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Unmasking the injustice: Inadequate compensation for road accident acquired brain injuries in Victoria

25th Jan 2024

The current Transport Accident Commission (TAC) compensation structure in Victoria does not adequately compensate the profound impact acquired brain injuries (ABIs) can have on individual sufferers and their families. Understanding of the significant, and often lifelong, impacts of ABIs (commonly referred to as TBIs – traumatic brain injuries in the transport accident context but referred to as ABIs throughout this article) has increased dramatically over recent decades. Despite this knowledge and understanding, the TAC compensation scheme still falls short of providing what is needed for ABI sufferers.

The outlook for many ABI sufferers under the current TAC structure is bleak. TAC compensation for ABI sufferers in Victoria is wholly insufficient and needs an overhaul. Understanding the profound impacts of ABIs, the inadequacy of TAC compensation, and the current TAC landscape, enables recommendations for improving the TAC structure.

IMPACTS OF AN ABI ON THE INDIVIDUAL AND THOSE AROUND THEM

Effects of ABIs and impacts on ability to work

The severity of ABIs varies dramatically across individuals from ‘mild’ to ‘very severe’.[i] Often referred to as an ‘invisible’ or ‘hidden’ injury or disability, an ABI is not always obvious as it impacts areas like thinking and behaviour.[ii] Despite the lack of outward signs of disability, sufferers can experience complex cognitive, physical, behavioural and psychological effects. Cognitive effects including memory and concentration problems, physical effects including fatigue and paralysis, behavioural effects including poor impulse control, and psychological effects including depression and anxiety[iii] can have profound and devastating impacts on a sufferer.

The effects of an ABI can have long-term, negative consequences for a sufferer’s employment prospects. ABI sufferers, with even a ‘mild’ or ‘moderate’ condition,[iv] may experience loss of employment or struggle to return to their pre-injury employment.[v] Although the obvious physical injuries have healed, an inability to perform at the same level professionally as they were prior to the accident can mean an end to the sufferer’s career. Compounding the challenges for an ABI sufferer, cognitive, and other impairments impact career opportunities such as re-skilling through education and training because study and retention of new information is more difficult. With ABI sufferers representing a relatively young cohort,[vi] many face lifelong consequences from their injuries if they are not provided with adequate financial support.

The emotional and social toll of ABIs

ABIs can dramatically change a person’s life and the lives of family members.[vii] Individuals can experience frustration due to their limitations. Many experience a loss of identity due to being unable to work and financially support themselves and their families. ABIs accompanied by personality and behavioural changes also mean sufferers struggle to maintain relationships.[viii]

An ABI also takes an emotional and social toll on families. Family members may ‘grieve’ the ‘loss’ of the person they knew before. An ABI sufferer’s personality and mood changes may cause increased tension and conflict within a household. Family roles and dynamics often change. Family members may give up work and adopt a carer role which can lead to their own social isolation. Families may also experience financial hardship.[ix]

Challenges to reintegrate after an ABI

An ABI sufferer faces short- and long-term challenges to reintegrate into the workforce and society. The immediate challenge of rehabilitation needs to be individually targeted to meet specific needs. Not every person recovers at the same rate and many people with an ABI live with ongoing effects of their ABI.[x] As rehabilitation aims to achieve a level of independence, reintegrating into a workforce may involve providing accommodation and ongoing support to assist with a person’s limitations.

Reintegration into society can be difficult for an ABI sufferer. Not only do personality and behaviour changes make maintaining friendships more difficult, but a sufferer may lose leisure pursuits and need support to find new social outlets.[xi] Further complicating the process of reintegration are the various mental health challenges which ABI sufferers often experience.

WHY TAC COMPENSATION FOR ABIs IS INADEQUATE

Shortcomings of TAC scheme

While the TAC scheme under the Transport Accident Act 1986 (Vic) (TAC Act) provides significant compensation and support to ABI sufferers at the ‘very severe’ end, sufferers with a ‘mild’ or ‘moderate’ condition may struggle to be adequately supported and compensated.

The TAC scheme relies heavily on impairment thresholds to determine compensation. Although there is a growing medical understanding of the impact of ABIs, and how even ‘mild’ ABIs can present ongoing challenges for a sufferer, the scheme’s reliance on levels of impairment means those with ‘mild’ or ‘moderate’ ABIs may have their impairment underestimated.

Misconceptions around severity of ABIs

A misconception exists about the severity of ABIs and influences assessing impairment. As an ABI affects areas such as cognition and communication, ABIs involve ‘invisible’ or ‘hidden’ disability. This ‘invisibility’ means people with an ABI may be misunderstood and how they act and respond to others can be misinterpreted and not linked to their ABI.[xii] The effects of an ABI can be subtle, slow to emerge and may be ‘missed’.[xiii] Even health professionals can misunderstand the problems caused by brain injury.[xiv] The misconception around ABIs means the TAC scheme often underestimates the level of impairment and leads to an ABI sufferer receiving inadequate compensation.

Difficulties obtaining a favourable assessment

Not only do ABI sufferers face the real prospect of having their level of impairment underestimated, the TAC scheme provides further barriers to obtain a fair assessment. Unlike the WorkCover scheme, where the threshold for receiving compensation can be significantly lower, it is far more difficult to obtain a ‘favourable’ assessment under the TAC scheme. Although both the TAC and Workcover schemes rely on the American Medical Association’s AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) for impairment assessments, the TAC Act is more restrictive in how impairment is assessed.[xv]

THE EXISTING TAC COMPENSATION STRUCTURE FOR ABI SUFFERERS

When Victorian motorists pay their vehicle registration they also pay an insurance premium called a ‘TAC charge’. The TAC charge helps fund the government owned TAC ‘no-fault’ insurance scheme which pays for the treatment and support of people injured in motor vehicle accidents.[xvi]

Once a TAC claim is made, assessing an injured person’s degree of impairment is a critical step TAC uses to rate the severity of a person’s injury and assess their compensation entitlement. This process relies on an expert medical assessment. As discussed above, the nature of ABIs and their ‘invisible’ effects make the assessment of their severity problematic which has direct consequences on the level of support and compensation an ABI sufferer will receive.

THE TAC COMPENSATION ENTITLEMENTS

The TAC scheme provides the following four types of entitlements for people injured in motor vehicle accidents:

• medical expenses
• loss of earnings benefits
• impairment benefits, and
• common law damages.

Medical expenses

The TAC scheme covers the accident related medical expenses of a person injured in a motor vehicle accident. This entitlement is for all accident victims, irrespective of the severity of their injuries, and is subject only to receiving TAC approvals for treatments or services.[xvii]

Loss of earnings 

A person injured in a motor vehicle accident is entitled to receive income support for up to three years as this is a ‘temporary benefit’ to enable an injured person to recover enough to return to work.[xviii] Loss of earning capacity benefits can be paid from three years onwards if the injured person’s combined whole person impairment is assessed at over 50%. This represents a very high threshold for an entitlement to an ongoing loss of earnings benefit, and very few people qualify.

ABI sufferers with ongoing symptoms that affect their capacity to work, but do not rate highly when assessed in accordance with the AMA Guides are unlikely to achieve a 50% impairment assessment. This results in unfairness to ABI sufferers as they will experience ongoing loss of earnings and yet will receive no further income support from TAC.

Lump sum impairment benefit 

A person assessed with an impairment of 11% (or more) is entitled to receive a one-off lump sum payment to compensate for a permanent loss of function. Under the TAC Act[xix], the quantum of the benefit depends on the assessed level of impairment. Impairment is assessed based on the AMA Guides in accordance with the TAC Act.[xx] There remains a real prospect of ABI sufferers receiving a low impairment assessment and a low lump sum benefit.

Common law damages

A further avenue for compensation is by pursuing common law damages for ‘pecuniary loss’ and ‘pain and suffering’.[xxi] A person must first establish a ‘serious injury’ to have an entitlement to claim common law damages. A person is deemed to have a ‘serious injury’ if their impairment is assessed at 30% or more. Otherwise, TAC may grant the person a ‘serious injury’ certificate or a court can decide the issue.[xxii] A person must also establish negligence against a third party to entitle them to common law damages.

An ABI sufferer faces significant barriers to succeed in a common law action. Not only must the person pass the hurdle of ‘serious injury’, in circumstances where the level of disability of ABI sufferers is often underestimated, but they also have to establish negligence.

Example of risk of inadequate compensation for an ABI sufferer

Under the TAC scheme, many ABI sufferers are at risk of ‘falling through the cracks’ and not receiving adequate compensation. By way of example, if an ABI sufferer is assessed with a 15% impairment, they would receive medical expenses and a modest lump sum benefit.[xxiii] If they have a loss of earning capacity they will only receive income support for three years.

With a 15% impairment, the ABI sufferer will not automatically be deemed to have a ‘serious injury’ for common law damages. Even if they overcome the ‘serious injury’ hurdle, they will not receive any further compensation if they are unable to establish negligence against another party. Failing to succeed in a common law claim means the person will be stuck with the TAC no-fault system. The future for such an ABI sufferer is bleak as they may ultimately need to rely on a disability support pension which is small and not reflective of their ongoing needs.

RECOMMENDATIONS FOR IMPROVING THE COMPENSATION STRUCTURE

The TAC needs to properly support people in the community with ABIs and there are many ways to make the TAC compensation structure work better to protect people with ABIs. Currently the laws governing TAC compensation do not allow adequate compensation for ABI sufferers.

Law reform, driven by the Victorian Government and supported by TAC, is needed. Law reform should consider the following:

• If a person has an ABI and cannot work, they will not necessarily get classified as having a severe injury and therefore will not qualify for loss of earnings until retirement age.
• Higher levels of financial compensation is needed for those injured with an ABI.
• Longer terms of compensation are needed to support ABI sufferers for longer in their lives.
• Greater levels of financial support are needed for families and carers supporting an injured person.
• The AMA Guides need modifications to ensure the ABI cohort do not miss out on the compensation they need and fall through the cracks. A Guides’ modification document could help with this process.

This is an edited version of an article first published by Robinson Gill Lawyers.

The ALA thanks Jeremy King for this article.

Jeremy King is a Principal Lawyer at Robinson Gill Lawyers. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.

Tags: Compensation Victoria South Australia Jeremy King ABI TBI