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    Transport Accident - Loss of Earnings

    By Fortitude Legal Admin

    TAC Loss of Earnings Benefits

    If you have been injured in a transport accident and have an accepted TAC claim, you may be entitled to receive compensation in the form of loss of earnings benefits.

    Benefit Duration

    People injured in a transport accident are able to claim loss of earnings benefits for a period of 18 months following the transport accident, subject to providing certificates demonstrating that their transport accident injuries are causing incapacity for work.

    Qualification for Benefit – “Earner”

    To qualify for loss of earnings benefits, the injured person must demonstrate that they are an “earner”.  To establish that they are an earner, the injured person must be in full-time or part-time employment as an employed or self-employed person:

    1. At any time during the eight weeks immediately preceding the accident;
    2. During a period or periods equal to at least 13 weeks during the year immediately preceding the accident; or
    3. During a period or periods equal to at least 26 weeks during the two years immediately preceding the accident.

    No Loss of Earnings Benefit Typically paid in first 5 days after accident

    Typically, the TAC will not pay loss of earnings benefits during the first 5 days that the injured person was unable to work, unless the person is unable to establish acute financial hardship.

    Benefit Calculated on Basis of Pre-Accident Weekly Earnings

    Loss of earnings benefits are calculated on the basis of the injured person’s pre-accident weekly earnings.  The default position in relation to the calculation of a person’s pre-accident weekly earnings is to use the injured person’s earnings during the 12 months prior to the transport accident and to calculate a weekly average on the basis of these earnings.

    Circumstances Where TAC Should Not Take the Average of Earnings During the 12 Months Prior to the Accident

    There are circumstances where the TAC should not calculate pre-accident weekly earnings on the basis of the injured person’s average earnings over the 12 months prior to the accident.  These circumstances include:

    1. The injured person received a pay rise during the 12 months prior to the accident which entitled the person to earn more on a continuous basis (for example, move from part time employment to full time employment or change of job);
    2. The injured person was a full-time student at the time of the accident, but would have completed their studies after the transport accident, then the person would be entitled to have their rate of earnings recalculated on the basis of the amount the person would have received on completion of the educational course;
    3. If an injured person had entered into an arrangement for employment or self-employment at a particular date and time, the amount the injured person would have expected to receive in that employment;
    4. If an injured person is self-employed, the TAC should have regard to the earnings of the self-employed person in the 3 years prior to the accident. The TAC should not simply take an average of the three years earnings.  When calculating earnings for a self-employed person, the TAC should consider the costs incurred by the injured person in earning the revenue (i.e., the TAC will not calculate earnings on the basis of sales).

    TAC Requirement to pay Loss of Earnings Benefits at 80% of Pre-Accident Weekly Earnings

    Typically, the TAC is required to pay the injured person at the rate of 80% of their pre-accident weekly earnings.  However, if a person is a low-income earner there is a formula that allows an injured person to be paid up to 100% of their pre-accident weekly earnings.

    The 80% formula sets a statutory minimum figure, which is currently set at $747 and allows an additional sum of $211 for the person’s first dependent and an additional $68 for every additional dependent.

    The formula also has a statutory maximum figure of $1,500.

    The statutory minimum and maximum figures are indexed each financial year.

    Please note the following worked examples to assist in understanding the ways that the formulas are utilised:

    • John’s pre-accident weekly earnings are $1,100 per week and he has a dependent partner and dependent child. 80% of $1,100 is $880.  However, given John’s income and his dependents he would receive loss of earnings benefits in the amount of $1,026 (Dependent formula of $747 + $211 + $68 = $1,026).  You will note that John is not able to receive loss of earnings benefits at a sum greater than his pre-accident weekly earnings.
    • Andrew’s pre-accident weekly earnings are $5,000 per week. 80% of $5,000 is $4,000.  However, given that Andrew’s earnings exceed the statutory maximum his loss of earnings benefits are reduced to the statutory maximum of $1,500.
    • Angus’ pre accident weekly earnings are $1,000 per week and he does not have any dependents. 80% of $1,000 is $800.  The statutory minimum is $747.  Given that 80% exceeds the statutory minimum, Angus will receive the higher sum of $800.
    • Louis’ pre accident weekly earnings are $50 per week. 80% of $50 is $40.  The statutory minimum figure is $747.  Louis would receive loss of earnings benefits of 100% of pre-accident weekly earnings, i.e. $50 per week.

    Top up of Loss of Earnings Benefits on Return to Work

    The TAC is able to pay a partial loss of earnings benefit to an injured person upon return to part-time work provided that they continue to provide certification that they are incapacitated for work and also that the earnings from the part-time employment do not exceed the injured person’s entitlement to loss of earnings benefits.

    Loss of Earnings Benefits are a No-Fault Benefit

    The TAC will typically pay the benefit regardless of whether the injured person was at fault for the accident.  However, there can be some circumstances where the person is not entitled to loss of earnings benefits, or the compensation entitlement may be reduced:

    1. The injured person was driving the vehicle at the time of the accident without a licence;
    2. The injured person was driving an unregistered vehicle;
    3. The injured person was driving under the influence of alcohol or drugs;
    4. The injured person was convicted of a serious criminal offence connected with the driving of the vehicle, i.e., manslaughter, culpable driving or dangerous driving causing death;
    5. Refusing to comply with directions in relation to drug or alcohol analysis.

    Impact of Loss of Earnings Benefits on Common Law Damages

    The Transport Accident Act precludes a person from claiming any form of income loss sustained in the first 18-month period after the transport accident as part of a common law damages claim.  Therefore, any shortfalls on loss of earnings benefits are unable to be recovered.  As such, it is important to ensure that the claim for loss of earnings benefits is maximised.

    Challenging TAC Decisions on Loss of Earnings Benefits

    It is apparent that the nature of calculation of loss of earnings benefits can be complex and at Fortitude Legal, we regularly see circumstances where the rate of loss of earnings benefits has not been calculated appropriately.  We have been able to assist many people to successfully challenge their rates of loss of earnings benefits leading to greater payments being made to our clients.

    We are also experienced in challenging decisions made by TAC to terminate loss of earnings benefits prematurely.  This situation typically occurs when the TAC determines that the injured person has a capacity for work on account of the opinion of an independent medical examiner.

    Our office has had great success in challenging Loss of Earnings decisions through the No Fault Dispute Resolution Protocols. If you, or someone you know, requires assistance with their claim for loss of earnings benefits, please contact us on 1300 020 618.  It costs nothing to ask!

     

    Injury Caused by Livestock Straying onto Road - Your Rights

    By Fortitude Legal Admin

    Being regional lawyers, we regularly come across injuries on the road caused by straying livestock.  The presence of a cow, horse or sheep on a public road does not of itself enable an injured motorist to obtain compensation from the owner of the livestock in the event of injury.

    In order to be entitled to compensation for a collision between a motor vehicle and livestock, a claim for compensation must be lodged with the Transport Accident Commission (hereafter referred to as the TAC).  Should the claim for compensation be accepted, the TAC will be required to pay No Fault entitlements in accordance with the Transport Accident Act 1986 (Vic).

    No Fault Entitlements

    No Fault entitlements payable by the TAC include:

    • Medical and Like Expenses
    • Income Benefits
    • Impairment Benefit

    These benefits are payable in circumstances where there is a collision between a motor vehicle and livestock, irrespective of whether the owner of the livestock is found tobe at fault.

    Serious Injury

    When an injury occurs as a result of a collision between a motor vehicle and livestock, the injured motorist is required to demonstrate that they have suffered from a serious injury prior to brining a common law claim.

    A serious injury can be proven by establishing a permanent whole person impairment of 30% or more in accordance with the AMA Guides 4th Edition; or

    Demonstrating a serious injury via the “narrative test”.  The narrative test defines serious injury as:

    • Serious long-term impairment or loss of a body function; or
    • Permanent serious disfigurement, such as scarring; or
    • Severe long-term mental or severe long-term behavioural disturbance or disorder; or
    • The loss of a foetus.

    Initial application via the narrative test is made to the TAC.  Should the TAC deny the serious injury application, a court proceeding is able to be issued to request a County Court Judge to grant leave to the injured party to proceed with the claim.

    Negligence

    In order to successfully obtain damages from the owner of livestock the following would need to be established:

    1. The identity of the party responsible for keeping the livestock contained (i.e. the owner of the livestock or the owner of the property from where the livestock has strayed).
    2. The party responsible for keeping the livestock contained has failed to take reasonable steps to keep the livestock on the private property, which in turn has led to the transport accident. For example, it may be able to be demonstrated that the owner of the livestock has inadequate fencing or has left a gate open.

    Often such landowners will hold policies of insurance, which include public liability coverage.

    There may be circumstances where the owner of the livestock will not be found to be negligent.  For example a livestock owner may argue that they are not at fault when cows escape from a paddock as a result of tree unexpectedly falling over within a paddock and taking down a fence.

    The circumstances of negligence involving livestock can be complicated and often require early investigations to ensure that the necessary evidence to prove negligence against the person(s) responsible for the livestock.

    If these steps are not taken at an early stage, the injured party may lose the opportunity to obtain damages in relation to their injuries.

    Damages – What is Available?

    When the injury occurs as a result of a collision between livestock and a motor vehicle, damages may be available for pain and suffering and for pecuniary loss.  As the Transport Accident Act applies to these claims, the current threshold to be entitled to receive compensation for pain and suffering and pecuniary loss is currently set at $59,150.  If a claimant does not breach the threshold, they would not be entitled to receive any compensation.

    The law currently sets a statutory maximum of $1,331,890 for pecuniary loss and a maximum of $591,910 for pain and suffering damages.

    Please note that the common law time limitation to proceed with a claim via the transport accident act is 6 years for an adult.  Please note that extensions of time can be granted in exceptional circumstance and that alternative time limitation periods may apply in relation to minors or people under a disability.

     

    Forced Adoption - Compensation Scheme Announced

    By Fortitude Legal Admin

    If you have been impacted by forced adoption practices, you may be entitled to bring a common law claim and sue the relevant institution for compensation.

    In 2021, the Parliamentary Inquiry into Historical Forced Adoption in Victoria uncovered that thousands of women who gave birth between 1958 to 1984 suffered trauma as a result of forced adoption practices by hospitals and other organisations. Women were often sent to institutions which were run by religious and other bodies. Sadly, many of those women were subjected to abuse as well as cruel and degrading treatment, including being restrained (either by medication, physical force or violence), being separated immediately from their newborn baby, and being coerced into signing consent forms for the adoption of their baby, against their wishes.

    At Fortitude Legal, our Managing Director and Personal Injury Specialist, Katalin Blond, and her team will handle your matter sensitively and with respect.

    What compensation can I claim?

    You may be eligible to claim the following types of compensation for your psychological injuries:

    • Pain and suffering;
    • Past loss of earnings and future loss of earning capacity (including superannuation);
    • Past and future medical treatment;
    • Past and future gratuitous care (for example care provided by family or friends);
    • Aggravated or exemplary damages, punishing the individual perpetrator or the institution who failed to protect you.

    You may also seek a personal response or an apology from the responsible institution.

    Is there a redress scheme?

    In March 2022 the Victorian Government announced $4,000,000 of funding to design a redress scheme for mothers impacted by forced adoption. The Government indicated that the scheme will provide compensation, counselling support and the option of integrated birth certificates, listing both the biological and adoptive parents.

    On 26 October 2023, the Victorian Government announced a payment of $30,000 to birth mothers affected by forced adoption practices, together with other supports.  Whilst full details of the scheme are yet to be provided, the Government has indicated that application for the Scheme will open on 1 February 2024.

    At Fortitude Legal we provide a free no obligation initial appointment to those directly impacted by Historical Forced Adoption Practices.  We will register your interest in applying for compensation and provide advise on any other potential rights you may have.

    What support services are available?

    If you have impacted by forced adoption practices, you can contact the following organisations for psychological support:

    Please call our friendly team of expert personal injury lawyers to have a free and confidential chat about your potential entitlements.

    child abuse

    By Fortitude Legal Admin

    Children and teenagers spend most of the day at school where they deserve to feel safe. Students are in a vulnerable position at school, being in the care, supervision and control of teachers and education support staff such as aides, counsellors and other employees.  Sadly, the Royal Commission into Institutional Responses to Child Sexual Abuse revealed many children have suffered from sexual and physical abuse in Victorian schools. Perpetrators are highly manipulative, using a variety of techniques to groom students over a period of time, to control children and to try to stop them from disclosing the abuse.

    Teachers and staff at public, private, and boarding schools have a duty of care to take all reasonable precautions to reduce the risk of child abuse being committed by individuals associated with the school. This duty is non – delegable and applies to principals, teachers and all other staff working with children and extending to all interactions at schools and events off campus, including excursions, camps, sporting activities, competitions, music performances, tutoring and other interactions beyond school hours.

    Schools have a responsibility to take reasonable care to reduce the risk of physical and sexual abuse. This can include, for example:

    • Completing background checks during recruitment of staff, volunteers and student teachers including Criminal Record Checks and Working with Children Checks;
    • Ensuring adequate supervision of teachers and other staff at all times;
    • Undertaking risk assessments;
    • Complying with existing policies and procedures;
    • Investigating and responding promptly and thoroughly to any complaints and allegations of inappropriate behaviour.

    In addition, all Victorian schools must abide by the 11 compulsory minimum Child Safe Standards and comply with mandatory reporting obligations. These reporting obligations require teachers and other staff to make a report to Child Protection (the Department of Families, Fairness and Housing) as soon as reasonably practicable, upon forming a belief on reasonable grounds, that a child is in need of protection from physical injury or sexual abuse.

    Children who are victim – survivors of physical and sexual abuse may be entitled to bring a compensation claim against the school and/or the perpetrator of the abuse. The team of local lawyers at Fortitude Legal are experienced in representing victim – survivors and have successfully obtained compensation for students who have been abused in educational settings.

    Parents and students who are affected by child abuse can contact the following organisations for support:

    If you would like to have a confidential chat with our expert lawyers, please contact your local team at Fortitude Legal who will handle your enquiry sensitively, discretely and confidentially.

    What is the Workplace Injury Commission?

    By Fortitude Legal Admin

    On 1 September 2022, the Accident Compensation Conciliation Service changed its name to the Workplace Injury Commission (“WIC”).  The WIC is responsible for attempting to resolve disputes in relation to workers compensation entitlements between an injured worker and the WorkCover insurer via conciliation or arbitration. The introduction of the WIC led to some additional changes for workers including:

    1. Third parties (including lawyers) are able to submit a request for conciliation on behalf of a worker;
    2. Lawyers can appear on behalf of a worker at conciliation (provided that agreement is provided by WIC);
    3. WIC is able to dismiss a dispute from conciliation;
    4. A worker can elect to send a dispute to arbitration (rather than issuing proceedings in the Magistrates Court) after having received a genuine dispute certificate through conciliation.

    In our view, the most important of the listed changes is the introduction of an arbitration process for injured workers.  The arbitration process is available to injured workers who were injured on or after 1 September 2022 and the dispute relates to:

    1. Weekly payments;
    2. Medical and like expenses (such as surgery, physiotherapy, or home help);
    3. Superannuation contributions;
    4. Interest on an outstanding amount.

    Arbitration is not available in relation to:

    1. Access to information requests;
    2. Impairment benefits claims;
    3. Provisional payments;
    4. Return to work arrangements;
    5. Agreements reached at conciliation or arbitration;
    6. Medical Panel Opinions;
    7. A decision not to accept an application for conciliation or referral for arbitration;
    8. An issue that was previously finalised by a court or arbitrated;
    9. Injuries that happened before 1 September 2022;
    10. An injury that occurs outside of the Victorian Workers Compensation scheme.

    The goal of the arbitration scheme is to provide a final decision to workplace compensation disputes that haven’t been resolved through conciliation.  The arbitration scheme aims to provide greater access to justice through a low cost, prompt and informal process and as an alternative to going to court.  The arbitration process allows for the worker, WorkSafe Agent or Self-Insurer to request legal representation at the arbitration.  It falls to the injured worker, WorkSafe Agent or Self-Insurer to make the application to the Arbitrator after electing to proceed down an arbitration pathway.

    It is apparent that there may be circumstances where the arbitration scheme is the appropriate avenue for an injured worker to attempt to resolve a dispute.  We would anticipate that this situation may include medical disputes or claims for weekly payments of compensation for a limited financial value.

    Fortitude Legal holds concerns about the imbalance in knowledge and power that eventuates from having a trained insurance expert being opposed to an injured worker in an arbitration hearing.

    Current arrangements are for arbitration hearings to take place at the WIC premises on Spring Street in Melbourne.  The hearing of a matter is expected to take place in person, although it is anticipated that administrative hearings may be able to be conducted online.  Given that the access to justice is a prime focus of the WIC, it is important that immediate steps be taken to create arbitration rooms throughout Regional Victoria so that regional workers are able to be afforded the same opportunities as those of our metropolitan cousins.

    Whilst we understand that there has not yet been an arbitration hearing conducted under the new system, we would anticipate that hearings will take place in the next month or two.

    It is important that injured workers understand their rights prior to electing to go down the pathway of arbitration.  If you, or someone you know, needs assistance with their WorkCover claim, please contact Fortitude Legal on 1300 020 618.

     

    Can my Employer or WorkCover Agent Attend my Medical Appointments?

    By Fortitude Legal Admin

    Can my Employer or WorkCover Agent Attend my Medical Appointments?

    The simple answer is no. Without your consent, it is a flagrant breach of your privacy.

    Many of our clients approach us and query whether their employer or their WorkCover representative is permitted to attend their private medical appointments.

    Frequently, employers and their representatives ‘invite’ themselves to attend an injured worker’s private medical appointment. It will often be indicated to the injured worker that it is common practice for them to attend, and it is a practice that is necessary given a WorkCover claim has been lodged.

    It leaves the worker wondering whether they will be doing the wrong thing if they refuse, no matter how uncertain they may feel about the prospect of an employer or third party becoming privy to their private medical history.

    If your employer or their WorkCover representative asks to attend your medical appointment, you are entitled to say no. That is, even if the consultation relates to a work-related injury or condition.

    The Doctor and patient relationship is one of strict confidentiality, much like the solicitor and client relationship. There is no legal obligation for an injured worker to permit the employer, their representative or anyone else for that matter to be present during a medical examination.

    Whilst the Victorian WorkCover legislation requires both the injured worker and the employer to engage with and facilitate a possible return to work, those obligations do not extend so far as to permit attendance at the worker’s medical appointments. WorkCover will have the legal power to obtain, through written requests to your doctor, your medical records and reports by virtue of you having lodged a WorkCover claim; but no-one is permitted to attend your confidential medical appointments.

    Recent reports from our clients and their treating practitioners indicate that employers and their WorkCover representatives are increasingly using this practice as a vehicle to apply pressure and influence to suit their objectives. This may unfortunately extend to influencing the treating practitioner to amend or adjust a WorkCover certificate, or to agree to a Return-to-Work plan to suit the employer’s needs, and not necessarily those of the recovering worker.

    In summary, there is very little to be gained by you allowing an employer or their WorkCover representative to attend your private medical appointment, and a lot to be lost. As common practice at Fortitude Legal, we recommend our clients ensure that the employer and their WorkCover representatives are advised that they are not to attend private medical appointments, under any circumstances.

    We consider that greater transparency from WorkCover agents and third parties when speaking to injured workers when seeking to engage in this practice is required.

    Should you require assistance with your WorkCover entitlements, contact our office on 1300 020 618 to discuss your rights.

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    Truckies Rocked by Suicide Trauma Fight for Justice

    By Fortitude Legal Admin

    A Category of Forgotten Worker/Road User

     

    This is an extremely distressing topic for us to raise, but we feel that not having the debate is to sit back and perpetuate a failure of the law and insurance for a category of hard-working, everyday people.

    It is a topic that involves the tragedy of suicide, so if this causes distress please take care in reading on and seek help where required – it is not our intention to cause upset.

    Our community has become very good at suicide prevention at the outset, with excellent local medical and allied practitioners working over-time to assist struggling people. However, where a situation arises in the course of someone’s employment on our Victorian roads, the law in our view fails workers and creates an abyss for them.

    Our clients have been exposed to the very tragic circumstance of pedestrian suicide by truck. There is no doubt the struggling person did not intend to cause harm, and our clients have been ‘blameless’ in an unavoidable situation while driving heavy vehicles. There is devastation which impacts the whole community. A life is lost, families are shattered and a worker effectively loses their life too. So, legally what happens next?

    The injured worker/driver will suffer severe nervous shock injury. They will be entitled to receive limited ‘no-fault’ compensation benefits under the WorkCover scheme. More often than not, their psychiatric injury is assessed under an almost unattainable threshold of 30% to qualify for an impairment benefit lump sum. It is difficult to envisage much worse that a person could be exposed to, yet these assessments fail them.

    The injured worker/driver will most likely satisfy the “serious injury” threshold in the TAC legislation and will make out the elements of a common law claim for damages – but where do they go? The employer has often done nothing wrong; the TAC are only liable to indemnify a party for negligent acts arising out of the driving or use of a motor vehicle. The pedestrian’s estate will often be insufficient (and our clients do not wish to go down that path in any event), and rarely will a pedestrian be covered under the public liability component of a home and contents insurance policy (noting: (a) there may be none; and (b) there are exclusion clauses in such policies – similar to problems we are seeing with the E-Scooter cases).

    The blameless injured worker/driver is then left with ‘hollow’ rights and falls into financial ruin if they are unable to return to work. This is the aftermath the law has failed to deal with.

    We are calling for consideration of some form of extension of limited indemnity from the TAC as a nominal Defendant against which the blameless worker could claim some damages in this very strict and limited category of case involving a pedestrian and a driver of a heavy vehicle in the course of their employment when confronted with this known, but under-reported, ‘occupational hazard’. We are not suggesting comprehensive coverage for all incidents involving motorists and pedestrians – that would be an impossible burden for the very well-run TAC scheme. However, the reality is that in this situation there is “double insurance” (both WorkCover and TAC premiums being paid) with no benefit for the worker.

    This is one potential solution; it may not be the ultimate solution, but we hope to trigger a debate. To remain silent on this issue is to fail these workers/road users. If you believe in the rights of Victorian workers and road users, please join us and speak up for them – we have to at least try something. Call us crazy, but the public feedback has been enormous.

    This is a legally and emotionally complex issue. However, we are of the view that this is precisely what the law needs to deal with – it is no excuse for the law to be missing in action. If the law is not working for our people, it is not working properly in this space.

     

    If you or anyone you know needs help call:
    Lifeline on 13 11 14
    Griefline on 1300 845 745
    Kids Helpline on 1800 551 800
    Beyond Blue on 1300 224 636
    Headspace on 1800 650 890
    Mensline Australia on 1300 789 978
    Care Leavers Australasian Network (CLAN) on 1800 008 774
    Head to Health at headtohealth.gov.au

     

    Autonomous car

    By Fortitude Legal Admin

    Yesterday’s horrific transport accident in Armadale which left a woman in a critical condition at The Alfred Hospital after being struck by the driver of a vehicle allegedly on Autopilot, is a stark reminder of every driver’s need to understand the capabilities of the technology they are using and their non-delegable duty to be responsible for the safety of others whilst they are in charge of a motor vehicle.

    With surging petrol prices and an increasing take-up in vehicles with automation systems, it is imperative that the technology is not misunderstood for more than what it is, and that drivers are educated in the use and limitations of their vehicle.

    Levels of Autonomous vehicles

    The Society of Automotive Engineers (SAE) developed an industry standard scale dividing autonomous vehicles into six levels with Level 0 having no autonomous features and Level 5 vehicles being fully autonomous ie:  not requiring a driver.  In 2021 the SAE published an update to its definitions to clarify that Levels 0-2 are “driver support features” requiring the driver to still be heavily involved with the vehicle’s operation.

    There are a number of manufacturers currently incorporating automation systems into their vehicles including Tesla, Mercedes, GM and Volvo, but these are what are known as Level 2, which means that whilst the car can control some functions such as steering and speed on a marked highway, the driver still has to be in control of the vehicle.

    Tesla Autopilot function

    The vehicle in question in yesterday’s accident was reported to be a Tesla Model 3.  Whilst Tesla asserts that the Tesla Autopilot function enables the car to steer, accelerate and brake automatically within its lane, Tesla’s own site points out that the “Autopilot features require active driver supervision and do not make the vehicle autonomous”.

    Your responsibility

    Whilst we cannot comment on the specifics of yesterday’s accident, drivers remain the sole person responsible for the safe driving of the vehicle under their control regardless of the make, model or the technology it utilises.

    “Whilst yesterday’s accident is reportedly the first case involving a Tesla for Victoria’s major collision unit, in my opinion, it would be a tenuous defence for any driver to rely on an argument that their vehicle manufacturer was in some way responsible for an accident in circumstances where the use of the technology is outside the guidelines indicated by the manufacturer, and where the driver has failed to uphold his or her responsibility in the safe driving of their vehicle.

    We watch with great interest as to the precise type of data from the vehicle’s operating system the Major Collision Unit might able to obtain, as we expect this will become a significant area of enquiry in matters concerning automated vehicles involved in serious collisions for both criminal investigations but also the cases we deal with, being civil claims for personal injury damages involving the TAC” said Ms Blond, Managing Director of Fortitude Legal.

    Your rights if injured

    As with all transport accidents, drivers, regardless of the technology of their cars, are insured for injury to others through the Transport Accident Commission.  The Transport Accident Scheme provides for compensation to those injured including:

     

    • Loss of earnings;
    • Medical and like expenses; and
    • Lump Sums of compensation which can be in the hundreds of thousands of dollars for those injured in negligent circumstances.

     

    Fortitude Legal is an Award winning law firm specialising in obtaining compensation for those injured in transport accidents.

     

    Contact us for a free, no obligation chat on 1300 020 618

     

    Injury involving an e-scooter?

    By Fortitude Legal Admin

    The Ballarat Trial

    With Ballarat being the first regional location to commence a 12-month trial of the shared electric or “e-scooter” in December 2021, it took as little as 3 days for issues to arise.  According to The Ballarat Courier, problems are emerging placing pedestrians and road users at risk.

    Following a rider crashing through a shop window while riding and e-scooter, The Ballarat Courier, on 22 December 2021, reported that Ballarat Health services are “collecting data” during the trial period.

    The trial works by allowing riders to book and use the e-scooters through the “Neuron Mobility App”.  Payment is dictated by which option you select.  A Driver’s Licence is not required.

    The trial proposes to restrict the e-scooters to bicycle lanes, bicycle paths, separated and shared paths and roads with a maximum speed of 50kph (the e-scooters however are limited to travel at 20kph).  Riders breaching certain rules can face fines.

    Use of the e-scooters requires you to agree to “Terms of Service” and “Riding Rules” and failure to do so will likely cause the attached insurance to become invalid, but more on that below.

    Issues Arising

    Various reports have already emerged of people suffering injury as a result of their foray into riding e-scooters.  The Ballarat Courier recently reported that in other countries there have tragically been deaths.

    For our team at Fortitude Legal, as personal injury lawyers, we see injuries ranging from minor to catastrophic every day.  We see injuries occurring as a result of accidents involving cars, trucks, trains, trams and buses.  When you are injured in a “transport accident” as defined by the Transport Accident Act however, you may be entitled to compensation including loss of earnings, medical expenses and in some instances, lump sum compensation which can be significant.  This insurance is paid from motorists’ registration.

    There has been much debate in recent years regarding the coverage for cyclists under the transport accident scheme and whilst coverage for cyclists is still limited, our Principal Lawyer, Tom Burgoyne, was instrumental in having the law changed to expand the protection for cyclists injured on the roads, colloquially known as “Rory’s Law”.

    E-scooters are not included in the definition of “transport accident”.  What this means is that if a person sustains injury as either the rider of the e-scooter or a third party, they are not covered under the transport accident scheme (unless the accident also involves a vehicle that is covered by the Transport Accident Act).

    Insurance?

    So, if you are injured as a result of the use of an e-scooter, whether as a rider or otherwise, where does that leave you?

    Whilst e-scooters have attached, an insurance policy for personal accidents and personal liability (i.e.:  injury to others), we have had a look behind the policy’s terms and hold concerns about the value of the insurance and exposure to people injured as a result of the use of an e-scooter.  Of course, only time will tell.

    The company behind the e-scooters website states that their insurance includes “both personal accident and third-party liability cover to both Neuron riders and the broader community”.

    However, as with any insurance policy, there are exclusions to coverage dictated basically by the driver’s use of the e-scooter.  Those exclusions are contained in the “General Exclusions”, “Terms of Service” and “Riding Rules”.  In short, if the rider is in breach of matters included within those sections of the insurance, or any other relevant laws and bylaws applicable in the area in which they are riding, they will likely face an argument by the insurer that there is no coverage.

    Suffice to say, the exclusions are broad and include but are not limited to instances where the rider:

    • fails to wear a helmet while riding;
    • is under 16 years of age or 75 years or older;
    • is under the influence of alcohol or other drug while riding;
    • rides with deliberate recklessness;
    • rides with a passenger;
    • rides the e-scooter for commercial use;
    • rides an e-scooter not under their own account;
    • is carrying more than 10kg in total;
    • is not wearing covered footwear;
    • is carrying items that are considered to impede their ability to safely operate the e-scooter;
    • is using headphones, earphones, earbuds, a headset or other listening device while riding; or
    • is riding in adverse weather conditions.

    Whilst they are arguably choices made by the rider, the potential lack of insurance not only impacts them personally, but anyone they may injure when riding the e-scooter, for they may not be insured for third-party liability.

    Curiously, the terms suggest that a rider “should give consideration to obtaining [their] own insurance”.  In some instances, a person may be covered under their Home & Contents insurance policy if they negligently cause injury to another, but once again, that is not always the case.

    The Upside

    On the upside, there is at least a policy of insurance attached to these e-scooters and providing no exclusion clause is activated, the Policy provides cover to a person injured including but not limited to:

    • Weekly injury benefits where a person is suffering from temporary total or partial disablement affecting their ability to work;
    • Death and capital benefits for permanent injuries;
    • Benefits for broken bones;
    • Cover for personal legal liability should you injure a third party and they lodge a claim against you for their injury or property damage, including legal costs (subject to conditions);
    • Accommodation and transport expenses;
    • Childcare;
    • Medical expenses;

    …and various other expenses.

    According to the City of Ballarat website riders are “covered” by Neuron Mobility’s third-party rider liability insurance that “protects and reassure[s] riders as well as the wider community”.  Only time will tell whether Neuron’s insurer seeks to rely on the exclusion clauses when claims are made.

    If you or someone you know has sustained injury and/or financial loss connected with an e-scooter where you were not at fault, please call us for a no obligation chat.

    At Fortitude Legal – We’re In Your corner!

    What do I do when TAC advise me of my eligibility for common law compensation?

    By Fortitude Legal Admin

    What does it mean if the TAC advise me I’m eligible for common law compensation?

    If you have received a letter from the TAC notifying you of your eligibility to apply for common law compensation, the TAC has done what is known as proactively granting you a serious injury certificate.

    One of the functions of the TAC is to pay compensation to people injured in transport accidents, whether they’re the driver of a vehicle, or someone injured by another driver including pedestrians and cyclists. To be eligible for common law compensation you need to satisfy a threshold level of injury (serious injury) and prove that someone else was at fault in causing your accident.

    Previously, you would have to apply for a serious injury certificate which can be a long and complex process and almost always requires legal assistance.  Recent changes have led the TAC to proactively review files of some injured people before such application is formally made and, where the TAC is satisfied that you meet the serious injury threshold and your injury was caused by someone else, the TAC grant the serious injury certificate without the need for application.

    Included with the letter advising you of your eligibility to receive compensation is a serious injury certificate, meaning you are now able to bring a claim for common law compensation which may include compensation for pain and suffering, loss of earnings and loss of earning capacity. The assessment of compensation can be a complicated process and requires expert legal insight.   Claims for pain and suffering damages cannot exceed the statutory maximum figure which is currently $577,280.  Claims for economic loss cannot exceed the statutory maximum figure of $1,298,980.

    Typically, a claim for common law damages will not finalise your right to ongoing support from the TAC to medical and like expenses and as such, these benefits do not comprise part of a common law claim.

    What should I do now that I have been notified by the TAC that I have a serious injury and that I am eligible for common law compensation?

    As advised in the TAC’s letter, you should now engage a personal injury lawyer to negotiate with the TAC.

    At Fortitude Legal our award-winning team are accredited specialists in personal injury law with a focus on obtaining compensation for people injured in transport accidents, like you.  It is not a given that the TAC will pay you your maximum entitlement.  What you are paid depends upon the material presented to them to outline the nature and extent of your injuries and loss.  That’s where our team at Fortitude Legal will work with you to ensure you get your maximum entitlement to compensation in the quickest time.

    At Fortitude Legal we operate within the TAC Common Law Protocols.  The Protocols are an agreement that outlines how the TAC and our lawyers work together during the negotiation of your claim and they more often than not, ensure a swift resolution of your claim for compensation without the need to go to Court, thus getting the compensation in your hands sooner.

    Even though the compensation payable by the TAC in a damages claim is often very substantial, it does not mean that the costs payable by you from your compensation will be.  It some instances no costs whatsoever will be payable by you from the agreed sum awarded by the TAC for compensation if you engage Fortitude Legal.  Not all law firms in this area will be willing to look after you in this way.

    Call us for a free no obligation chat on 1300 020 618.

    At Fortitude Legal – We’re In Your Corner!