Topic 6- Entitlement under Transport Accident Act PDF

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Topic 6: Entitlement to Receive Compensation under the Transport Accident Act 1986 (Vic) 1

Introduction

This topic will examine the requirements that a person must satisfy before being entitled to receive compensation under the Transport Accident Act 1986 (Vic) (the ‘TA Act’).

1.1

Entitling Provision

The key provision regarding entitlement is section 35(1), which provides: Section 35(1) A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if— (a) the accident occurred in Victoria; or (b) the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was— (i) a resident of Victoria; or (ii) the driver of, or a passenger in, the registered motor vehicle.

1.2

Elements: s 35(1) TA

In order to succeed under this provision, a person seeking compensation needs to establish the following: 1. 2. 3. 4. 5.

The transport accident occurred ‘on or after 1 January 1987’. Time Limitations: injured person made a claim within the time limits: s 68 The transport accident was connected to Victoria. The person suffered an ‘injury’. The injury arose from a ‘transport accident’.

NB: A dependant of a person who dies as a result of a transport accident is entitled to compensation if the person who dies was or would have been entitled to compensation: s 35(2).

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Element 1: Transport Accident Occurred on or after 1 January 1987 1. Section 35 (Part 3) came into operation on 1 January 1987: see Endnote 1 of TA Act. 2. TA Act applies only to persons injured as a result of a transport accident after 1 Jan 1987: s 34. 2.1. Pre-1 Jan 1987 injuries/transport accidents dealt with by Motor Accidents Act 1973 (Vic 2.2. MA Act now repealed, but Pt 10 of TA Act reproduces relevant MA Act provisions 2.3. As a result, pre-1 Jan 1987 injuries/transport accidents dealt with under Pt 10 of TA Act

Element 2: Limitations Period- The Injured Person made a Claim within the Time Limits (s68 TA) 1. What time limits apply for making a claim under TA Act? 1.1.

Section 68 of the TA Act

Section 68 sets out the time limits for making claims under the TA Act, dealing with ADR in the TA Act. 1. Section 68(1) within 1 year of:  accident or death; or  injury manifesting itself—if injury did not manifest at time of accident o This applies when injuries don’t become immediate, but from a later date from the incident 2. Section 68(2) TAC may accept within 3 years of the above, if it ‘considers there are reasonable grounds for a delay’ 3. Section 68(3) within 3 years or by 21 yo (whichever is later), if under 18 yo at time of injury/accident  It is 3 years from the date of the injury if they are under 18  Or wait until they are 21 years old 4. TAC v Locastro (VSC, 1995: no discretion to accept after the 3 years expires)

Section 68: Time for making claim under Part 3 (1) A person— (a) who is injured; or (b) who is a dependant or a surviving partner of a person who dies— as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year— (c) after the accident or death; or (d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself. (2) If the Commission considers there are reasonable grounds for a delay in making a claim in accordance with subsection (1), the Commission may accept a claim for compensation under Part 3 at such later time before the expiration of three years after the transport accident or death or after the injury first manifested itself, as the Commission approves.

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Element 3: Transport Accident must be ‘Connected’ to Victoria: s35(1) 1. Requirements: How to establish a ‘connection’ to Victoria? A person injured in a transport accident is entitled to seek compensation under the TA Act if there is a connection to Victoria, namely if the: 1. Accident occurred in Victoria: s 35(1)(a); or 2. Accident occurred outside Victoria AND (i) involved a ‘registered motor vehicle’ AND (ii) at the time of the accident, the injured/deceased person was a) a resident of Victoria or b) the driver/passenger of the registered motor vehicle: s 35(1)(b)

2. Accident occurred Outside Victoria 1. Section 35(1)(b) deals with Victorian residents or drivers or passengers (whether residents of Victoria or not) of ‘registered motor vehicles’ injured in accidents outside Victoria. 2. Section 36 deals with the situation of non-Victorian residents injured in an accident outside Victoria who are not entitled to compensation because they are neither Victorian residents nor a driver or passenger of a ‘registered motor vehicle’. 2.1. The TAC has a discretion to award compensation in such cases if the injured person was ‘likely to reside in Victoria for not less than six months immediately after’ the date of injury

3. What is a ‘registered motor vehicle’ ? 3.1.

Definition in s 3(1) TA Act

The term ‘registered motor vehicle’ is defined in s 3(1) of the TA Act. 1. A motor vehicle registered under Road Safety Act 1986 (Vic) (RS Act): s 3(1)(a) OR  Registration is administered by VicRoads (your registration includes the TAC premium)  It is illegal to use a motor vehicle on a road which is not registered or exempt: s 7 RS Act 2. A motor vehicle that is: s 3(1)(b) OR  Not registered as above (under the Act)  ‘and is not registered under the law of another State or Territory’  but ‘is usually kept in Victoria’  and is not ‘exempt from registration’ in accordance with Part 2 of RS Act and RS (Vehicle) Regulations 2009 (Vic) (RS Regs)- e.g. club permits Section 3(1) (ba)-(e) 3. A motor vehicle that is not registered b/c it is exempt from registration under Pt 2 of RS Act and RS Regs: sub-s (ba) OR  s 7(1) RS Act requires registration under Pt 2 or exemption under RS Regs  r 12 RS Regs: lists MVs and trailers ‘exempt from registration’, incl. MV being owed, trailers used for exclusively agricultural purposes, etc 4. A motor vehicle that is not registered but has a ‘registration permit’ under the RS Regs: sub-s (c) OR  Eg ‘club permit’ under r 153; antique cars

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5. Not registered under RS Act, but registered under Interstate Road Transport Act 1985 (Cth): sub-s (e)

3.2.

It is not confined to a vehicle registered in Victoria: s 3(1)(a) TA Act

1. The words ‘and is not registered under the law of another State or Territory’ only added in 2000 2. Before this, case of TAC v Odey (VSCA, 1998) 2.1. ‘Exempt from registration’ means ‘but for the exemption, it would be liable for registration’, ie exigible: per Charles JA at 281-2. 2.2. This was the natural and primary meaning of ‘exempt’, although it could also mean ‘not subject to registration’. 3. But the ‘lynchpin’ of s 3(1) ‘is usually kept in Victoria’ b/c this constitutes a sufficient connection with Victoria’: per Charles JA at 281-2. 4. So, new wording, in light of TAC v Odey, means that ‘exempt’ now means specifically exempt under Part 2 of the RS Act

3.3.

Section 36 Discretion to exclude persons from entitlement

1. The TAC has a discretion to pay compensation for an injured person that does not meet the requirements of s 35(1)(b)(i) or (ii) 2. ie, injured person not resident of Vic or driver/passenger in RMV 3. If the Commission is satisfied that that person was, on that date, likely to reside in Victoria for not less than six months immediately after that date.

3.4.

Section 42: Entitlement to Compensation Outside Victoria

1. Section 42 applies where a person has a right to claim compensation or a right of action in respect of the accident under the TA Act and ‘under the law of a place outside Victoria’: s 42(1)  If paid or claim made under that other law, not entitled to compensation under TA Act: s 42(2)  TAC may recover amount of any compensation paid from the compensation or damages paid under that other law: s 42(3) 2. Meaning of ‘under the law of a place outside Victoria’?  Non-Vic jurisdiction? Eg, Cth jurisdisction is outside Vic  Ex-Vic geographically? Eg, other States or Territories 3. The latter: McClurg v TAC (VCAT, 2010): passenger injured in Ballan, Vic, but brought proceedings under TP Act against car manufacturer that was settled.

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Element 4: Person Suffered an ‘Injury’ 1. Definition of Injury 1. Although the entitlement to compensation under the TA Act arises when a person is ‘injured’, that word is not defined in the TA Act. 2. ‘Injured’ = ‘injury’: Gannon v TAC (AAT, 1995) 3. Section 3 defines ‘injury’ as:  ‘physical or mental injury and  includes nervous shock suffered by a person who was o directly involved in the transport accident or o who witnessed the  transport accident or  the immediate aftermath of the transport accident.’ 4. Case law defines ‘injury’ as  a ‘physiological change’: Barwon Spinners  ‘sudden physiological change’: Grech v Orica

2. Nervous Shock Extends to injuries suffered by people who were not involved in the car accident but suffer mental shock as a result of the car accident: Gannon v TAC (AAT, 1995); Solity v TAC (AAT, 1997) 2.1.

What is nervous shock? (TA vs Tort Definition)

1. The notion of nervous shock in s 3(1) of the TA Act does not necessarily correspond with the law of nervous shock as it is understood in tort law. 2. The common law and statutory limitations that apply in tortious actions for damages do not apply to statutory compensation under the TA Act: Gannon v TAC 3. The definition of ‘injury’ in s 3 was amended in 2000 to change this, however the amendment was ineffective: Solity v TAC. 4. A 2013 amendment limited the right to recover damages for nervous shock (s 93(2A)), but now repealed.

2.2.

Nervous Shock- does not need to be personally witnessed

The High Court in Tame v NSW and Annetts reversed the long- standing and much-criticised rule that prevented recovery for mental harm. Therefore it does not preclude claims that are the result of– 1. merely hearing or 2. being told about the consequences of the tortfeasor’s tort as opposed to personally witnessing the traumatic events or their aftermath, ie the requirement that there be a ‘shocking event’ or ‘directness of connection’ as additional pre-conditions to liability.

2.3.

Cases: Scope of Nervous Shock

Extends to injuries suffered by people who were not involved in the car accident but suffer mental shock as a result of the car accident: Gannon v TAC (AAT, 1995); Solity v TAC (AAT, 1997)

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2.3.1. Gannon v TAC (saw accident through TV) 1. The decision in this case occurred before change in wording in 2000 to definition in s 3 ‘injury’ 2. In 2000, the amendment added the words ‘and includes nervous shock suffered . . . .’ 3. As a consequence of this case, in 2000 the definition of ‘injury’ in s 3(1) of the TA Act was amended by including the words– 3.1. ‘Suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident’ that appear in the current definition.

Gannon v TAC Facts 1. 2. 3. 4.

Applicant saw TV report of a road fatality in an area where half-brother had been, and so believed his half-brother was the victim of the TA This was later confirmed by mother’s partner over telephone Applicant suffered depressive disorder as a consequence The applicant claimed compensation in respect of the psychiatric injury which he alleged was brought about by this news.

Issue: Psychiatric disorder ‘caused directly by’ TA? 5. 6.

The question was whether this injury was the result of a transport accident, ie an incident directly caused by or directly arising out of the driving of a motor vehicle pursuant to ss 3, 35(1). ‘Injury’ was defined by s 3 to include ‘nervous shock’ (as explained above), which was understood by the common law of negligence as referring to a psychiatric illness attributable to the sudden or immediate perception of an event or its aftermath.

Held: Causal connection satisfied; no need to establish direct perception of events 7. 8.

The incident, namely Simon's death, was directly caused by the driving of a motor vehicle; he was struck and killed by the car and there could be no clearer instance of a transport accident than that. On the medical evidence the applicant suffered a recognised psychiatric disorder, a depressive episode, clearly as a result of the transport accident, and the circumstances were such as could well have produced a similar disorder in a person of normal mental fortitude.

Fact that he suffered psychiatric injury through TV was irrelevant 9.

The fact that the applicant's shock arose through third party notification, rather than through his own perception of the accident scene or its immediate aftermath, was no objection to his claim. 10. All that had to be shown was a causal connection between the transport accident and the nervous shock

2.3.2. Solity v TAC (mother did not see immediate aftermath of accident) Solity v TAC Facts 1. 2.

Mother claimed that she suffered distress and psychological disorder as a consequence of son death after he walked into the path of an oncoming train The mother had not gone to the morgue to view his severely mutilated body.

Issue 3.

The mother did not directly perceive incident or ‘immediate aftermath’

Held 4. 5.

Mother entitled under TA Act, relying on Gannon v TAC Immediate aftermath’ of the accident is not limited to viewing the deceased body at the accident scene, in the hospital or morgue immediately after the transport accident,

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2.4.

Nervous Shock at Common Law

1. Direct perception did not need to be established 2. However a distinction needs to be draw between common law tortious principles and contrast it with Gannon and Solity, which applies under the TAC 3. Decision of Tame v Annetts (HCA, 2002)  Sudden shock and direct perception factors to be taken into account in determining DOC, but not determinative of liability  Normal fortitude test a factor but not a pre-condition 4. Wrongs Act 1958 (Vic) Part XI (Mental Harm): s 73 re pure mental harm  Amended in 2002  Sudden shock and direct perception factors to be taken into account in determining DOC, but not determinative of liability  Normal fortitude test a pre-condition 5. It is important to note that under the common law damages provisions of the TA Act (see Topic 8), an amendment to the Act in 2013 requires that in circumstances involving an injury of ‘nervous shock or other mental injury’, the claimant must show that she was directly involved in the accident or witnessed it and that the injury was not a secondary injury from another person who was directly involved: s 93(2A) TA Act.

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Element 5: Injury must arise from a ‘Transport Accident’ 1. What is a Transport Accident? 1.1.

Section 3(1) defines a ‘transport accident’ as:

a. an incident b. directly caused by the driving c. of a motor car or motor vehicle, a railway train or a tram

1.2.

Section 35(1) requires that the injury arise ‘as a result of’ a transport accident.

In Gannon v TAC Macnamara DP at 34-35 held that this:  

1.3.

imports a causal connection between the accident and the injury but seems to create no further criterion for the compensation entitlement ... The issues of remoteness and foreseeability which raise difficult questions in common law actions for damages and negligence have no part to play.

Elements that must be satisfied

1. That there was an ‘incident’ 2. That the incident was ‘directly caused by the driving’ of a vehicle 3. That this vehicle was of an appropriate kind

Element 1: There must be an ‘Incident’ 1. Definition of ‘incident’ Section 3(1A) defines an incident, for the purposes of the definition of TA, to include the following:

1.1

(a) a motor vehicle, a railway train, or tram out of control; (b) a collision between a pedal cycle and an open/ing door of a motor vehicle; (c) a collision between a pedal cycle and a motor vehicle while cyclist travelling to or from place of employment  Applied in Wilson v TAC [2017] (Bell J): Held, applicant cyclist not entitled when struck while riding with friends (not to/from place of employment) (d) Involving the opening or closing of a door of a bus, tram, or railway train  Added in 2013 in response to Koutroulis v TAC (VSC, 2011): held that injury caused by closing bus doors was not a TA  But note: closing of a door is not part of the driving process

The courts have interpreted the word ‘incident’ as a ‘discernible event’

1.2 1.

‘A discernible event’ or ‘a series of events happening at one approximate time’  

eg a series of major jolts in one journey: Porter v Bonjero (VSC, 2000), at [128] (Eames J). But not many jolts over series of journeys, over different roads, performing different duties.

2. Eames J in Porter v Bonojero [2000] at [128] stated:  In my view, the intention of the legislation, by use of the word "incident", is to identify a discernible event, which may be the subject of scrutiny as to whether it arose directly out of the driving of a motor vehicle.  It may well be that an "incident" might be constituted by a series of events happening at one

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

 1.3

approximate time, such as a series of major jolts during one journey, as a vehicle strayed on to a road which was in a state of disrepair. However, in my view, the singular "incident" would not encompass, for example, the driving over corrugated roads and the receiving of sudden jolts on two separate days, or at two different times on the same day. They would then be identifiably distinct incidents.

What is the relationship between the ‘incident’ and the injury?

De Bon v TAC (AAT, 1994; decision upheld in appeal to VSC, 1995) Facts 1. Claimant’s husband died in 1992 when he suffered ventricular arrhythmia (heart condition) while driving and died as a consequence Was the incident (suffering ventricular arrhythmia) and the injury (death) the same? 2. This was a spontaneous event that lead to his death 3. There was no link to his driving, other than it happened during his hearing AAT: held that ‘the ventricular arrythmia which was fatal was both the injury and the incident’. 4. But the words ‘as a result of’ means that ‘there must be a consequential nexus between the incident and the injury which nexus is missing when the injury and the incident are the same’ (p. 6). 5. Held, no TA, and so no compensation payable. VSC (Smith J) 6. at p. 9: AAT correct in its interpretation that the causal nexus is missing if the injury and the incident are the same 7. at p. 11: but AAT incorrect in its factual finding that the ventricular arrythmia and death were the same; its finding was most likely that the VA was the incident and the death was the injury.  In which case the two were distinct  Held, appeal allowed b/c of errors of fact by AAT, but AAT’s decision affirmed b/c it was correct in not distinguishing injury and incident b/c no evidence before AAT of this. Decision 8. Trial: The incident and injury was the same, and they are not separate and distinct- and therefore injured person was not entitled to compensation 9 . On appeal: agreed with the fact that there must be a distinction, but allowed appeal because there was an incorrect finding of fact that the two was the same- ther...