Sivanas, Shyla --- "Major Considerations for Minors Injured in Transport Accidents" [2021] PrecedentAULA 7; (2021) 162 Precedent 26

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MAJOR CONSIDERATIONS FOR MINORS INJURED IN TRANSPORT ACCIDENTS

By Shyla Sivanas

Representing children injured in transport accidents adds a further level of complexity to transport accident claims. While the thresholds and requirements for each jurisdiction are unique, the Victorian system, managed by the Transport Accident Commission (TAC),^[1] provides an example of the particular accommodations that need to be made for children who have been injured in transport accidents to ensure the best outcome for the injured child and their family.

Any individual who has been injured in a transport accident in Victoria is entitled to lodge a claim with the TAC. Where that individual is a child under the age of 18, there are additional factors that need to be considered to ensure the best outcome for the injured child. A comprehensive understanding of the further entitlements for injured children can significantly assist in alleviating the financial pressures on parents or guardians.

TAC CLAIM

Lodging a claim

From the outset, the Transport Accident Act 1986 (Vic) (the Act), which governs TAC claims, has different provisions for when a child needs to lodge a TAC claim compared to an adult. While it is important that a TAC claim is lodged for any injured child as soon as possible to ensure that funding can be obtained for their recovery, the Act recognises that children may fail to lodge a TAC claim soon after an accident, or may not have a capable guardian to do so on their behalf.

Adults who are injured only have one year from the date of the accident or injury to lodge a TAC claim, or three years if there are reasonable grounds for the delay.^[2] However, children under the age of 18 have until they turn 21 to lodge a TAC claim, which means that any injured child will have at least three years to lodge their TAC claim.^[3]

Entitlements for children

The central reason behind the TAC scheme is to facilitate an individual’s recovery from their injuries after an accident. Individuals with accepted TAC claims are entitled to payment of medical expenses, rehabilitation services and disability assistance, as long as the expenses are reasonable and are related to injuries caused by the accident.^[4]

Children are entitled to the same benefits as adults. However, the expansive nature of the types of expenses that can be covered by the TAC can really cater to a child’s unique needs during recovery.

In particular, an injured child will likely encounter challenges when returning to school. Prior to a return to school, TAC can arrange a program support group with the child’s parents, teachers and medical professionals to facilitate discussion of these challenges and develop a school program tailored to the child’s individual needs.^[5] Supports available from the TAC include funding for an integration aide in the classroom, the fees of repeating a school year, or funding for a tutor, which can all be considered reasonable expenses for the child’s rehabilitation. The TAC is also able to fund the transportation costs to and from school of a child and their guardian if the child is unable to travel to school by their usual means because of their injury.^[6]

Parents of a child who has suffered a severe injury can also consider applying for an individual funding agreement, which is a yearly lump sum payment of the TAC-funded expenses that a child may incur in the year.^[7] The funds can then be used for the payment of any of the services that are approved by the TAC. This can provide parents with further flexibility and autonomy when caring for an injured child in terms of choosing when they access particular services.

Assistance for the family

The Act acknowledges that where a child is injured, the entire family is impacted as well. As such, family members, particularly a child’s parents or guardians, are entitled to a few limited benefits under the scheme.

When an adult is admitted into hospital after an accident, the TAC will usually only pay for travel and accommodation expenses for their family to visit if they reside at least 100 kilometres from the hospital.^[8] However, where a dependent child is injured and admitted into hospital, the TAC will pay for reasonable travel and accommodation expenses for parents to visit their child regardless of where the parents reside.^[9]

It is understandable that many parents need to be by their child’s side during their time in hospital. As such, a sensible change was made to the Act in 2018 which allows parents to claim for loss of wages while they are visiting a dependent child in the hospital.^[10] However, unless acute financial hardship can be shown,^[11] parents are only able to claim their lost wages after the first five days off work.^[12] In addition, the amount of wages that will be reimbursed is currently subject to a cap of $286 daily^[13] and $10,650 in total.^[14]

A parent’s burden does not end when an injured child is discharged from hospital, as the responsibility then arises of caring for a child throughout their recovery. However, parents are not expected to bear the full weight of this responsibility. Parents can seek approval from the TAC to pay for reasonable attendant care and nursing services if required.^[15] Unfortunately, parents themselves will not be directly paid by the TAC for caring for their child. However, if a parent completes the necessary training to become an attendant carer, they can apply to the TAC to become an approved provider of attendant care and seek funding for care provided to their child.

Regardless, caring for a child can be draining on a parent and an exhausted parent can negatively affect a child’s rehabilitation. As such, funding for the reasonable cost of short-term respite care is also available for a severely injured child to allow parents a well-deserved break from time to time.

Where a child has suffered a severe injury, family members are also entitled to receive funding for individual counselling although the amount available is capped, currently at $17,190.^[16]

Wage entitlements

Any ‘earner’ who has been injured in an accident and is unable to perform their pre-injury duties is entitled to receive a ‘loss of earnings benefits’ payment of 80 per cent of their pre-accident earnings for the first 18 months after the accident.^[17]

Where a child is at least 15 years old and has worked for certain periods of time^[18] or entered into an arrangement to work before the accident, they can be considered an ‘earner’ under the Act and are entitled to receive these loss of earnings benefits.^[19]

From 18 months to three years after the accident, earners are entitled to receive a ‘loss of earning capacity benefit’ of 80 per cent of their net pre-accident earning capacity if they have suffered a loss of capacity to work.^[20]

For these loss of earning capacity benefits, the Act expands the definition of ‘earner’ to include children who were not earners at the time of the accident but have since turned 18 years old.^[21] They would then be entitled to receive these payments until they turn 21.^[22] As a child’s pre-accident earning capacity would be difficult to calculate, they would likely receive 80 per cent of the average weekly earnings of Victorian employees,^[23] which is currently $1,304.^[24]

Financial assistance for permanent injuries

The Act entitles anyone who has suffered a permanent injury to lodge a lump sum compensation claim, called an ‘impairment benefit’, for their permanent loss of function and adjustments to their lifestyle.^[25] It is a no-fault entitlement which means the accident does not have to be the fault of another party for a claim to be pursued. An individual would be entitled to a payment if the impairment from their permanent injuries was assessed at 11 per cent or more of their whole person by specially qualified independent medical examiners.^[26]

An adult is able to pursue this claim as soon as their injuries stabilise, meaning they are unlikely to substantially deteriorate or improve any further.^[27] However, with children who have suffered a permanent injury, the TAC is only able to finalise their impairment benefit once they are 18 years old.^[28]

To counteract the issues raised by this delay, the TAC scheme also includes an entitlement to a minor’s additional benefit.^[29] This benefit is only available to minors who are under 18 years old and were not ‘earners’ at the time of the accident (as discussed above).^[30]

Much like the impairment benefit, only minors whose injuries are assessed at 11 per cent or more of their whole person are entitled to this additional benefit. However, instead of a lump sum, it is a weekly payment that is made from 18 months after the date of the accident to the parent or guardian for the benefit of the minor.^[31] The payment is intended to assist with the additional difficulties of looking after an injured child and is payable until the child turns 18 years old.

The amount of the weekly payment received depends on the minor’s degree of impairment. For example, a 15 per cent impairment would attract a weekly payment of $30, whereas a 50 per cent impairment would attract a weekly payment of $100.^[32] It is vital to ensure that the minor’s first impairment assessment is correct as the TAC is not obligated to review the impairment assessment until the child turns 18 years old.

COMMON LAW CLAIM

The right to sue

A common law claim is limited to individuals who have suffered a ‘serious injury’ from a transport accident.^[33] A ‘serious injury’ is where an individual’s impairment has been assessed at 30 per cent or more, or they have suffered a long-term loss of a bodily function, a severe psychiatric disorder, severe scarring, or the loss of a foetus.^[34]

If an individual establishes that they have suffered a ‘serious injury’, they can bring an action for their pain and suffering and economic loss but they still need to show that another party was at fault for causing the accident.

Where children are injured in a transport accident, they have the right to issue court proceedings for their injuries before turning 24 years old.^[35] This is in contrast to where children have been injured in other negligent circumstances^[36] and are only afforded six years from the date of injury to issue a common law claim if they have a capable guardian.^[37]

Seeing as the TAC scheme provides minors with this extended period to pursue a common law claim, the question of when to commence proceedings becomes pivotal, particularly with very young children.

Each claim needs to be individually assessed but some questions to consider include:

• Are the child’s injuries likely to deteriorate further?

• Are the restrictions caused by the child’s injury not fully apparent because of the child’s young age?

• Is the child aware of their deprivation?^[38]

• Would delaying a common law claim for no significant benefit cause the family financial distress?

• Is there a competent adult who can act as the child’s litigation guardian?

When a child has been seriously injured but it is unclear how those injuries will impact their capacity to work due to the child’s age, an option that can be considered is to split the claim for ‘pain and suffering’ and ‘economic loss’, which the TAC has been willing to do. This will ease some financial pressures through the payment of the ‘pain and suffering’ component while still preserving the right of the child to pursue the ‘economic loss’ claim when they are older.

However, care must be taken not to be too hasty in resolving a child’s ‘pain and suffering’ claim because an inability to work is also an important factor that affects the loss of enjoyment of life, which is what the ‘pain and suffering’ component is intended to compensate. This decision is easier in unfortunate cases where a child has been catastrophically injured and as such would likely be seeking the statutory maximum for ‘pain and suffering’, which is currently $569,970.^[39]

Considerations for economic loss claims

The quantum of future economic loss for adults is generally assessed using an individual’s past earnings, work history prior to the accident, or the average earnings in their respective profession. This employment history rarely exists for an injured child which can make it difficult to quantify the lost earnings that a child will suffer.

While the default position can be to assume that the child would have earned the average weekly earnings of Victorian employees, it is necessary to investigate whether lost earnings above the average can be justified. One method is to examine the careers and earnings of the child’s parents and siblings, which could support an argument that the child had above average earning potential. School reports should also be obtained, as exceptional results can project a potential for an above average career path. In addition, detailed enquiries should be made with parents, teachers or friends of the child to determine if they had intentions of pursuing a particular career path, in which case the average for that particular profession should be claimed.

Another essential consideration is whether a common law economic loss claim should be pursued at all. Calculations need to be done as to whether the child is better off remaining on the ‘no-fault’ loss of earning entitlements as opposed to the lump sum common law claim.

This is because a child who is severely injured, and has been assessed at 50 per cent or more whole person impairment, is entitled to receive loss of earning capacity benefits from the TAC until retirement age. The rate at which these benefits would be paid is likely 80 per cent of average weekly earnings.^[40] However, the entitlement to these payments would cease if compensation was received for a common law economic loss claim.^[41]

At first blush, it seems that a common law claim would yield a better outcome, as the injured person would claim 100 per cent of average weekly earnings until retirement age. However, the economic loss sum claimed has to first be discounted by 6 per cent,^[42] and there will likely be a further discount for vicissitudes of life.

Moreover, pursuing an economic loss claim could be perilous if there are issues with contributory negligence or liability. For example, contributory negligence may be found in circumstances where a child has been struck when running across a street unexpectedly. There will then be a risk that the total amount claimed for economic loss would be reduced by the percentage of contributory negligence that has been found. In those circumstances, it may be safer to rely on the regular loss of earning capacity payments from the TAC as they are ‘no-fault’.

Approval of settlement

If a settlement is reached with regard to compensation for a common law claim prior to the child turning 18 years old, there are key safeguards in place to ensure the protection of the child’s rights and settlement monies.

First, any settlement reached with the TAC for a child’s injury is subject to the court’s approval through an approval of compromise to ensure that the settlement is fair and reasonable.^[43]

In order for the court to determine whether a settlement should be approved, it is crucial that all liability and quantum evidence is provided. An affidavit from the child’s solicitor is required and should exhibit all of the relevant medical reports and written advice from counsel as to the reasonableness of the settlement.^[44] An affidavit from the child’s litigation guardian that confirms their understanding of the finality of the settlement should also be provided.

The court will then undertake a careful consideration as to whether it is in the best interests of the child to approve the compromise. The court must be satisfied that the risk of obtaining a lesser sum by rejecting the offer outweighs the risk that the child could receive a greater sum by proceeding to court.^[45] While some may view this as a mere rubber stamping process, the court will not shy away from rejecting a proposed settlement if it is unreasonable, as was evident in Fisher v Martin.^[46] As such, applications for approvals of compromise need to be carefully prepared to ensure that the court understands the risks and reasoning behind the settlement.

Management of settlement money

If the settlement is approved, another safeguard comes into effect, as a child’s settlement money will be held and managed by the Senior Master’s Office of the Supreme Court^[47] to ensure that the money will not be exploited or used frivolously by any party. The settlement sum will generally be held there until the child turns 18 years old, unless a court orders otherwise.

During this time, guardians of the child are able to submit requests to the Senior Master for money to be released for various purposes. The Senior Master has discretion to release funds where the request benefits the child and the interests of the child are protected.^[48] Common examples of approved expenses are school fees, regular maintenance payments, computers, bicycles, or the purchase of a vehicle.

CONCLUSION

Assisting an injured child and their family is an extremely rewarding aspect of personal injury law, as it allows practitioners insight into the positive difference that having access to the right entitlements can make to a family. However, lawyers need to be mindful of avoiding the pitfalls of treating a child’s TAC claim like any other TAC claim – it is vital that additional considerations are taken into account to ensure that the best possible outcome is achieved for the child. After all, there is no question that anything that can be done to assist in the recovery, or semblance of a return to normalcy, of an injured child’s life after a transport accident should be done.

Shyla Sivanas is a solicitor at Adviceline Injury Lawyers with a strong focus on assisting clients injured in transport accidents. Shyla also practises in the areas of WorkCover, public liability and superannuation claims. PHONE [phone] EMAIL [e-mail].

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^[1] Transport Accident Act 1986 (Vic) (TAA), s35.

^[2] Ibid, s68.

^[3] Ibid, s68(3).

^[4] Ibid, s60.

^[5] State Government of Victoria, Transport Accident Commission, ‘TAC Information for families of children with injuries’ (Brochure, February 2013) <http://www.tac.vic.gov.au/clients/forms-and-brochures-clients/information-brochures/information-products-for-tac-clients/at-home-with-the-family-for-families-of-children-with-injuries/At-home-with-the-family-brochure.pdf> .

^[6] TAA, above note 1, s3.

^[7] Ibid, s61.

^[8] Ibid, s60(2D).

^[9] Ibid, s60(2C).

^[10] Ibid, s60(2CA).

^[11] Ibid, s60(2CD), as at July 2020.

^[12] Ibid, s60(2CB).

^[13] Ibid, s60(2CC), as at July 2020.

^[14] Ibid, s60(2CA).

^[15] Ibid, s60.

^[16] Ibid, s60(2A)(a), as at July 2020.

^[17] Ibid, s44.

^[18] Any time in the eight weeks before the accident, or a total of 13 weeks in the year before the accident, or a total of 26 weeks in the year before the accident.

^[19] TAA, above note 1, s3(2).

^[20] Ibid, s49.

^[21] Ibid, ss49(5) and 51.

^[22] Ibid, s53(3)(a).

^[23] Ibid, s49(5A).

^[24] As at May 2020; Australian Bureau of Statistics, ‘Average weekly earnings, Australia’ (August 2020) <https://www.abs.gov.au/statistics/labour/earnings-and-work-hours/average-weekly-earnings-australia/latest-release>.

^[25] Ibid, s47.

^[26] Ibid.

^[27] Ibid, s46A(1).

^[28] Ibid, s46A(1)(b).

^[29] Ibid, s54.

^[30] Ibid, s3.

^[31] Ibid, s54.

^[32] Ibid.

^[33] Ibid, s93.

^[34] Ibid, ss93(3) and (17).

^[35] Limitation of Actions Act 1958 (Vic) (LAA), s40.

^[36] Aside from transport accidents and workplace injuries.

^[37] LAA, above note 35, s27E.

^[38] See Hawkins v Lindsley (1974) 4 ALR 697.

^[39] As at July 2020; State Government of Victoria, Transport Accident Commission, ‘Indexation of benefits schedule’ <https://www.tac.vic.gov.au/clients/how-we-can-help/treatments-and-services/policies/supporting/indexation-of-benefits-schedule>.

^[40] TAA, above note 1, s49(5A).

^[41] Ibid, s54(2).

^[42] Ibid, s93(13).

^[43] County Court Civil Procedure Rules 2018 (CCCPA), reg 26.06.

^[44] Ibid, reg 15.08.

^[45] Rockman v IPR Nominees Pty Ltd (No. 2) [2018] VSC 270.

^[46] [2008] NSWSC 1357.

^[47] CCCPA, above note 43, reg 79 (also known as ‘funds in court’).

^[48] Funds in Court, Supreme Court of Victoria, ‘General information guide’ (Factsheet) <https://fundsincourt.vic.gov.au/wp-content/uploads/FIC-General-Information-Guide.pdf>.