We're all well aware of road safety campaigns telling us to "stop, look, listen, think" when crossing the road. Over time, in addition to education, signalling methods and markings on the road have been developed to help keep pedestrians safer on our roads. But sometimes, the worst can still happen. If you or a loved one have been injured as a pedestrian crossing the road or in a public area, you may be entitled to benefits and compensation through a TAC claim.
Pedestrian's Eligibility to claim TAC benefits
Every accident has a unique set of circumstances and factors that must be considered before determining whether you are eligible for TAC benefits. In general, the main questions to determine eligibility are:
- Were you injured in a road accident?
- Did the accident happen in Victoria or was the accident involving a Victorian registered vehicle?
- Has the accident been reported to the police? This can include reporting to the police where they were not in attendance at the actual accident scene.
If you answered "yes" to all the above questions, you may have a TAC claim.
Pedestrian injuries don't always have to involve direct impact with a vehicle
Most commonly pedestrians are injured after being hit by a moving car. But pedestrians can be injured in a road accident in other ways that would entitle them to TAC benefits; for example, being injured after trying to avoid being hit by an out-of-control car or being injured from broken glass left on the ground following a car accident.
As long as there is a connection between the accident and driving of a motor vehicle or arising out of the use of the motor vehicle there are other scenarios that can apply. You should speak with a lawyer about the circumstances of your accident if you are unsure whether it entitles you to TAC benefits.
Time limits for lodging your TAC claim
You have to make a claim within 1 year of the accident. The TAC may accept a claim up to 3 years from the date of the accident if it considers there are reasonable grounds for any delay.
You can learn more about time limits that apply to lodging your TAC claim in our article "How long do I have to make a TAC claim for compensation".
TAC benefits available for pedestrians injured in a road accident
If you have an accepted claim, you will be entitled to access benefits from the TAC.
Under the TAC scheme, an injured pedestrian can generally claim:
- loss of earnings;
- medical expenses;
- impairment benefit claim;
- common law damages.
Loss of earnings
If you are an earner and cannot work due to your injuries, you can claim loss of earnings from the TAC for up to 3 years from the date of the accident.
The loss of earnings payable are either:
- 80% of your pre-injury average weekly earnings if you cannot return to work fully; or
- 85% of the difference between your pre-injury average weekly earnings and your current earnings if you are able to return to work but not fully (partial loss); or
- 100% of your pre-injury average weekly earnings if your pre-injury earnings were less than $740 per week; or
- $740 per week plus an allowance for each dependent.
The loss of earnings claimable cannot exceed $1,490 per week.
Learn more about loss of earnings in our article, "Can TAC cover loss of income?"
Payment of medical and "like" expenses is available for assistance and treatment of your injury including medication, physiotherapy, surgery and any other recommended medical treatment.
"Like" expenses refers to other services you may require to help you during recovery from your injury. These include services like home assistance, gardening, childcare and other services depending on your specific needs.
As long as the expense you are claiming is reasonable treatment and related to your accident, the TAC is required to reimburse or fund that treatment on your behalf.
However, if the TAC makes any decision to cease funding your treatment, you may challenge the TAC's decision through a dispute resolution application within 1 year of TAC's decision.
Learn more about TAC and medical expenses in our article, "Will TAC pay for my medical expenses?"
Impairment benefit claim
An impairment benefit claim is lump sum compensation for the permanent injuries sustained in the accident. At least 3 months needs to have passed and your injuries must be stable before you can lodge this claim.
For more information on impairment benefit claims, have a look at our article "What is a TAC impairment benefit".
To be successful in an impairment benefit claim, you must be assessed as suffering a whole person impairment of 11% or more.
Common law damages
A common law damages claim is a lump sum claim for all injuries you sustained in the accident, provided you can show that your injuries are "serious" and that the accident was not your fault.
What is a serious injury?
Whether you have a serious injury depends on how bad your injury is; how it affects your enjoyment of life and your ability to earn an income.
Our article, "$520,000 compensation after motor vehicle accident; TAC benefits and common law claim", outlines some of the considerations given to our client in relation to their common law claim.
Was this accident your fault?
As a pedestrian, you are in a vulnerable position when crossing the road compared to a car or a truck, for example. All road users owe a duty of care to one another.
If you are walking and are hit by a car, the driver of the car will be responsible for the accident. However, if you were not obeying the road rules and signals, you may be considered partly responsible, meaning there was contributory negligence. If this occurs, the amount of compensation you receive may be reduced.
What are damages?
Damages is another word for compensation. Damages are a monetary reward for the pain and suffering you have gone through and your loss of ability to earn money as a result of your injuries.
Common examples of injured pedestrians
I was on my way to a work lunch when I was hit by a car. Can I claim TAC benefits?
In this scenario, you should lodge a workers compensation claim to access benefits including weekly payments, medical expenses and impairment benefit claim pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Once your workers compensation claim is accepted, you can consider claiming common law damages from the TAC.
Am I entitled to TAC benefits if I was injured whilst jaywalking?
Yes. You will still be entitled to TAC benefits if you were injured while jaywalking, however you should be aware that there may be a reduction in your common law damages to the extent that you were wholly or partly responsible for the accident.
This does not just apply to jaywalking. It also applies to other ways of taking shortcuts to crossing the road. Jaywalking is illegal in Victoria and those who jaywalk may face on-the-spot fines.
What if I am not from Victoria? Am I still entitled to TAC benefits?
If you are not a resident of Victoria, you may still claim TAC benefits provided the accident occurred in Victoria or if the accident occurred outside Victoria, that the vehicle involved was a Victorian registered vehicle.
Road users owe a duty of care to each other. It is important that each plays their role in ensuring the safety of the other.
Unfortunately, until there are no more humans to make human errors, road accidents are inevitable. So, if you or a loved one are injured in a road accident (either as a pedestrian, driver, passenger, cyclist or motorcycle pillion), get in touch with us and we can help you navigate the process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.