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Death claims and the TAC

Feature Articles

Cite as: (2003) 77(10) LIJ, p.56

Should a death arise from a transport accident, the Transport Accident Commission may be required to pay various benefits.

By Geraldine Collins

The Transport Accident Commission (TAC) may be liable for a number of statutory “no fault” benefits if a death arises from a transport accident. These benefits include the reasonable costs of the burial or cremation, a lump sum to a surviving partner, periodic payments to a surviving partner, a lump sum, periodic payments and education allowance to dependant children and the potential for a common law claim brought under the Wrongs Act 1958 for dependants. Further, the benefits of a person currently a TAC claimant will be affected by the subsequent death of that person.

Burial or cremation expenses

Section 60(2A)(b) of the Transport Accident Act 1986 (TAA) provides that the TAC is required to pay the “reasonable costs” incurred in Australia of burial or cremation. The amount to be paid by the TAC is to be assessed as at the date of death. If the deceased is an overseas visitor the TAC will fund the reasonable costs of the service in Australia and the reasonable costs of airfreight home. If the deceased is a permanent resident in Australia the TAC will not fund airfreight to transport the body to another country. The TAC will give consideration to funding the costs for collection of a body from interstate or an area outside the normal area of business.

A burial or cremation service is made up of different components. The total cost of each component will vary. The TAC is required to look at each component and pay the “reasonable” costs of same. The TAC’s approach is governed by its policies. It states it will consider the total cost of the entire service and the individual cost of each item within the service. However, it is the total overall cost which must be considered reasonable. Therefore, if one component is slightly more expensive and another component is slightly less expensive, the TAC should not penalise the family provided the overall cost is reasonable.

The leading case to examine the issue was Vaiani, Guarino, Keachie, Provenzano & Kendall v Transport Accident Commission of the (then) Administrative Appeals Tribunal (AAT). A decision was handed down by Ms Preuss on 8 March 1995. Ms Preuss held that the AAT should have regard to the particular circumstances before it, but not to raise the cost of the burial out of all proportion to the cost of burials in the rest of the community.

The TAC is required to fund burial or cremation costs if the deceased committed suicide as a result of a transport accident which occurred before 1 January 1995. If the transport accident occurred subsequent to that date the TAC is not liable for such costs.

The TAC’s own “Funeral and dependency benefits” brochure states there is a “maximum” sum of $6177 payable, as of 1 July 2003. The TAC states this figure has been arrived at in consultation with the Australian Funeral Directors Association. However, in the recent matter of Gougouginnis v Transport Accident Commission,[1] the Victorian Civil and Administrative Tribunal Act (VCAT Act) s49 statement provided “there is no documentation available in relation to the assessment of reasonable funeral costs”.

Practitioners must be aware that there is no statutory maximum. Each case must be regarded individually. It is possible to obtain a greater contribution from the TAC for the costs of the service than initially put forward by the TAC.

Counselling expenses

Section 60(2A)(a) of the TAA provides that the TAC is required to pay the reasonable costs of family counselling services provided to the family members of a deceased, as long as the counselling services are provided by a registered medical practitioner or registered psychologist. A “family member” is defined as a partner, parent, sibling or child of the deceased.

The entire cost of the service is subject to a statutory maximum. The amount is indexed annually and, as of 1 July 2003, is not to exceed $1880.

Liability is incurred for the family counselling service received on or after 1 January 2001 provided the accident resulting in the death occurred on or after 1 January 1995.

Surviving partner lump sum

Section 57 of the TAA provides that the TAC must pay a lump sum “death benefit” to the surviving partner of a person killed as a result of a transport accident. It does not have to be the sole cause of the death; it need only contribute to the death or contribute to the acceleration of the death.[2]

The Statute Law Amendment (Relationships) Act 2001 has vital implications for the operation of s57. Before its implementation, s57 benefits were payable only to a “surviving spouse”. A “spouse” could only be a married person or a partner in a domestic relationship with a member of the opposite sex.

For accidents that occur on or after 23 August 2001 the TAC is to have regard to genuine domestic relationships, irrespective of gender.

The lump sum is subject to a statutory maximum, indexed annually which, as of 1 July 2003, is $129,470.

A “surviving partner” is defined a “dependant partner”.

A “dependant partner” is defined as being wholly, mainly or partly financially dependant on the deceased, or wholly dependant on the deceased for the care of their children or the children of the deceased.

The “death benefit” lump sum payable as a result of dependence for childcare is payable only for accidents which occur on or after 7 December 2000.

Importantly, the deceased does not have to be “an earner” in accordance with the TAA for the benefit to be payable.

If there is more than one surviving partner at the date of the death, the lump sum is paid proportionately to each surviving partner. The formula for the distribution is within s57(3).

Surviving partner – periodic payments

Should a deceased qualify as “an earner” as defined within the TAA, then s58 allows for periodic payments to be made to the surviving partner. It is necessary for the deceased to be “an earner” as the payments represent compensation for loss of financial support.

Again, this section was affected by the introduction of the Statute Law Amendment (Relationships) Act 2001. For accidents before 21 August 2001 benefits are payable only to the deceased’s “spouse”.

The weekly payments are calculated according to the deceased’s assessed earnings, being the amount it was expected the deceased would have earned in the 12 months subsequent to the transport accident. It is necessary to take into account the deceased’s training, skills and experience: s58(6). There is a statutory maximum, indexed annually which, as of 1 July 2003, is $837.

The periodic payments continue for five years after the death of the earner. However, if the surviving partner has dependant children the payments continue until the child is no longer dependant (either 16 years of age or below 25-years-old if the child is a full-time student.) Periodic payments cease if there is a common law settlement.

Dependant children

Section 59 contains three types of benefits which may be payable to the dependant children of the deceased. To be eligible, the child must be under 16 years of age, or under 25 years of age if a full-time student and cannot be married or have a domestic partner. In addition, the child must be financially dependant on the deceased or there must be a reasonable expectation of the financial dependency of the child. The child must not be supported by the surviving partner of the deceased.

The first type of entitlement is a lump sum payment. This is subject to a statutory maximum, currently $129,470 as of 1 July 2003, and indexed annually. If there is more than one dependant child, the payment is equally divided between the children. If there are dependant children (not dependant on the surviving partner) and a surviving partner/s, the lump sum is divided between the parties. Half the lump sum is payable to the surviving partner (or proportionately divided between them if more than one) and half is payable to the child, to be divided equally between them if more than one. If the dependant child is under 18 years of age, the money is paid to the State Trustees on behalf of the child. Should the child die before turning 18 years of age that payment is to be refunded to the TAC.

The second benefit is a weekly payment, indexed annually. As of 1 July 2003, the amount payable is $115.

The third benefit is an untaxable annual educational allowance, indexed annually. As of 1 July 2003, the amount payable is $2070. This is paid until the child turns 16 years of age but will continue until the child reaches 18 years of age if the child remains a full-time student.

The periodic payments and educational allowance are paid to the guardian of the child, for the child’s benefit and will continue regardless of whether the child’s parent or guardian later commences financial support of the child.

The TAC will not make payment of a lump sum, periodic benefits or an education allowance if the dependant’s child parent has received a payment under s57 of the Transport Accident Act. Further, payments will cease if there is a common law settlement on behalf of the dependant children.

Common law

A common law claim for damages, assessed for the loss of financial support, can be brought by the surviving dependants of the deceased. Such a claim is made under Part 3 of the Wrongs Act, which enables proceedings to be brought for a wrongful act or negligence causing death. The plaintiff/s must establish a financial dependency on the deceased. Obviously, there must be negligence found against another person, apart from the deceased. However, the common law settlement is not reduced by any proportion of contributory negligence established against the deceased. Provided any portion of liability can be found against a third party, the plaintiff/s will recover 100 per cent of the assessed damages.

Any award of damages must be reduced by any payments made by the TAC under ss57, 58 and/or 59 of the TAA. These entitlements cease on the conclusion of the common law claim.

If the transport accident occurred before 1 January 1995, the damages may include an allowance for the costs of services in the nature of housekeeping or care of a child. By virtue of s93(12A), common law claims arising from accidents occurring on or after that date are precluded from including a claim for such a head of damages.

Damages are claimable for a suicidal death, provided the transport accident has caused or contributed to the suicide.

When assessing damages, it is necessary to establish the expected future earnings of the deceased, and the degree of financial support the plaintiff/s would have expected. Future economic loss is to be discounted by 6 per cent.

Once a Wrongs Act claim has been brought, the entire claim for financial support is concluded. It is therefore vital to ensure all parties with a loss of financial support are included in the action as plaintiffs.

Effects of death on a TAC claimant

A current TAC claimant may have an entitlement to any of the “no fault” benefits, or to a common law claim. The subsequent death of the person will impact on the entitlements available for the estate. The death may be totally unconnected to the transport accident or be caused or contributed to by the transport accident injuries.

Sections 44, 45, 49 and 50
Provided the deceased had an entitlement to receive either ss44 or 45 (loss of earnings and partial loss of earnings) benefits, and/or to receive either ss49 or 50 (loss of earning capacity and partial loss of earning capacity) benefits, the TAC must pay to the deceased’s estate any outstanding benefits up to the date of the death. Death extinguishes the entitlement. If the death was caused or contributed to by the transport accident injuries, any dependants may then have an entitlement to receive benefits payable under ss57, 58 and/or 59.

Sections 47, 48 and 54
Provided a period of at least 18 months has passed since the date of the transport accident, the transport accident injuries are considered stable and there is medical information to enable an assessment of impairment to be made, the TAC is required to pay to the estate of a deceased any monies owed under s47 (impairment lump sum).

Any such payment must be deducted from a subsequent payment made under s57.

If the injured person has brought an application to the Victorian Civil and Administrative Tribunal, seeking review of the TAC’s decision of the level of impairment and the person dies before the conclusion of the appeal, the estate is entitled to pursue the claim. Therefore, the statutory right to review a decision of the TAC survives the death of the person.[3]

If there is an entitlement to an annuity benefit (s48), the TAC must pay to the deceased’s estate any outstanding entitlement up to the date of death on which the entitlement is extinguished.

If an injured minor has an entitlement to a minor’s benefit (s54), the TAC must pay to the minor’s estate any outstanding amount, if any, up to the date of the death.

Section 60
The TAC is liable for payment of the medical and like expenses (s60) incurred as a result of the transport accident injuries, regardless as to whether the death was caused or contributed to by the transport accident. Liability extends to the date of death. Any claim for reimbursement of expenses must be made to the TAC within two years of the date of provision of the service.

Survival of common law claims after the death of the injured person

An injured person’s right to bring a common law claim for damages is restricted by s93 of the TAA. It is necessary to pass through the “gateway” of s93 of having an assessed level of impairment of at least 30 per cent of the whole person or be granted a “serious injury certificate” (either by the TAC or by the court) to bring a common law claim.

If an injured person dies subsequent to the transport accident (regardless whether the death is related to the transport accident injuries or not) and had passed through the s93 “gateway” before death, the estate is entitled to pursue the common law claim. However, if the requirements of s93 have not been satisfied any potential common law claim is extinguished on the death of the TAC claimant.[4]

Provided s93 has been satisfied, inevitably, the quantum of the claim will be reduced substantially; effectively the damages are claimable only for a definable period of time.

If the death is not related to the transport accident injuries, the damages may be awarded for the past economic loss and the past general damages of the deceased.

If the death is related to the transport accident, damages may be awarded for the past economic loss and the future economic loss of the deceased, but for the death. General damages are claimable until the time of the death.

GERALDINE COLLINS is a senior associate with Maurice Blackburn Cashman. Since mid-1993, she has practised almost exclusively in the field of transport accident claims and is an LIV accredited specialist in personal injury law. She is a member of the Victorian Executive of the Australian Plaintiff Lawyers Association, the LIV Litigation Lawyers Transport Accident Committee and the LIV-TAC Liaison Committee.

[1] G344/2002, Victorian Civil and Administrative Tribunal.

[2] Rowe v Transport Accident Commission, Administrative Appeals Tribunal of Victoria, 1995/27771.

[3] Brown v Transport Accident Commission [1997] 12 VAR 130.

[4] Swannell and Transport Accident Commission v Farmer, Supreme Court of Victoria Court of Appeal, no 7772 of 1996.


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