Amendments to the Transport Accident Act 1986 following the commencement of the Road Safety Legislation Amendment Act 2022 .

On 6 July 2022, Part 3 of the Road Safety Legislation Amendment Act 2022 commenced. This Part of the Act makes a number of amendments to the Transport Accident Act 1986 (TA Act), which are intended to clarify the intent of the legislation, to increase the benefits available to TAC clients and their supporting family members, improve the operational efficiency of the scheme and to address a number of previous anomalies in the TA Act.

Immediate family members (grandchildren)

Grandchildren have now been included in the definition of ‘member of the immediate family’ in the TA Act for the purposes of accessing travel, accommodation and family counselling benefits.  Now, grandchildren will also be considered to be an immediate family member of a TAC client for the purposes of the TA Act, for all transport accidents that occur on or after 6 July 2022.

Increasing the age of dependent children

A child who is under 18 years old and is financially dependent on a person who dies because of a transport accident will now be a ‘dependent child’ for the purposes of providing dependency benefits under the TA Act, even if they are not a full time student or apprentice. Previously, to receive dependent child benefits the child would have either have been under 16 years old, or a full time student or apprentice up to age 25. This meant that children between the ages of 16 and 18 would sometimes not be eligible for dependency benefits. Going forward, all children under 18 years old who are financially dependent are able to access benefits. This change provides consistency with the Charter of Human Rights and Responsibilities Act 2006 (Victorian Charter) definition of a child as being under 18 years old. The Victorian Charter definition itself adopts the United Nations (UN) Convention on the Rights of the Child approach of children’s rights applying to all persons under 18 years old. Therefore, the change also brings the TA Act in line with the UN approach to the age of a child. The change will apply for all transport accidents on or after 6 July 2022.  View the surviving dependent child policy.

Subsequent transport accidents Loss of Earnings

If a client is involved in a subsequent transport accident that aggravates their injuries or causes a new injury while they are receiving Loss of Earnings (LOE) benefits from a prior transport accident, the TAC will now continue to pay amounts calculated pursuant to the pre-accident weekly earnings before the prior transport accident. Previously, TAC recalculated the amount payable to a generally lesser amount based on earnings at the time of the second transport accident. The change will apply for all subsequent transport accidents on or after 6 July 2022. The earlier transport accident does not need to have occurred on or after that date, so long as the subsequent transport accident occurred after that date. View the Loss of Earnings benefits Policy.

Loss of Earnings Capacity when Pre-Accident Earning Capacity cannot be determined

If a client who is entitled to Loss of Earnings Capacity (LOEC) payments has a pre-accident earning capacity that cannot be determined, they will now receive payments at 80% of the average weekly earnings of all employees for Victoria published by the Australian Bureau of Statistics. Prior to the amendment, the effect of the legislation was that they would receive 80% of 80% (equaling 64%) of Victorian Average weekly earnings. The change will apply for all transport accidents on or after 6 July 2022.  View the Loss of Earnings Capacity (LOEC) benefits policy.

Exclusions for dependents and other persons convicted of certain offences involving killing another person in a transport accident

The circumstances for which a person will be excluded from benefits (other than their ‘medical & like’ benefits covering their medical expenses if they were injured in the transport accident) under the TA Act have been expanded to more situations where a person is convicted of an offence of killing another person in a transport accident. Specifically, a person convicted of murder, manslaughter or child homicide under the Crimes Act 1958 (Crimes Act) in an incident involving a motor vehicle will now not be entitled to benefits under their own claim other than medical & like benefits under the TA Act. In addition to those offences, persons convicted of dangerous or culpable driving causing death under the Crimes Act in respect of their driving at the time of the transport accident will continue to be excluded in the same manner, as they were prior to the legislative change. View the Eligibility to benefits policy, the 'Blood Alcohol and Other Offences' section in the Loss of Earnings policy, Who is not eligible to receive LOEC benefits and the 'Who is not eligible for impairment benefits?' section in the Impairment Benefits policy.

Further to the above, dependent children and partners convicted of murder, manslaughter, or dangerous or culpable driving causing death in a transport accident where they killed their parent or partner will also be excluded from dependency benefits. The change will apply for all transport accidents on or after 6 July 2022. View the Who is not eligible to receive loss of earnings benefits policy for more information on circumstances where a person will not be excluded from certain benefits.

Retiring age

A person who is injured in a transport accident and is within 36 months of reaching the normal retiring age for their occupation or pension age who was earning at the time of their transport accident will now be eligible for weekly payments for a period of up to 36 months after their injury first manifests. Previously a person would have only been entitled to applicable weekly payments for a period of 12 months if they had attained the normal retiring age for their occupation or the pension age, or if they were within 12 months of attaining that age. The change will apply for all transport accidents on or after 6 July 2022. View the How long are LOEC benefits payable for? and How long are Loss of Earnings (LOE) benefits payable for? policies.

Payments where both of a dependent child’s parents die in the same transport accident

When both of a dependent child’s parents die in the same transport accident, they will now be eligible for dependency benefits inclusive of lump sum benefits, weekly benefits and education allowances to be paid in respect of both of the parents who died. Previously, children were only eligible for one set of payments, the same amount as if one parent had died, even if both of their parents died in the same transport accident. This is no longer the case and they will receive two sets of payments (one in respect of each parent who died in the transport accident). The change will apply for all transport accidents on or after 6 July 2022. View the Surviving Dependent Child policy.

Ensuring dependency benefits are paid to the most appropriate person

A responsible person receiving payments on behalf of a child receiving dependency benefits under the TA Act must now without delay notify the TAC when they stop having care of a child. Additionally, a person who becomes a responsible person for a child must also without delay notify the TAC when they become the responsible person for the child. The responsible person is a person who has care of the child, including daily care and control. These requirements help ensure that the TAC is making the payments to the right person on behalf of the child. The change will apply for all transport accidents on or after 6 July 2022.  View the Surviving Dependent Child policy.

Expanding common law indemnity for the benefit of cyclists injured in dooring accidents

Cyclists injured in dooring accidents now have an expanded right to pursue lump sum damages through common law indemnified by the TAC. Prior to the amendment, dooring accidents involving injuries caused by the collision of an open or opening door and a pedal cycle are already covered by the TAC’s ‘no-fault’ scheme prior to the accident and this is unchanged by the amendments.

However, in order to additionally pursue lump sum damages through ‘common law’ for serious injuries, injured cyclists previously needed to prove that the owner/driver was at fault for the accident. This is because if someone else opened the car door, such as a passenger who did not own the vehicle, the legislation did not allow the TAC to indemnify them since TAC could only indemnify owners and drivers of motor vehicles. TAC is now able to indemnify passengers and other persons to drivers and owners, but only for dooring accidents.

The cyclist will still need to meet and prove the other thresholds required to access common law damages, such as that they have a serious injury and that the person who opened the door was at-fault. However, the change means they will have the same rights regardless of who opened the door, and have a clearer pathway to pursue common law rights even if it was the passenger rather than the owner or driver who caused their injuries. The change will apply for all transport accidents on or after 6 July 2022. View the Claims for Common Law Damages policy.

Expanded TAC powers to prosecute fraud

The TAC now has the power to prosecute charges under the Crimes Act relating to fraudulent behaviour on claims. Prior to the change, the TAC could already prosecute offences relating to fraudulent claims behaviour under the TA Act. However, the expanded power to file charges under the Crimes Act provides the TAC with greater opportunity to ensure fraudulent behaviour is discouraged and can be prosecuted in a broader range of circumstances. Read more about TAC’s approach to Fraud and compliance.

Clarification and modernisation of TAC’s privacy obligations

The TAC’s privacy obligations and the circumstances to which disclosure can be made have been further clarified in the TA Act following the amendments. The changes ensure the circumstances of disclosure are more transparent for TAC clients and staff. The circumstances under which the TAC can disclose personal information are limited. Circumstances to disclose information include: to law enforcement agencies if there is a serious threat to an individual’s life, health, safety or welfare or of an offence against a law of the Commonwealth or another State or Territory relating to the payment of a benefit or compensation that involves fraud or dishonesty.

Pre 16/12/2004 Impairment Benefits annuity

A minor change to the TA Act has been made to ensure the approach relating to redemption of impairment benefit annuities to accidents before 16 December 2004 reflects current regulations. Read more about Impairment benefits payable for accidents prior to 1 September 2003 and accidents between 1 September 2003 and16 December 2004.

For more information contact the Policy team at policy@tac.vic.gov.au