1 Transport Accident Act
Statutory compensation – nervous shock
Pursuant to section 3 and Solity, nervous shock is a normal eligibility question. As such, people who witness an accident or immediate after math are entitled to statutory compensation as long as other provisions are satisfied as per s 35(1).
Assuming other person had a transport accident. [NERVOUS SHOCK PERSON] will be entitled because of a result of that transport accident he suffered nervous shock.
Nervous shock also extended to people directly involved.
S 93(2A) limits the right to recover damages for nervous shock for person who did not witness – driver
commit suicide or
at fault
however it does not limit eligibility for statutory compensation.
So if parent child in accident and they are not at fault can recover
Nominal defendant for unidentified or un-indemnified vehicles, s 96 Person failed to pay TAC charge/have no money.
Hit and run accident.
Pursuant to s 96, can recover amount against TA – normal requirements to be met
Transport Accident Act
[DEPENDANT] is entitled to compensation if [DEAD PERSON] would/was have been entitled to compensation: s 35(2)
Entitlement
[INJURED] will be entitled to compensation under TA Act if he establishes the 4 requirements as per TA Act s 35(1).
1. Accident occurred after 1 January 1987 Here, this is satisfied: s 34; 35
2. Time Limits s 68
Pursuant to section 68(1), [INJURED] needs to make claim within 1 year – need more facts
this claim will not be time limit bared.
Need more facts
The injured person has 1 year from the date of the accident, or from the date the injury ‘first manifested itself’ to bring a claim: s 68(1).
Or within 3 years of this date if the TAC considers that there are
‘reasonable grounds for delay’: s 68(2).
TAC has no discretion beyond this 3-year period: TAC v Locastro.
3. Connected to Victoria
Here, the accident occurred in Victoria thus s 35(1)(a) is satisfied
Here, the accident occurred outside of Victoria, but pursuant to s 35(1)(b) the motor vehicle was registered as per s 3(1) and at the time of the accident
[INJURED] was a resident of Victoria; or,
[INJURED] was a driver/passenger of the motor vehicle Thus, satisfying the element
Outside Vic
Registered Victorian vehicle covered if people driving/passenger
Non registered Victorian vehicle only covered if people resident in Victoria
Registered motor vehicle defined in s 3(1) as a motor vehicle registered under RS Act 1986 (Vic).
(If this has not occurred)
However, pursuant to section 3(1)(b) the motor vehicle will be registered because it is vehicle usually kept in Victoria and should have been registered under law: see TAC v Odey
Note: If registered in other state it is excluded
If does not meet above
Section 36: Entitled to compensation if the Commission is satisfied that that person was, on that date, likely to reside in Victoria for not less than six months immediately after that date.
If person has right to claim outside Vic (another state, not cth legislation: McClurg v TAC):
They are not entitled to compensation under TA act: s 42(2)
4. [INJURED] Injured: s 35(1)
Injured has similar meaning as Injury in s 3: Gannon v TAC As such, [INJURED]’s
[WHAT WAS THE PHYSICAL INJURY?] is within the definition of section 3.
[WHAT WAS THE MENTAL INJURY?] is within the definition of section 3.
May be not caused by driving e.g. stroke
Just state what mental disorder is.
Could also be a scar
5. Transport Accident?
(a) Incident: s 3
Pursuant to Porter v Bonojero, the injuries were caused by discernable (apparent) incident.
Namely
[WHAT HAPPENED/BRIEFLY WHAT EVENTS LED TO PERSON BEING INJURED – E.g. vehicle slammed into a pole/ moving of truck and slipping of blade
Do not state it caused an injury]:
Incident is ‘a discernible event’, ie one or more temporally proximate events, not several identifiably distinct events: Porter v Bonojero
‘Incident’ needs to be distinct from ‘injury’, ie a consequential nexus between incident and injury. The incident and injury cannot be the same: De Bon (ventricular arrhythmia was both incident and injury); Fabrizio v TAC
De Bon: The incident must be separate and distinct from the injury and there must be a consequential nexus between them. – it was the stroke that killed him
Note: could cut head after stroke – need to draw distinction
So: Driving - stroke (does not satisfy this) – car comes to stop cuts head (this incident satisfies this) – if dies or has same injury before car stops no entitlement.
Here, pursuant to section 3(1A)(?), an incident occurred by way of involving Includes incidents:
(a) involving a motor vehicle, a railway train or a tram which is out of control; (truck rolling down hill)
(b) involving a collision between a pedal cycle and an open or opening door of a motor vehicle;
(c) involving a collision between a pedal cycle and a motor vehicle while the cyclist is travelling to or from his or her place of employment;
(d) involving the opening or closing of a door of a bus, tram or railway train.
(b) Incident and Injury directly caused by the driving of a vehicle?: s 3 Driving
Pursuant to ICWA v Container, [INJURED] must have had actual control and management of the vehicle while it was in locomotion. Here, [INJURED] was operating the controls of the [VEHICLE]
by [WHAT WAS DONE TO MAKE CAR MOVE? E.g. accelerating]
and sitting in the drivers seat at the time of the incident.
Thus, this will constitute driving Treloar; Koutroulis; ICWA.
This is notwithstanding it was operated accidently: Treloar
Pursuant to Treloar, putting a vehicle in park constitutes driving of a vehicle, accordingly [INJURED]’s failure to put the hand break on constitutes driving.
TAC v Treloar:
‘some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven’: (re Pedersen, bus driven to and parked at an inappropriate place).
Failure to put car in park is driving ICWA v Container:
Activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls - preparing to start, starting,
accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off
Koutroulis
‘those steps undertaken by the driver which concern the propulsion or movement of the vehicle’
Not driving:
Sim v TAC: harvester was independent of driving of tractor
Jewell: car in gear and jump started car and crushed him – failed also
Directly Caused by
This is a question of ‘degree’: lacuone
A direct or proximate relationship of cause and effect is required: Treloar; lacuone.
Here the cause was
The engine being on and [WHAT WAS DONE TO MAKE CAR MOVE? E.g. accelerating] which caused the car to [RE STATE INCIDENT as above]
And effect was
[INJURED]’s [injury]
Furthermore, there is no break in the casual link, a requisite degree of proximity still exists.
Consider intervening acts
o Notwithstanding the intervening act of… : Treloar; Iacuone v TAC.
Iacuone v TAC: walking on broken glass after transport accident did not break causal chain
Driving must directly cause both the incident and the injury, but there may be other direct causes as well.
Requisite degree of proximity or immediacy required to satisfy the test existed notwithstanding time interval and intervening acts
(c) motor vehicle
Motor vehicle in TA Act s 3(1) is the same meaning in Road Safety Act s 3(1)
Definition of ‘motor vehicle’ includes ‘a recreational vehicle’, which is defined in s 3(1) to include ‘motor cycle’ and motor tractor
Does not include tricycle with motor
does not include wheelchair less than 10kph
Does not include a vehicle intended to be used on railway/tramway
1. Propelled by a [combustion/electric/other] engine that forms part of the vehicle - satisfied a) An area that divides a road
b) A footpath or nature strip adjacent to a road
c) An area that is open to the public and is designated for use by cyclists or animals
d) An area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles
e) (unless declared not but still can be?) 2. Highway
The issue is: was the vehicle used or intended for use on a highway?: s 3(1) TA Act/RS Act Newton establishes two tests:
Test 1 objective – does it look like it?:
Objectively: would a reasonable person regard it as intended for use on a highway? A reasonable person would conclude that the [VEHICLE] was/wasn’t intended for use on a highway considering
o What characteristics point to it being a vehicle for use on a highway?: Ball; Smith
What is it designed to do?
Factors pointing to the contrary?
Workplace Injury Rehabilitation and Compensation Act
[INJURED]’s ‘injury’ occurred after the 1st of July 2014. Thus, WIRC Act applies.
Entitlement according to s 39(1)
1. Is [INJURED] a worker as defined in s 3?: s 39(1)
At common law this is determined according to indicia: Stevens v Brobib a) Common law employee:
Indicia indicating [INJURED] is an employee
India indicating [INJURED] is carrying on a business of his own
Answer yes = employee
Worker receive sick/paid leave
Is tax deducted
o Superintends finances also
Control over the way work is performed o Told when to start, time to leave o Live on farm
o How much work to do
Incorporation – is the worker ‘integrated’ into the hirer’s organisation
Representation as part of the business – does the worker wear uniform/display hirer’s business
Detailed rules exist
Need owners consent to delegate work Answer yes = contractor
Does the worker supply and maintain any tools or equipment
(especially expensive)
Paid according to task completion rather than receiving wages time o i.e. how much work he does
Worker bear any risk/make any profit from job
Free to work for others at the same time
Is worker responsible for insuring against work-related injury
Does the contract describe the worker as a contractor o How many months/years
Invoicing for each job done
Person engaged as an agent for some service, which gives them considerable discretion
Can the worker delegate performance to others
If unlimited power, this has greatest weight because contract of
employment is personal service (otherwise it only suggests): Queensland Stations v FCT
Alternatively, if prohibition in contract, then this suggests employment:
Baker
Employer must deduct TAX ABN no TAX deducted – pay GST
o However, these do not necessarily display it’s legal content by virtue of its semantic meaning: Hollis v Vabu
Control test: indicates [INDEPENDENT CONTRACTOR/EMPLOYEE?]: Stevens Totality of relationship must be considered: Hollis; Stevens
Here common law suggests [INJURED] is a [INDEPENDENT CONTRACTOR/EMPLOYEE?]
b) Deemed worker
Under part 1 schedule 1 clause ?:
Contractors deemed to be employees Clause 9
There are 5 factors to consider:
1) Contract in place for provision of services for reward - satisfied: (1)(a)
2) The arrangement was not ancillary to the provision of materials or equipment to [EMPLOYER]: (1)(b)
o Principal object of contract to provide services not materials 3) [INJURED] does 80% of work himself: (1)(c)
o More facts required? Transport? – flying plane yes
4) 80% of [INJURED]’s income within a period of 12 months (6), must be derived from [EMPLOYER]: (1)(d)
However, pursuant to (2), if established independent contractor then (1) will not apply.
‘student’ undertaking work experience arrangement, etc, TAFE student in practical placement: clause 1(1)(a)-(e), and (g)
an apprentice: clause 1(1)(f)
work in a ‘declared training program’: clause 1(1)(g) and clause 2
an ‘employment program’ provided by the Authority: clause 3(a)
a door to door seller: clause 5
a timber contractor: clause 6
the driver of a vehicle carrying passengers for reward who drives the vehicle pursuant to a contract of bailment and pays for car: clause 7
driver carrying goods for reward: clause 8
a share farmer who is employed by contract by the owner of land where the share farmer is entitled to receive less than one third of the income derived from the land (whether by cash and or in kind) or is under the contract specified as entitled to compensation under the Act: clause 12
work for a religious body or organisation within a specified class that has been the subject of an order of the Governor in Council: clause 13
person employed by the Crown or any department ‘in all cases where this Act would apply if the employer were a private person’, including a minister, member of parliament, judge, and bail justice: clause 14
Volunteer not worker: Plumb v Wade
sporting contestants not workers. HOWEVER unless: clause 17.
1) a rider ‘in a horse race under the Rules of Racing of Racing Victoria’: clause 17(3)(a); or
2) a person who holds a licence etc to ride granted in accordance with the Rules of Racing of Racing Victoria (not being an apprentice or the owner or trainer of the horse) and who agrees to ‘do ride work on a horse’ etc: clause 17(3)(b); or
3) a rider in a horse or pony race or a driver in a harness race conducted ‘as part of a mixed sports gathering’ within the meaning of the Racing Act 1958 (Vic): clause 18
4) an ‘outworker’ within the meaning of the Outworkers (Improved Protection) Act 2003 (Vic): clause 19 5) a sailor: s 38
Specified by other acts as workers for the purposes of the WIRC Act.
jurors: Juries Act 2000 (Vic) ss 54-59.
registered or probationary members of the State Emergency Service engaged in specific emergency service work: Victoria State Emergency Service Act 2005 (Vic) s 47(1).
persons assisting a police officer, in the course of duty, at the officer’s request: Police Assistance Compensation Act 1968 (Vic) s 2(1).
prisoners or offenders subject to a corrections order or persons subject to a diversion order whilst performing a specific activity: Corrections Act 1986 (Vic) ss 104ZP(a), 104ZP(c), 104ZR.
volunteer working at a prison: Corrections Act 1986 s 104ZP(b).
2. Injury – PRIMARY physical
Here, [INJURED] has suffered a [WHAT IS THE INJURY] as defined by section 3 and required by s 39(1).
As such, a simple nexus is required with work: s 39(1)
Can be an internal injury (vomiting, infection, congenital cerebral thing): see Kavanagh v Commonwealth
Does not need to be external cause (because of work)
However, pursuant to s 56, secondary/consequential psychiatric impairment will not be considered.
2. Injury - Mental
Here, [INJURED] has suffered a [WHAT IS THE mental INJURY] as a result of?
as defined by section 3 and required by s 39(1) As such, a simple nexus is required with work: s 39(1)
2. Injury – Aggravation
[INJURED] suffered an aggravation of his pre-existing [INJURY]: s 3; s 39(1).
As such, he will need to prove nexus and his employment was a significant contributing factor: s 39(3)
2. Injury – Gradual Process
The [WHAT] is a gradual process injury: s 39(3). Accordingly,
S 39(3) requires that the injury be due to the nature of employment in which the worker was employed.
– No need to prove the injury arose out of or in the course of employment per s 39(1) o Just due to employment (see last)
Employment continued after 1 July 2014. Hence, WIRC Act applies.
2. Extended Injury - Heart Attack/Stroke Injury
Here, [INJURED] has suffered a [STROKE/HEART] INJURY: s 40(2); s 3(a)
As such, this requires a nexus with employment and employment to be a significant contributing factor.
