Possible legal entitlements arising from personal injury

Crimes compensation claims

Where people are injured in a fire that was started by arson, they are entitled to help from the Victims of Crime Assistance Tribunal. It only needs to be established that it was likely the fire was started by arson. The arrest and conviction of an arsonist is not necessary for there to be an entitlement. If a person is either physically or mentally injured as a result of a crime, they may be eligible for compensation from the Tribunal as a ‘Primary Victim’. Such compensation may include:

• medical and counselling expenses
• expenses incurred through loss or damage to clothing worn at the time of the crime
• loss of earnings suffered after taking into account any sick leave, annual leave, WorkCover, Transport Accident Commission (TAC) or unemployment payments, up to a maximum of $20,000
• special financial assistance for pain and suffering up to a maximum of $10,000 in accordance with categories of injury outlined in the regulations
• in exceptional circumstances, other expenses necessary for recovery.

The maximum sum that can be awarded to Primary Victims of a crime is $60,000.

If a person dies as a result of a crime, their close family members could be eligible for compensation as ‘Related Victims’. Such Related Victims include the spouse, parent, guardian, step-parent, child, step-child, sibling, or step-sibling of a deceased person. It can also include a dependant of the deceased or someone who had an intimate personal relationship with them.

Related Victims are entitled to claim compensation for the following:

• funeral expenses
• medical and counselling expenses
• monetary assistance for the distress experienced
• money that the Related Victim was likely to receive from the deceased for up to two years after the death.

The maximum that one Related Victim can receive from the Tribunal is $50,000. There is a pool of $100,000 available from the Tribunal for all of the Related Victims of one deceased person.

To access these benefits, a Victims of Crime Assistance Tribunal Application form must be completed. The form can be downloaded from the Tribunal website at http/www.vocat.vic.gov.au under ‘Forms’. An application for assistance must be made within two years from the date of the crime.

Transport accident claims

The TAC can assist bushfire victims who suffered injury in a transport accident during the fires. The TAC can also provide compensation to the family members of a person who died in a transport accident in the fires.

Compensation for people injured in a transport accident

People injured in a transport accident include those who sustained physical and/or mental injuries in an incident directly caused by the driving of a motor vehicle. It also includes those who sustained a psychiatric illness as a result of witnessing the transport accident or the immediate aftermath of the accident. ‘Aftermath’ has been defined as the ‘immediate circumstances’ of the accident. This includes seeing the accident wreckage or viewing the scene directly after the accident.

People injured in a transport accident can access numerous TAC benefits, as outlined below.

Medical and like expenses

People injured in a transport accident are entitled to payment of hospital fees and most medical expenses. Payment of medical expenses for transport accident injuries continue as long as they are needed, provided they are reasonable and directly related to the transport accident. The reasonable travelling and accommodation expenses incurred by parents in visiting their injured dependant children in hospital are also payable.

Where assistance is required at home, the TAC may also provide for an attendant carer, a housekeeper, child-minding or nursing services. Modifications to the car or home and rehabilitation services, required because of the injury, can also be paid by the TAC.

Loss of earnings benefits

Where the injured person was an ‘earner’ before the accident or was about to start work, there may be an entitlement to payments for loss of earnings. The TAC can pay loss of earnings benefits from 5 days after the accident to 18 months after the accident at a rate of 80% of the person’s pre-accident weekly earnings.

The maximum that can be paid is $998 per week. The TAC, after accepting the claim, will make fortnightly payments from which it will deduct the appropriate amount of tax.

Loss of earning capacity benefits

After 18 months, a person who is still unfit for work is eligible for a payment of 80% of his or her net (after tax) pre-accident earnings. These payments are called loss of earning capacity benefits. Injured people who did not qualify for loss of earnings in the first 18 months may qualify for loss of earning capacity benefits if they are unable to work because of their injuries.

Where a person has a permanent impairment as a result of the injuries the Transport Accident scheme provides for the payment of a lump sum, as part compensation for pain and suffering, called an impairment benefit.

The amount payable is determined in accordance with a formula based upon the injured person’s level of impairment. The percentage impairment is determined according to the American Medical Association's Guides to Evaluation of Permanent Impairment, 4th Edition.

A request for an impairment benefit can be made at any time when the injuries are stable. Your solicitor requests the TAC to commence the impairment assessment process. A statement is prepared detailing the injuries and any relevant medical history. Medical and treatment information is obtained and appropriate independent medical examinations are arranged.

Adults are entitled to a payment if they have an impairment greater than 10%, in accordance with the Guides. Currently, the following amounts are payable:

The maximum payable is $289,960.

Serious injury

Where an injury sustained in a transport accident was caused by another person’s negligence, court action can be taken if the injured person has suffered a serious injury. A serious injury has been determined to mean:

• 30% impairment
• permanent or long term loss of a body function
• sevre mental or behavioural disorder
• scarring or disfigurement
• loss of a foetus.

If the TAC or a judge agrees that the injured person has a serious injury, a court can award the injured person compensation for both pain and suffering and economic loss into the future.

Compensation for family members of a person who died in a transport accident

The TAC provides extensive assistance to the family of a person who is killed as a result of a transport accident. These entitlements may include funeral benefits, payments to the dependent spouse or the children, home help, child care expenses and counselling for the family up to $5,320.

If the person killed was an earner and the spouse was at least partially dependent, a lump sum is payable. For a period of 5 years after the accident the surviving spouse will also be paid 80% of the previous wage or earnings of the deceased. In addition, a weekly benefit is paid for each dependent child to their guardian and an education allowance is also payable whilst the children are full time students. If both parents, or a sole parent, die in an accident, payment will be made for the orphaned children.

How to lodge a TAC claim form

Bushfire victims are encouraged to contact the TAC on 1800 332 556 (toll-free outside Melbourne) or 1300 654 329 to lodge a claim. There are TAC representatives at bushfire relief centres who can also assist with lodging a claim. A claim must be lodged with the TAC within one year of the date of the transport accident.

Work injury claims

If a person through their employment has suffered an injury, either physical or mental, because of the fires or the consequences of those fires, it may be possible to claim for entitlements under WorkCover.

For example, police officers, or telephonists in the emergency call centres may be affected by the work they performed during and after the fires. Also teachers of schools destroyed by fire, or with deceased pupils, may subsequently suffer a psychiatric reaction that makes it too emotionally difficult for them to return to employment, for the current time or in the future.

A WorkCover claim should be lodged as soon as possible. Claim forms can be obtained from a post office or the WorkSafe website. 

Once a claim has been accepted the worker is entitled to:

• payment of medical expenses. This includes the cost of seeing doctors, psychologists, pharmacy expenses, etc.
• weekly payments of compensation. The first 13 weeks are paid at 95% of pre-injury earnings and then it is reduced to 75%.
• a possible lump sum claim if the worker is left with a permanent impairment because of the injury.

CFA and SES volunteer entitlements

CFA volunteers who suffer injury as a consequence of their employment as a fire fighter or as an auxiliary volunteer are entitled to the same benefits that are paid to workers under the Accident Compensation Act. See the above information under 'Work injury claims'.

State Emergency Services volunteers are also entitled to benefits under the Accident Compensation Act. See the above information under ‘Work injury claims’.

Damages arising from negligence

If it is established that the fires were started and/or spread through negligence, or fault of a third party, there may be an entitlement to damages for personal injury or death.

For a personal injuries claim to be made for pain and suffering, the person suffering the injury must establish they suffer either:

• a permanent physical injury of more than 5% based on a whole person table of impairment; or
• a permanent psychiatric injury of more than 10%.

In cases where a person has died in the fires and left dependants, there may be a claim for the loss of benefits provided by the deceased to their dependant family members (such as for income loss or care costs)

There is a three year limitation period for adult people to commence such claims, six years in the case of children with competent parents.