Opinion
Why practitioners should review their TAC files
30th Mar 2017
Now is the time to get excited about the Victims of Crime Assistance Tribunal (VOCAT) in Victoria. Other jurisdictions should take note.
The 2016 Victorian Court of Appeal decision of Pham v VOCAT [2016] VSCA 102 (Pham) means that up to $20,000 extra for lost earnings is available to victims of transport accidents where the conduct involved a crime. Presumably, the principle will extend to those who were injured at work.
What assistance can VOCAT provide?
Since the introduction of the Victims of Crime Assistance scheme and VOCAT, the law has provided for very little extra assistance from VOCAT if other schemes were involved. VOCAT is a payer of last resort and if a person was compensated for lost earnings through, for example, the Transport Accident Commission (TAC) or WorkCover schemes, they could not access VOCAT assistance for lost earnings as well. For accident victims or injured workers who previously earned more than the statutory maximums, this created financial hardship.
Pham provides that victims can claim the ‘gap’ between the amount of earnings they lose because of a crime and the amount compensated through other schemes, up to $20,000. For clients earning over $67,000 net annually, this may mean $20,000 extra assistance (18 months earnings being $100,000 net and the TAC covering only 80%).
Under the VOCAT scheme there is also up to $10,000 available as ‘special financial assistance’. It is not yet clear how VOCAT or the courts will deal with situations where an impairment benefit or compensation for pain and suffering is also recovered.
Further, clients can claim expenses under the VOCAT scheme which are not contemplated under the TAC scheme – as long as the expenses are a direct result of the crime or assist recovery.
Which TAC clients can access VOCAT?
For VOCAT to accept a claim arising from a car accident, it must be satisfied that the relevant act of violence was a crime capable of punishment by imprisonment. For example, VOCAT can award assistance if they are satisfied that the driver’s actions would have constituted dangerous or culpable driving. A driver does not need to be charged with or imprisoned for an offence for an award to be made.
Driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, and causing serious injury or death is punishable by imprisonment, even if the driver did not mean to harm anyone.
The following are examples of conduct which was ‘dangerous driving’ (plead or found by the court):
Failing to avoid an obstruction caused by vehicles stopped in the left hand lane: Stevenson v The Queen [2014] VSCA 184.
Driving through a give way sign at approximately 16km/h with the sun in your eyes and trees obstructing your view: Director of Public Prosecutions v Warrick [2016] VCC 1134.
Failing to merge from three lanes into two and driving in a dedicated bicycle lane: Veerman v The Queen [2012] VSCA 194.
Failing to pull over when ‘zoning out’ or fatigued: Director of Public Prosecutions v Borg [2016] VSCA 53.
In each of these cases, the injured person would have been able to make a TAC claim and also access VOCAT assistance.
Victims of crime applications should be made within two years of the date of injury. Outside this time, victims need to provide reasons for their delay. Lack of knowledge of their legal rights is not usually a sufficient excuse to allow an extension. For this reason, practitioners should identify files where the injury was caused by conduct which could be seen as a crime and decide whether it would be beneficial for their clients to make a VOCAT application. If clients would like to make a claim, this should be done within two years of the injury or as soon as possible.
Of course, VOCAT applications also overlap with personal injury claims which are outside the TAC scheme and should be kept in mind whenever a crime is involved in a personal injury claim. This article focuses on TAC files specifically because they are the ‘low-hanging fruit’ and because TAC clients cannot sue the TAC for earnings lost in the first 18 months. For our TAC clients, there is extra benefit in a VOCAT application as they can recover substantial VOCAT awards to negate the 18-month rule.
Adviceline Injury Lawyers recently assisted a cyclist who suffered a bad brain injury after a driver turned right in front of them without properly checking for oncoming traffic. VOCAT awarded $20,000 for lost earnings, $6,000 for special financial assistance and $1,650 to help the injured person move closer to treatment. For this reason, we encourage Victorian practitioners to check their files and make VOCAT applications where possible.
Sarah Thorn is a Lawyer at Adviceline Injury Lawyers and is an expert in traffic accidents, public liability and victims of crime.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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