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Common Law Claims

In addition to your claim to ‘No Fault Benefits’, you may also be entitled to claim damages at common law.  These include compensations for pain and suffering and low of enjoyment of life (presently indexed at $535,850 maximum), and past and future loss of earnings (presently indexed at $1,205,730 maximum).  The total maximum payable is, therefore, $1,741,580.

 

The common law entitles you to bring a claim for damages if you can establish that:

  • You have a ‘serious injury’ within the meaning of the law, and
  • The accident was due to the negligence or fault (at least in part) of another party.

All Victorian registered (and unregistered) motor vehicles are covered by compulsory third party insurance through the Transport Accident Commission.  This means that in the vast majority of common law claims, the negligent party will be indemnified or covered by the TAC as the insurer and it is, therefore, the TAC rather than the defendant who will pay the damages to the injured person.

Before you can bring a common law claim you must first satisfy the TAC or a judge at the County Court that you have suffered a ‘serious injury’. The Transport Accident Act defines serious injury as:

  1.   An impairment assessment of 30% or more made by the TAC or VCAT,
  2.   The TAC or the County Court granted a ‘Serious Injury Certificate’ on the basis that you have:
  3.   A serious long-term impairment or loss of body function (physical injury), or
  4.   A permanent serious disfigurement (scarring), or
  5.    Severe long-term mental or severe long-term behavioural disturbance or disorder (Psychiatric or psychological injury), or
  6.   Loss of a foetus

Either an inability to perform your normal occupation (if applicable) and/or restrictions on your ability to carry out social and domestic activities are considered when determining whether your injuries are deemed to be serious.

TAC Common Law claims must be commenced within six years of the date of the accident.  This six-year period can be extended at the discretion of the court pursuant to the Limitations of Actions Act, under certain circumstances.

If you are unsure about the application of this to your circumstances or would an obligation free consultation and advice in relation to the prospects of your Common Law Claim, please contact our Law Institute of Victoria Accredited law experts today.

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