person’s quality of life. The test is in part subjective, where attention is given to the individual and how the injury affects that person’s quality of life.
Why is Common Law Compensation so Valuable?
The law in Victoria for common law compensation arising from a TAC related accident is generous compared to other states in Australia.
A person can access compensation of about $550,000 for pain and suffering and over $1.2 million for loss of earnings, past and future. Details of exact sums available can be found at: http://www.tac.vic.gov.au/clients/what-we-can-pay-for/policies/supporting/indexation-of-benefits-schedule.
Such compensation is only available if you have been granted a serious injury certificate and if you can prove someone is at fault for your accident.
What is involved in a Public Liability Claim?
That area of law involved in a public liability claim is very complicated, dealing many times with the responsibilities of those involved in road design or road maintenance. A thorough understanding of the legal obligations of such entities is difficult to grasp just by reading the relevant legislation.
It is so complicated at times, that many firms stay away from these types of matters because they bring into play complicated concepts of the law.
The Personal Injury Specialist handling any claim that deals with a work accident while driving a car in Victoria and say it was caused, at least in part, by the maintenance of the road really has to have a comprehensive understanding of all these areas of the law.
That lawyer would also greatly benefit from an understanding our various government body operations, such as a Local Councils or the State of Victoria, to locate the evidence that is needed to show where responsibility for the accident lies, either with one of them or with one of the contractors hired to undertake works for them.
Sometimes a simple argument that the Council delegated all works to a contractor is one that has to be taken seriously and at other times is of little consequence in relation to the obligations the Council should or should not have undertaken.
An understanding of all of these factors is crucial at the outset so that essential investigations are undertaken immediately before evidence is lost by reason of the accident site changing over time or by reason of other works occurring within the area.
Speed and an understanding of what needs to be preserved as evidence is key.
Why do you need a Specialist Personal Injury Lawyer at this time?
As the injured person you will need right from the start someone to explain to you what you are entitled to under the WorkCover legislation and to also be able to map out how to proceed with any possible TAC or Public Liability common law compensation claim.
All areas of the law need to be considered at the same time.
Do I need a Specialist Personal Injury Lawyer trained in all areas of the Law?
We would say yes.
We believe that a Specialist lawyer with extensive knowledge of all the areas of law involved is essential from the start. Too many WorkCover lawyers will see the claim through what is needed to achieve common law compensation in a WorkCover claim and not in a TAC claim.
Worst of all, too many WorkCover or TAC lawyers will have no understanding of what is needed for a claim involving the condition of the road.
How long does such a claim take to obtain Compensation with TAC?
The WorkCover claim can go in right away and if you are seriously injured, it should be well managed by the WorkCover insurer.
The TAC claim has no time required to start, and can start as soon as one can say you are seriously injured through asking TAC for a serious injury certificate. TAC can easily agree without much fuss.
If TAC disagrees, and you accept our advices that a serious injury certificate should be granted, court proceedings are issued to ask that a judge at the County Court make the necessary determination. That court process can take some months to complete.
Once you have a serious injury certificate, you then turn to looking at what compensation should be awarded and from whom.
If the matter deals with the negligence of a driver, then TAC is the insurer of all Victorian motor vehicles and is quite willing to have early informal conferences to see if an agreement can be reached as to the compensation the injured person deserves.
If such informal processes are not successful, then court proceedings can be issued to seek an award from a court, and most likely a jury.
We are unsure if our experience is unique, but in the matters we have litigated recently as to compensation, we have achieved outcomes before a trial or have been given an award by a jury that were better than the early offers made by TAC. While we do not say litigation is necessary every time, it is an option that has to be considered each and every time an opportunity to settle a TAC claim is presented.
You will be looking for a Personal Injury Specialist who is willing to pursue your claim in court to achieve the compensation you deserve and with the experience to give you advice as to when a matter should be settled.
How long does it take to receive compensation in a Public Liability Claim?
At the outset, you still have to go through the process of obtaining a serious injury certificate as outlined above. Once obtained you can proceed with the public liability claim.
With a public liability claim more time may be needed to fully investigate the claim and put together all the evidence you need to support that claim. Once that is achieved, you will still need to educate the proposed defendant and its insurer as to what is involved, as up to that point the insurers will have no knowledge of the claim, the injuries suffered and its consequences to the quality of someone’s life.
What Compensation amount can I anticipate?
The amount of compensation is a combination of:
- The extent of your injuries and their consequences;
- The ability to say clearly the other driver or entity is responsible for the accident;
- The ability to say the injured person is not, in part, responsible for the accident;
- The overall legal skill of your Specialist Personal Injury Lawyer to achieve the best possible compensation amount.
Should I accept the first offer made?
This is one that really requires you to have trust in your Specialist Personal Injury Lawyer. Many times, the first offer is not the best outcome and further negotiations on the day or maybe even later is required. Other times a first offer may be a really good reflection of the value of the claim.
It is a matter for your Specialist Personal Injury Lawyer to advise, and you are looking for someone with extensive experience.
What does it cost to hire a Specialist Personal Injury Lawyer?
This is an important question and the answer for our firm – Nothing, until we win for you. We operate on a No Win No Fee basis, therefore, no fees or disbursements are owed to our firm in the unlikely event we are not successful in obtaining compensation for you.
If you do win, we find that most of your legal costs will be paid for by the losing party.
What we emphasize is that our fees are not a percentage of your compensation amount, and we only get paid for our work.
More importantly, we believe the focus should not be on fees but on what the work produces for the injured person. Many times you can settle a matter quickly for low fees but the real benefit comes to the client in working that little bit more, and in that little bit more, the fees do not change but the compensation given can go up massively.
We have noted numerous examples on our website in the Success Stories page: https://www.hcalawyers.com.au/success-stories/.
Why should I hire Henry Carus + Associates to handle my WorkCover – Motor Vehicle Accident Claim?
Our firm has an unrivalled understanding of the areas of law involved. Our Henry Carus has worked as a lawyer for the TAC at a large Melbourne insurance firm, has reached the role of Partner in a Melbourne law firm specializing in public liability claims and has acted for numerous insurance companies and local government bodies.
In addition, we have access to his years of experience as a New York City trial lawyer trained to understand what evidence is need to win a matter in court, and therefore able to start from the outset to gather the necessary evidence.
This combined with his commitment to achieve the compensation each seriously injured person deserves has produced outcomes for our clients that are quite special.
Contact a Melbourne Personal Injury Lawyer
If you have been seriously injured at work in Victoria while driving a motor vehicle, you would benefit from having early specialist legal advice on your rights to benefits and entitlements to common law compensation.