Transport Accident Act 1986 (Victoria) — Zoe

Victoria act

Transport Accident Act 1986

In ForceVIC

Jurisdiction

Victoria

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act

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The Transport Accident Act 1986 creates a no-fault scheme that pays for medical care, lost wages, rehabilitation, and other support for people injured or killed in road, rail, or tram accidents in Victoria. The Transport Accident Commission (a government body) runs the scheme, collects charges from vehicle owners to fund it, and decides claims. It affects anyone involved in such an accident (drivers, passengers, cyclists, pedestrians), their families, employers, and health providers. Key rules cover who qualifies, how payments are calculated (for example, 80% of pre-accident earnings for the first 18 months), impairment benefits based on medical assessments, and limits on suing for extra money (only allowed for serious long-term injuries). It also sets penalties for fraud and requires prompt claims. This matters because it gives fast, reliable help without court battles over fault, while controlling costs for the community through strict rules and links to other laws like workplace compensation.

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What it does

The Transport Accident Act 1986 (the Act) establishes a comprehensive no-fault compensation scheme for persons injured or killed in transport accidents, administered by the Transport Accident Commission (TAC). At its core, the Act imposes a statutory obligation on the TAC to pay benefits where a transport accident directly causes physical or mental injury (s.3(1) definition of injury, incorporating nervous shock for direct involvement or witnessing) or death, provided the accident meets the statutory criteria in s.3(1) and s.3(1A). A transport accident is defined as an incident directly caused by the driving of a motor vehicle, railway train, or tram, expressly including out-of-control vehicles, certain pedal cycle collisions (including with open doors of buses, trams, or trains per s.3(1A)(d)), and incidents on private land in limited circumstances (ss.41A-41B).

The scheme operates through the Transport Accident Fund (s.27), funded primarily by transport accident charges levied on registered motor vehicles (Part 7, ss.109-115). These charges are calculated according to prescribed rates varied annually by consumer price index formulas (s.61(2)), with specific provisions for interstate vehicles (s.111) and manufacturer-controlled vehicles (s.112). The TAC's functions (s.12) include claims assessment and payment (ss.70-76), fund management, accident prevention, and rehabilitation program design (s.12(3)), with powers to authorise services (s.23) and enter individual funding agreements for long-term care (ss.61A-61D).

Compensation under Part 3 is structured in tiers. For the first 18 months post-accident (or manifestation of injury per s.3(4)), earners receive weekly payments for total or partial loss of earnings (ss.44-45), calculated as 80% or 85% of pre-accident weekly earnings (ss.4-5), subject to caps (s.44(3)) and offsets for other benefits. After 18 months, payments shift to loss of earning capacity (ss.49-51), with reviews at five-year intervals (s.55). Impairment benefits are payable for whole person impairment exceeding 10% (s.47(1)), assessed per the AMA Guides as modified (s.46A(2)), with lump sums scaled from $4,500 for 11% impairment upward to $252,000 for 100% (s.47(2) table). Death benefits include lump sums for surviving partners (s.57), periodical payments (s.58), and child allowances (s.59).

Current sections

Direct links to the current provisions in Transport Accident Act 1986.

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Who it affects

The Act primarily affects natural persons injured or killed in transport accidents, defined broadly to include drivers, passengers, pedestrians, pedal cyclists (with specific inclusions for dooring incidents per s.3(1A)(b)-(d)), and bystanders suffering nervous shock (s.3(1) injury definition). Dependants, including partners (s.3(1) definitions of dependent partner, domestic partner, spouse), children (s.3(1) dependent child), and immediate family members (s.3(1) member of the immediate family), are entitled to death benefits (ss.57-59). Minors and persons under legal disability receive additional protections (s.54, s.61D for individual funding agreements).

Employers are impacted through interactions with workers' compensation schemes (ss.37-38A, s.94A settlements with Victorian WorkCover Authority), with self-insurers and authorised agents (ss.11(e)-(f), 12(1)(jb)-(jc)) required to coordinate. Service providers—registered medical practitioners, psychologists, occupational therapists (s.23(1)(aaa)), hospitals (s.3(1) hospital), ambulance services, and vocational rehabilitation providers (s.3(1) vocational rehabilitation service)—must be authorised under s.23 for payments under s.60. Private health insurers may seek reimbursement (s.76A), while administrators of estates incur professional administration costs recoverable under s.62A where an administration order exists under the Guardianship and Administration Act 2019.

Vehicle owners bear the transport accident charge (s.109), with manufacturers (s.112), interstate operators (s.111), and railway/tram managers (s.115 agreements) subject to specific levies. Unauthorised or intoxicated drivers (s.40, s.102) face exclusions or reductions, as do those committing serious offences (s.39(3)). The TAC itself, as a statutory corporation (s.10), its Board (s.15), and staff are bound by governance, accountability (s.14), and secrecy rules (s.131).

Regulatory bodies, including the Tribunal (s.3(1) Tribunal), courts, and police (s.127 access to records), are affected in claims determination, reviews (Part 4 Division 3), and prosecutions (s.120). The Act extends to non-residents in limited circumstances (ss.35(1)(b), 36, 42), with corresponding laws recognised (s.39(4), s.40(4)). Seasonal earners (s.45AC), apprentices (s.4A), and self-employed persons (s.5, s.45AA interim payments) receive tailored treatment. Supported accommodation providers (s.3(1) supported accommodation) and primary caregivers (s.3(1) primary care-giver) are relevant for post-acute support (s.60(2)(d)).

Critically, the Act excludes certain participants: sports competitors in organised races (s.41, with exceptions for pedal cyclists per s.41(1B)), owners of uninsured vehicles on private land (s.41B), and those convicted of murder, manslaughter, or culpable driving involving the accident (s.39(3) as amended). Legal personal representatives (s.3(5)(c)) and next friends (s.103) act for minors or disabled persons. Compliance professionals, including lawyers handling s.93 serious injury applications, accountants reconciling interim payments (s.45AB), and insurers managing s.94 indemnities, must navigate the scheme's complexities.

Key duties and rights

The TAC's duties are enumerated in s.12: administering the Fund (s.27), assessing claims (s.70), paying benefits (s.35), determining charges (s.109), collecting data, promoting prevention and rehabilitation (s.12(2)-(4)), and acting as agent for WorkCover (s.12(1)(jb)). It must manage the scheme efficiently (s.11(a)), deliver compensation expeditiously (s.11(b)), and maintain internal structures (s.11(d)). Accountability to the Minister includes budget submission (s.29) and dividend payments (s.29B).

Rights to compensation arise under s.35 for residents injured in Victoria or, in limited cases, interstate (s.35(1)(b)). Earners have rights to weekly payments (ss.44-45 for first 18 months, ss.49-51 thereafter), impairment benefits (s.47 if >10% whole person impairment per s.46A), and medical services (s.60). Non-earners access s.51 loss of earning capacity and s.54 minors' benefits. Dependants receive death benefits (ss.57-59), with surviving partners entitled to periodical payments for five years or until pension age (s.58(5)). Severe injury sufferers gain safety net income benefits (s.54A) and supported employment (s.49(9)).

Claimants have rights to interim payments (s.72), reviews (s.77), and information release authorities (s.67A). The TAC must decide eligibility within 21 days (s.70), reconsider decisions (s.78), and index benefits (s.61). Injured persons may elect seasonal basis for loss of earnings (s.45AC) or individual funding agreements (s.61A) to promote autonomy (s.61A(3)).

Duties include notifying accidents (s.64 for drivers, s.90 for trailer operators), providing information (s.76), and advising return to work (s.45A). Fraudulent claims (s.116) or false information (s.117) trigger offences. Owners must pay charges (s.109) or face penalties (s.117C). Service providers must be authorised (s.23) and comply with reasonable cost determinations (s.3(1) reasonable).

Rights outside the scheme are curtailed: s.93 requires serious injury certification (30% threshold) or leave for common law damages, with caps (s.93(7)) and reductions for prior payments (s.93(11)). The TAC holds indemnity rights (s.94, s.104 against third parties) and may recover overpayments (s.75). Persons with legal disability have agreements executed by administrators (s.61D).

Enforcement duties fall on the TAC (s.107 proceedings, s.124 prima facie evidence certificates) and police (s.127 records access). The Board (s.15) must ensure efficient management (s.15(1)(c)), with directors disclosing interests (s.21). Regulations (s.132) prescribe forms, fees, and methods.

Penalties and enforcement

Penalties are graduated. Fraudulent obtaining of benefits (s.116) carries 100 penalty units or two years' imprisonment. Providing false information (s.117) or failing to pay full charges (s.117C) attracts 20 penalty units. Obstructing officers (s.118) or general offences (s.119) incur 10-20 penalty units. Specific breaches, such as non-notification of accidents (s.90(5), 15 penalty units) or obstructing inspections (s.127B, 25 penalty units or six months), are enforced via charge-sheets filed by the TAC or authorised officers (s.120).

Enforcement mechanisms include recovery of overpayments as debts (s.75), suspension of payments for non-compliance with medical examinations (s.71(2)), and cessation of liability (s.74). The TAC may withhold payments pending criminal charges (s.40A) and refer misconduct to regulatory bodies with suspension of payments (s.131A). Prosecutions must commence within three years (s.120(4)).

Civil enforcement includes indemnity recovery (s.94(3)-(12)), contribution from third parties (s.104), and judgments against uninsured drivers (s.156). The TAC may audit fund management agents (s.26(7)) and require statements of earnings (ss.49(4), 50(4), 51(5)), with non-compliance leading to suspension (s.55(3)).

Administrative enforcement involves eligibility decisions (s.70), impairment assessments (s.46A), and reviews by the Tribunal (s.77), with costs orders (s.79). Serious injury applications (s.93) require medical evidence, with the TAC able to issue certificates or defend proceedings. Indexation failures or incorrect charges may trigger refunds (s.61(6)).

For experts, note that s.117B creates an offence for obtaining non-payable benefits with knowledge, complementing s.116. Contributory negligence (s.106) reduces recoveries, while s.40A allows withholding pending charges. Court certificates on alcohol concentration (s.40A(4)) provide conclusive evidence (s.40A(5)). Compliance professionals should monitor s.131 secrecy breaches, with referrals under s.131A potentially triggering disciplinary action by bodies like the Medical Board.

How it interacts with other laws

The Act is expressly linked to the Road Safety Act 1986 (definitions of highway, motor vehicle, owner, registered motor vehicle in s.3(1); drink-driving offences in s.40; reports under ss.61-61A in s.39(1)(a)(i)). It cross-references the Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985 extensively (ss.3(1) definitions of employer superannuation contribution, self-insurer, worker; exclusions in ss.37-38A; settlements in ss.38AA, 94A; agency functions in ss.11(e)-(f), 12(1)(jb)-(jc)).

Interaction with the Guardianship and Administration Act 2019 occurs via administration orders (s.3(1) administration order, administrator) and professional administration costs (s.62A). The NDIS Act is engaged indirectly through individual funding agreements (ss.61A-61D) and severe injury definitions (s.3(1) severe injury). Family law interfaces via the Family Law Act 1975 (s.126(2)).

Common law is modified: per quod servitium amisit is abolished (s.93A); serious injury thresholds limit damages (s.93); discount rates are mandated at 6% (s.93(13), s.173); and interest on non-economic loss is barred (s.93(15), s.175). The Wrongs Act 1958 interacts in death claims (s.93(8), s.150(3)-(4)), with reductions for prior payments (s.93(11A)).

Health legislation is incorporated: Health Services Act 1988 (s.3(1) hospital); Health Practitioner Regulation National Law (definitions of medical practitioner, nurse, midwife, registered psychologist, registered occupational therapist in s.3(1); authorisation under s.23). The Mental Health and Wellbeing Act 2022 updates hospital (s.3(1)(b)).

Taxation and superannuation intersect in pre-accident earnings calculations (ss.4-5, s.6(2) excluding employer superannuation contributions) and indexation (s.61). Limitation periods are affected (s.93(19) deeming cause of action accrual at accident or manifestation). Privacy and secrecy are governed by s.131, with exceptions for regulatory referrals (s.131A) and information sharing (s.126C with the Department, s.127 with police).

Transitional provisions (Part 11, 14 divisions) preserve pre-1987 claims (Part 10) and address successive amendments, including to impairment methods (s.46AA) and rounding (s.46C, s.180). The Act binds the Crown (s.9) and prevails over inconsistent agreements (s.169).

Recent changes and why

Recent amendments reflect evolving policy on impairment, equity, and efficiency. The Transport Accident Amendment Act 2013 (effective 2013-2014) extended dependency claim time limits for minors (s.207), included occupational therapy (s.208), expanded transportation costs (s.209), and clarified dooring incidents (s.210). It adjusted s.46A for accident-related impairment and hearing loss (ss.214-215), increased family counselling caps (s.217), and extended travel expense claims to 24 weeks (s.219). These changes addressed gaps in support for dependents, rehabilitation, and practical costs, responding to stakeholder feedback on access and adequacy.

The Transport Accident Amendment Act 2016 repealed redundant serious injury thresholds in s.93(2A) and (17A) (ss.227B-227C), simplifying common law access while maintaining the 30% deeming provision. Indexation under s.61 was refined (s.227A).

The Compensation Legislation Amendment Act 2016 updated s.46A to prioritise the Spinal Impairment Guides Modification Document over AMA Guides in case of inconsistency (s.46A(2C)-(2E)), published in the Gazette on 6 October 2016. It added funeral travel allowances (s.230). These targeted spinal injuries, a common transport accident outcome, to ensure consistent, evidence-based assessments.

The Compensation Legislation Amendment Act 2018 introduced professional administration costs (new s.62A, Division 4 of Part 3) for administrators under Guardianship and Administration Act 2019 orders, payable where the administrator conducts estate administration business. It expanded s.39(3) and s.57(6)- (7), s.58(8)-(9), s.59(10A)-(10B) to exclude compensation for dependents convicted of murder, manslaughter, or culpable driving causing the deceased's death. Amendments to s.60(2CA)-(2CD) capped wage loss payments for parents visiting hospitalised children at $10,000, with a five-day excess (s.231). These changes promote equity, deter criminality within families, and control costs.

The Treasury and Finance Legislation Amendment Act 2018 (ss.3-18) updated definitions (dependent child, member of the immediate family), clarified pedal cycle collisions with stationary vehicles (ss.41A(3), 41B(3)), increased caps (funeral $14,135, family counselling $15,000), and aligned s.120 with three-year limitation for fraud offences. It added s.62A and refined s.60(2CA)-(2CD). These updates addressed inflation, modernised family recognition, and ensured consistency with other compensation schemes.

Why these changes? They respond to rising claim volumes, medical evidence on spinal injuries, judicial interpretations (e.g., serious injury thresholds), demographic shifts (domestic partners), and fiscal pressures. The 2013-2018 amendments expanded access for vulnerable groups (minors, parents) while tightening exclusions for culpable conduct, reflecting community expectations of fairness and scheme sustainability. Indexation and caps prevent erosion of real value. Overall, amendments maintain the no-fault core (s.1, s.8) while adapting to NDIS interfaces, superannuation, and evidence-based impairment (s.46A(2A)-(2B)).

Court challenges and controversies

Key controversies centre on s.93 serious injury thresholds. In Humphries v Poljak [1992] 2 VR 129, the Court of Appeal established the "serious injury" test as more than "significant," influencing subsequent cases. Petkovski v Galletti [1994] 1 VR 436 clarified that aggravation of pre-existing conditions requires the aggravation itself to meet the threshold. Mobilio v Balliotis [1998] 3 VR 833 addressed psychiatric injury, holding that "severe" requires a marked departure from normal. These doctrines ground s.46A assessments but generate disputes over AMA Guides application (s.46A(2)).

Impairment disputes frequently reach the Tribunal or courts. Transport Accident Commission v Lincoln [2003] VSCA 67 confirmed that psychiatric impairment assessment uses the Guide to Evaluation of Psychiatric Impairment for Clinicians (GEPIC) (s.46A(6)). Ingram v Transport Accident Commission [2011] VSCA 200 clarified rounding under s.46C: numbers are rounded to nearest whole percent only at the final combined value. Controversies persist on "current impairment" (s.46A(8)) post-treatment (s.46A(2A)-(2B)), with Harrington v Transport Accident Commission [2012] VSCA 12 emphasising stability.

Common law leave applications under s.93(4)(d) involve "serious injury" definitions. Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260 and Sampson v Transport Accident Commission [2011] VSCA 110 refined the "serious long-term impairment" test, requiring comparison with pre-injury state. The 2013 amendments (s.225) and 2016 repeals (ss.227B-227C) addressed backlog by removing certain thresholds, yet Karaoulis v Transport Accident Commission [2016] VSCA 182 highlighted ongoing debates on psychiatric overlays.

Indemnity and third-party recovery (ss.94, 104) generate disputes. Transport Accident Commission v Murray [2002] VSCA 157 clarified s.104 apportionment for contributory negligence. Settlements under ss.38AA and 94A with WorkCover often involve valuation controversies, resolved per Victorian WorkCover Authority v Transport Accident Commission [2005] VSCA 113.

Fraud prosecutions (s.116) raise evidentiary issues, with R v Nguyen [2003] VSCA 14 illustrating s.117B knowledge requirements. Secrecy (s.131) and information sharing (s.126C, s.127) have been tested in privacy contexts, though s.131A referrals to regulators have withstood challenge.

Recent controversies include spinal impairment (s.46A(2C)-(2E)), with the Spinal Impairment Guides Modification Document prevailing over AMA Guides. Individual funding agreements (ss.61A-61D) have faced disputes over "reasonable cost" (s.3(1) reasonable) and autonomy (s.61A(3)). The 2018 amendments excluding culpable family members (ss.39(3), 57(6)-(7)) sparked debate on collective punishment.

Tribunal reviews (s.77) and costs (s.79) remain contentious, particularly post-Byrne v Transport Accident Commission [2008] VSC 92 (noted in transitional provisions). Overall, courts emphasise textual fidelity to the Act's no-fault objects (s.8) while scrutinising impairment (s.46A) and serious injury (s.93) gateways.

Gotchas

Most practitioners overlook that s.46A(1F) mandates subtraction methodology for pre-existing injuries (except spinal, using apportionment per AMA Chapter 3.3f), yet many assessments erroneously combine without adjustment, risking Tribunal reversal. The "current impairment" rule (s.46A(2A)-(2B)) post-treatment is frequently misapplied; Harrington v Transport Accident Commission [2012] VSCA 12 requires assessment at the date of examination, disregarding surgical improvements unless the Guides specify otherwise.

Section 40A's withholding power during pending charges is underutilised; where a charge-sheet is filed within the limitation period (s.40A(3)), payments can be frozen until resolution, but failure to invoke it may estop later recovery. Seasonal earners' election under s.45AC(3) is irrevocable after first payment and binds for the entire entitlement period—many miss the 14-day window (s.45AC(4)(a)), defaulting to averaged pre-accident earnings (s.4).

Individual funding agreements (s.61A) are not "top-up" mechanisms; s.61C(1) displaces direct s.60 claims for covered services, yet clients often double-dip by seeking ad hoc reimbursements. The $10,000 wage loss cap for parents under s.60(2CA), with its five-day excess (s.60(2CB)), is rarely claimed correctly; acute financial hardship discretion (s.60(2CD)) requires evidence of inability to meet ordinary expenses, not mere inconvenience.

Section 93(19) deems the cause of action to accrue at accident or manifestation (s.3(4)), overriding general limitation rules, but many overlook that psychiatric claims must still satisfy the "serious injury" test without the 30% deeming if under threshold. The abolition of per quod servitium amisit (s.93A) eliminates employer claims for lost services, a trap for corporate plaintiffs.

Transitional minefields abound: s.188 applies amended s.46A to accidents 18 months pre-commencement of the 2004 Act, yet many assessments incorrectly use post-2004 Guides for earlier events. Section 61(6) prevents "negative indexation" by carrying forward reductions, but practitioners often recalculate from base rather than cumulative.

Enforcement gotchas include s.131A referrals suspending payments pending regulatory action (up to six months under s.131A(4)-(5)), yet many service providers continue billing unaware of the debt revival rule (s.131A(6)). Fraud under s.116 encompasses attempts (s.116(2)), with three-year limitation (s.120(4)) running from offence, not discovery.

For compliance, note s.45AB reconciliation of interim self-employed payments can yield offsets against future entitlements; failure to track creates overpayment debts (s.75). The $120 supported employment disregard (s.49(9), s.50(7)) is often missed, inflating post-accident earning capacity. Finally, s.42(6) defines "law of a place outside Victoria" to include Commonwealth law, catching many interstate claims.

How to comply

Compliance begins with accurate claims lodgment (s.67, approved form) within one year (s.68), supported by medical evidence and s.67A authorities. For earners, maintain records of pre-accident weekly earnings (ss.4-5); self-employed persons should provide three years' financials (s.5). Notify return to work immediately (s.45A) to avoid overpayments (s.75).

Impairment assessments require stabilisation (s.46A(1)), with requests for determination after three years if not stabilised (s.46A(1C)-(1E)). Use authorised providers (s.23) and ensure assessments follow AMA Guides as modified (s.46A(2)), disregarding unrelated impairments (s.46A(1F)). For spinal injuries, apply the Spinal Impairment Guides Modification Document (s.46A(2C)).

Medical and like benefits (s.60) demand prior authorisation for non-standard services (s.23); keep costs reasonable (s.3(1) reasonable, having regard to TAC schedules and HI tables). For equipment over $5,000 (s.60(12)), execute agreements on ownership and maintenance. Individual funding agreements (s.61A) must specify services, payments, reporting, and termination (s.61B); monitor for over-expenditure.

Weekly payments require ongoing earnings statements (ss.49(4), 50(4), 51(5)); failure suspends entitlements (s.55(3)). At 18 months, prepare for review (s.46), with five-yearly thereafter (s.55(2)). For death claims, calculate dependent status carefully (s.3(1) dependant, dependent partner), notifying immediately (s.64).

Charges compliance (s.109) involves timely payment at registration (s.109(3)); late payment within 28 days deems on-time (s.109(4)). Retain records for audits (s.26(6)-(8)). Avoid fraud by ensuring all information is accurate (ss.116-117); self-audit claims against exclusions (ss.39-41B).

For common law, obtain s.93 certificate or leave before issuing (s.93(4)); prepare GEPIC or AMA evidence. Indemnity claims (s.94) require notice (s.99) and cooperation (s.100). Refer misconduct to regulators via s.131A where appropriate, documenting consent or public interest.

Organisations should implement policies for s.127A inspections, s.131 secrecy training, and s.126C information requests. Legal teams must track transitional rules (Part 11) and indexation (s.61). Regular reconciliation of interim payments (s.45AB) and professional administration costs (s.62A) prevents debt. Engage authorised providers (s.23) and monitor Tribunal precedents on impairment and serious injury.

In summary, compliance demands proactive claims management, accurate record-keeping, stakeholder coordination, and awareness of evolving amendments. Regular training on key sections (s.3 definitions, s.46A impairment, s.60 benefits, s.93 thresholds) mitigates risks. For high-volume entities, automated systems for charge payment (s.109), notification (s.90), and review triggers (s.55) are essential. Always verify calculations against statutory formulas and TAC guidelines to avoid penalties or recovery actions.