To be able to claim TAC compensation for pain and suffering and economic loss after a motor vehicle accident in Victoria, you need to first establish that you have suffered a “serious injury”. In this blog, we explore your options if you lodge a TAC serious injury application and it is rejected by the TAC.
While the TAC acts as the decision-maker or “gatekeeper” in deciding whether you have suffered a serious injury after a crash, their decision is not the end of the story.
In fact, our recent analysis of court decisions shows that when the TAC challenges serious injury applications to a court determination, it loses about 70% of the time.
So, can you still make a claim for compensation when the TAC says that you don't have a serious injury?
WHY DO YOU NEED A SERIOUS INJURY CERTIFICATE?
Prior to 2003, a person injured in Victoria could make a claim for compensation as long as they could prove that the negligence of someone else was a cause of the injuries.
If the injuries were minor or temporary, this would be reflected in a smaller award of damages.
In 2003, Victoria (as well as states across Australia) underwent a change in the laws related to personal injury claims, introducing “thresholds” to eliminate small or minor claims for compensation.
The result in motor vehicle accident claims and workers compensation claims was the introduction of the “serious injury” threshold.
Since that time, to bring a claim for compensation for pain and suffering and economic loss for injuries arising from a motor vehicle accident or work accident, it has been necessary to prove:
- That a person has suffered a “serious injury”; and
- The fault or negligence of another party.
The Transport Accident Act 1986 gives the TAC the power to act as a “gatekeeper” – making the initial decision about whether to grant or deny an application for a serious injury certificate.
Except in very limited circumstances, without a “serious injury certificate” awarded by the TAC or by the County Court, you cannot commence a claim for damages (aka compensation).
WHAT IS A SERIOUS INJURY?
This is a well established legal test which depends heavily on a person's own circumstances and the medical evidence in any individual case. What may be a “serious injury” to one person may not be a serious injury to another.
Serious injuries include:
- Permanent impairment of 30% or more;
- Long term impairment or loss of body function which impacts working life, social, domestic or recreational activities;
- Long term severe psychological injuries which impact daily life, work, social, domestic or recreational or educational activities;
- permanent serious disfigurement (such as scarring); or
- Loss of a foetus.
In relation to physical injuries, a serious injury exists where the consequences flowing from the injury can fairly be described as at least very considerable and more than significant or marked.
The impact of the injuries on the individual person are highly relevant to whether injuries will be considered “serious”.
For instance, a person who suffers a wrist injury and can no longer engage in their preferred sport or hobby could be considered to have a serious injury, even if the injury itself might not be serious to another person. A concert pianist who loses the tip of their pinkie finger will be considered to have suffered a serious injury because the consequences for them in an impairment to their hands, is so significant. The same injury on a person whose work and activities are unaffected by the injury, for example an English teacher, would not be considered “serious”.
CAN I APPEAL A TAC DENIAL OF A SERIOUS INJURY APPLICATION?
The TAC receives hundreds of serious injury applications from injured people and their lawyers each year. And while in our experience, it often makes sensible decisions to grant serious injury certificates, it also frequently gets it wrong.
Thankfully, the TAC's determination of a serious injury application is not the end of the matter.
If, after consideration of all the evidence (and following a process used by lawyers and the TAC called the “serious injury protocols”), the TAC still does not accept that a person has suffered a serious injury, the injured person can begin court proceedings to request that the court determine that there is a serious injury.
You can read more about court cases involving serious injury applications, in our previous blogs:
- Psychological serious injury applications – a TAC case law review
- Court grants cyclist a “Serious Injury Certificate” paving the way to a common law claim
TAC'S TRACK RECORD IN COURT WITH SERIOUS INJURY APPLICATIONS
You would expect that the TAC gets these decisions right most of the time, given that the law is well established, it receives hundreds of applications each year, and has a team of in-house lawyers specialising in the area.
And yet, a review of court decisions handed down over the past 12 months shows that the TAC was not successful half of the time when rejected serious injury applications were appealed.
In fact, they weren't even close.
Out of 32 cases determined by the County Court, the TAC was successful in just 9 of them.
That's a win/loss record of just under 29%.
Based on the record of the TAC in serious injury applications in court in the last 12 months, we estimate that the TAC has wasted over $3million in legal costs fighting cases that it should have accepted in the first instance.
If this was a football team, the coach would be fired. If it was a casino, it would be shut down. If they were a political leader they would be ousted.
None of this is reflected in the 2022 Annual Report of the TAC.
On one view, the TAC's record is good news for people injured in a motor vehicle accident whose applications have been rejected by the TAC. On the other hand, it would be much better news if the TAC reviewed its practices and accepted a greater number of serious injury applications without forcing genuine applicants to get permission from a court to bring their claim.
It is terrible news for anyone paying to register their motor vehicle in Victoria because a large portion of that fee goes to funding the TAC.
WHAT DOES THIS TELL US?
Although the TAC is the authorised decision maker in relation to serious injury applications, they aren't the last word, and they frequently get it wrong.
Decisions made by the TAC to deny a serious injury application should be carefully analysed. If your serious injury application is denied, you should seek legal advice from a lawyer experienced in TAC claims for the injured party.
The TAC is sometimes anecdotally seen as an “emotionally driven insurer” – making decisions based on fixed and frequently misguided views and impressions of its legal team. The TAC asserts that its values include “putting injured people at the centre of everything they do”. They will be closer to living these values when they adjust the frequency with which they unnecessarily put injured people through long and difficult court battles.
Injured people and their lawyers who are required to have their case heard in court should approach the hearing with cautious confidence, being careful to ensure that the case is well prepared, and the medical evidence is in good order. This will ensure that the court can make the correct decision.
The cases listed below are demonstrative of the statistics outlined above.
|CASE NAME||CERTIFICATE GRANTED?||INJURIES||CASE LINK|
|Athuai||Yes||Neck and back||View here|
|Kufi||Yes||Shoulder, back and neck||View here|
|Noser||Yes||Neck and back||View here|
|Roach||No||Neck and back||View here|
|Cauchi||No||Spine and left arm||View here|
|Patterson||Yes||Neck and psych||View here|
|Blashka||Yes||Back and neck||View here|
|Griffiths||Yes||Scar, brain, psych||View here|
|Polidano||No||Back and psych||View here|
|Allwood||Yes||Right shoulder||View here|
|Trenery||No||Chronic pain||View here|
|Portelli||Yes||Right shoulder, jaw||View here|
|Skinner||Yes||Neck, right shoulder||View here|
|Hettirachi||No||Left shoulder, neck||View here|
|Farid||No||Right shoulder, spine||View here|
|Soleimani||Yes||Neck and back||View here|
|Makri||Yes||Neck and back pain||View here|
|Stevancevic||Yes||Spine, hips||View here|
|Hawley||Yes||Left hip and thigh||View here|
|COST LOSSES FOR TAC||SAVINGS WINS FOR TAC||NET RESULT|