1.3.2 TAC recoveries

1.3.2.1 Motor vehicle involvement | 1.3.2.2 When a police report is required | 1.3.2.3 TAC definitions | 1.3.2.4 TAC claim types | 1.3.2.5 TAC liability conditions | 1.3.2.6 Coding for transport accidents | 1.3.2.7 TAC no-fault recoveries

The TAC is liable to WorkSafe for claims involving:

  • motor vehicles (including trains and trams) on a no-fault basis for transport accidents
  • TAC-indemnified owners or drivers where fault can be shown
  • dual insurance claims.
AC s137
WIRC s367

TAC liability

The TAC may also be liable for:

  • incidents arising out of the use of a motor vehicle (e.g. loading or unloading a motor vehicle)
  • incidents involving out of control motor vehicles, trains or trams
  • incidents involving bicycles in certain circumstances.

See: TAC definitions

Sometimes claims lodged against the TAC and WorkSafe are rejected by both schemes concurrently. In nearly all cases, there is an entitlement under one scheme or the other.

Rejecting a claim involving a motor vehicle

Before rejecting a WorkSafe claim involving the use of a motor vehicle, the Agent should contact the TAC to establish:

  • whether the TAC has denied liability for a claim lodged with them
  • why the TAC has denied liability.
Seek agreement from TAC

Agents should seek an agreement with the TAC about whether the TAC or WorkSafe should accept the claim.

If attempts to reach agreement with the TAC fail, the Agent must immediately refer the matter to one of WorkSafe’s Senior Legal Counsel, Dispute Management Division.

It is critical that:

See: Receive a claim

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1.3.2.1 Motor vehicle involvement

In a limited number of claims, the potential for TAC recovery needs to be confirmed, and the Agent must assess the claim for evidence of an incident involving a motor vehicle, tram or train.

See: TAC definitions for definitions of ‘incident’ and ‘motor vehicle’ involvement.

When in doubt about the potential of motor vehicle involvement, Agents must consult WorkSafe.

Information provided on the Worker’s Injury Claim form, the Claim for Compensation Following a Work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment. Death form and the Employer’s Injury Claim form helps the Agent to determine the potential for recovery from the TAC.

See: Receive a claim

The sooner a motor vehicle involvement has been established the sooner:

  • police reports can be obtained
  • any required circumstance investigation can be instigated.

If the claim does not satisfy the criteria for no-fault recovery from the TAC, it may still be pursued with the TAC as a:

  • dual insurance claim
  • as a co-defendant in a negligent third party claim.

1.3.2.2 When a police report is required

Under the Road Safety Act 1986 accidents occurring in or about a motor vehicle are required to be reported to the police.

However, for the purposes of the Victorian workers' compensation legislation, a police report number is not required to be recorded for those accidents arising from the use of, not driving, a motor vehicle.

TAC will refuse to reimburse WorkSafe unless an incident is reported to the police or WorkSafe grant special authorisation.

AC s137
WIRC s367

When a police report is not required

A police report is not required if the accident:

  • has occurred on private property
  • arises from the driving of a tram or train.

For transport accidents caused by the driving of a train or tram, a report of the injury must be made to the operator of the rail or tram service.

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1.3.2.3 TAC definitions

There are a number of terms in the legislation and the TAC Act Transport Accident Act 1986 that are important in establishing liability in motor vehicle accident claims. These can be terms defined in the legislation or subsequently defined by regulation or case law.

The following are definitions, in the context of the TAC Act to assist Agents with interpreting legal definitions when assessing potential recovery.

For an injury or death to ‘arise out of the use of a motor vehicle’, there must be some physical connection with the motor vehicle and something about the motor vehicle that is a cause of the accident. For example, if the movement of a mobile crane’s boom causes an injury, the injury arises out of the use of the motor vehicle.

Caravans and the like may be registered but are not insured in their own right. They are not motor vehicles with their own motive power and indemnity by the TAC would depend upon the involvement of and/or attachment to a registered motor vehicle.

‘Directly caused by the driving Means there is a direct or close relationship of cause and effect, even if not the sole cause. There does not have to be collision or direct contact with the vehicle to cause injury. However, an injured claimant must have sufficient connection between the injury, the incident and the driving to prove that the driving directly caused the injury and the incident.’ means there is a direct or close relationship of cause and effect, even if driving is not the sole cause. There does not have to be collision or direct contact with the vehicle to cause injury. However, a worker must have sufficient connection between the injury, the incident and the driving to prove that the driving directly caused the injury and the incident.

‘Dual insurance’ exists where two policies provide indemnity at common law, for the one risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk.. For example, where the employer has failed to provide a safe system of work and was negligent as the owner of a motor vehicle.

Indemnity is provided to the employer by both:

  • WorkSafe – employer negligence through an unsafe system of work
  • TAC – employer/owner negligence arising from the use of the motor vehicle.

The injury does not have to be directly caused by a transport accident, tram or train – as is required for no-fault TAC recovery – but may arise out of the use of the vehicle.

The TAC does not recognise gradual process injury or disease as a transport accident.

See: Define an injury

It is important to prove that the owner or driver is the party responsible for the worker’s injury.

‘Driver’ includes a person in charge of a motor vehicle.

‘Owner’ includes a person who uses and possesses a motor vehicle under a finance agreement requiring registration in that person’s name. It does not include the legal owner under a finance agreement that does not have the registration possession and use of the motor vehicle.

‘Incident’ includes incidents involving:

  • out of control motor vehicles, trains or trams
  • the opening or closing of a door of a bus, tram or train
  • bicycles in certain circumstances.

A ‘motor vehicle’ is a vehicle used or intended for use on a highway and that is built to be propelled by a motor that forms part of the vehicle, not including a:

  • railway or tramway vehicle
  • motorised wheel-chair capable of not more than 10 kilometres per hour which is used solely for transporting an injured or disabled person
  • vehicle declared not a motor vehicle.

See: Road Safety Act 1986 - sections 3(1) & (2)(b)

A ‘motor vehicle’ (registerable) means:

  • a vehicle used or intended to be used, on a highway or public place
  • a vehicle with its own motive power (other than human or animal power)
  • not a vehicle intended to be used on a railway or tramway
  • not a motorised wheel chair
  • not a motor vehicle by declaration (pedal cycle fitted with small auxiliary motor/s with a combined power output of 200 watts or less, power assisted pedal cycle, a scooter propelled with small auxiliary motor/s with a combined power output of 200 watts or less and is capable of being propelled at a maximum speed of 10km/h and a self-propelled vehicle that is designed to be controlled by a person walking with the vehicle and has a maximum speed of 7 km/h)

The owner or anyone in charge of a trailer is insured against liability incurred by the death or injury of a person from the use of that trailer.

A ‘registered motor vehicle’ means a:

  • motor vehicle that is registered
  • motor vehicle that is not registered, usually kept in Victoria and is not exempt from registration
  • motor vehicle that is not registered and is exempt from registration
  • motor vehicle with a registration permit
  • registered recreational vehicle
  • Interstate Road Transport Act 1985 (Cth) registered vehicles.

A ‘transport accident’ is an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.

1.3.2.4 TAC claim types

Journey accidents after 30 November 1992

Accidents whilst travelling to or from in the following circumstances are not covered by Victorian worker's compensation legislation and should be lodged directly with the TAC:

AC s83
WIRC s46

Transport accidents occurring during a recess (provided the worker does not voluntarily subject themselves to any abnormal risk of injury) and while ‘travelling for the purpose of the worker’s employment’ are generally covered by WorkSafe. If the injury occurred during or after any substantial interruption or deviation happening for a reason unconnected with employment, the injury would not be covered.

AC s125
WIRC s92

A claim resulting from a transport accident within the meaning of the Transport Accident Act and deemed to have arisen out of or in the course of any employment is not subject to the excess.

Note: If the journey was in the course of employment and the injuries are caused in whole or part by the negligence of another driver, the compensation may be recoverable from the TAC.

AC s138
WIRC s72(9)

 

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No-fault transport accidents from 1 July 2000 onwards

For no-fault transport accidents from 1 July 2000 onwards, WorkSafe can recover from the TAC an amount equal to the total amount of compensation and damages paid for work-related or protected period transport accidents.

Dual insurance claims

These recoveries are conducted by WorkSafe and only apply in cases where proceedings for damages have been initiated. There is generally only scope for recovery from the TAC for work related injury in the limited circumstances of dual insurance, where the employer is the registered owner of the vehicle involved and is a negligent party.

Claims involving the TAC as the insurer of the vehicle owned by the employer are subject to a dual insurance protocol between WorkSafe and the TAC (under which contributions to dual insurance cases are usually resolved on a 50/50 basis towards the employer’s liability).

Railway trains and trams should be covered by a TAC insurance policy In this Act — workers compensation cover means insurance or registration required under a law of another State or of a Territory in respect of liability for statutory workers compensation under that law and may also be subject to dual insurance.

Accidents arising from the use but not the driving, of a registered vehicle will not be transport accidents but may be subject to dual insurance.

The legal identity of the employer and the owner of the registered vehicle must be the same or otherwise indemnity would be provided to two separate risks.

If it is difficult to distinguish between motor vehicle use accidents and driving accidents, these examples may assist:

  • Where accidents involve a static registered motor vehicle or involve its loading or unloading, such accidents will not usually be transport accidents but may be said to have arisen out of the use of the motor vehicle
  • Incidents arising out of the use of and arising out of the driving of a registered motor vehicle may attract dual insurance where the employer is also the driver or owner
  • The privatisation of public transport vehicles is a further complication. In determining whether dual insurance applies, it will be necessary to determine:
    • the operator of the service
    • ownership of any train, carriage, track or infrastructure.
TAC third party recoveries

These recoveries are conducted by WorkSafe. If a worker is injured or dies as a result of the negligence of a third party in an accident involving a motor vehicle, tram or train, the worker or dependants may be able to take common law action for damages against the third party.

WorkSafe can seek recovery against the TAC-indemnified negligent third party where the injury was caused or contributed to by a negligent act (including the failure to act) of that third party.

AC s138
WIRC s369

 

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1.3.2.5 TAC liability conditions

There are other conditions that affect TAC liability and recovery rights.

In cases involving unidentified or unindemnified vehicles, WorkSafe usually cannot recover against the nominal defendant.

Only a ‘natural person’ who can obtain judgment against the owner or driver may recover that judgment directly from the TAC if the identity of a vehicle cannot be established or it is not insured by the TAC (or elsewhere in Australia under the same sort of scheme). WorkSafe is not a ‘natural person’.

In contribution proceedings, an employer may proceed against the owner or driver of an unidentified or unindemnified vehicle.

See: Wrongs Act 1958

However, because of the specific wording in the legislation, WorkSafe would be successful in recovering compensation paid for transport accidents involving such vehicles.

AC s137
WIRC s367

The TAC insurance policy indemnifies the owner or driver of a motor vehicle for liability to pay damages at common law.

For dual insurance purposes, the owner or driver and the employer must be one and the same. It is not a dual insurance situation if the owner is Company A and the employer is Company B, although one may own the other or have common ownership or be subsidiaries or have some other connection.

The employer is not involved if an employee injures someone when negligently driving an employer’s motor vehicle and is sued by that person for damages. The negligent employee is indemnified by the insurance on the motor vehicle and the injured person must proceed under the TAC Act.

If the injured person is a co-worker, indemnity under the WorkCover insurance policy cannot be provided unless the employer is a defendant to the action.

1.3.2.6 Coding for transport accidents

The Agency Accident Code field must reflect the type of vehicle involved in the accident. Relevant motor vehicle codes are as follows:

Code Description
157 Cranes (this code is to be used for mobile cranes)
158 Forklift trucks
211 Self-propelled harvesters
212 Integrated mining plant *
213 Graders, dozers, snowploughs, scraping plant, bobcats
214 Excavators, backhoes, other digging plant
215 Front-end loader, log-handling plant, loading plant
216 Road rollers, compactors
217 Integrated road sealing equipment
218 Mobile garbage compactors
219 Other self-propelled plant
231 Tractors, agricultural or otherwise
232 Ploughs, harrow, cultivators *
238 Trailers, caravans *
239 Other mobile plant
241 Trucks, semi-trailers
242 Buses, trolley buses, minibuses
243 Cars, station wagons, vans, utilities
244 Motorcycles and sidecars, scooters, scooters, trail bikes
249 Other road transport
252 Locomotives
253 Rolling stock (non-motorised carriages and freight trucks)
254 Trains
259 Other rail transport (including trams)
* While technically not a 'vehicle', it has been included in this list because it may be attached to or form part
or a vehicle when the accident occurs. If this happens, it falls within the insurance cover provided under
the vehicle’s registration.
Accident type code

Where the accident was a direct result of a transport accident, the Accident Type Code must be coded as '92' - vehicle accident. Even if someone is hit by a car – and not actually driving the car – the code is still '92'. This code represents any accident that was caused by driving – despite who is actually doing the driving.

Motor vehicle involved code

The motor vehicle involved code reflects the responses provide in question 4 of the Worker’s claim form:

Code Description
A Driving of a motor vehicle
B Use (not driving) of a motor vehicle
C Train or tram involved

 

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1.3.2.7 TAC no-fault recoveries

Process

Follow these steps to manage TAC recoveries for motor vehicles registered in Victoria.

Step Agent action
Confirm if claim is a transport accident

Identify motor vehicle, tram or train involvement and verify particulars such as owner’s details and vehicle registration numbers.

Non-fatality claims

After a claim is lodged the Agent must:

  • code the claim and record relevant details
  • clarify information with the employer and/or the worker if required.

If the relevant details on the claim form are not complete, Agents may instigate a circumstance investigation, if appropriate. The Agent pays any recovery investigation costs incurred.

See: Receive a claim | Use of private investigators

If the claim is a transport accident, the Agent must:

  • examine the Worker’s Claim form to ascertain TAC recovery potential
  • identify if a motor vehicle, train or tram is involved in the incident.

The incident must then be reported to the police before the claim is accepted. If not, the claim is not a valid claim and is returned to the worker and employer requesting that the incident is reported to the police.

See: Recoveries prompt & checklist

Fatality claims

Where the claim is for the death of a worker, the Agent examines the Claim for Compensation Following a Work-related Death form to identify whether a motor vehicle, tram or train is involved in the incident.
Confirmation of police report

A police report is required before liability can be accepted for a transport accident claim.

When confirming if a police report has been made, there are three different procedures that may apply.

1. There is a police report

The Agent confirms that a police report has been made and liability can be accepted. WorkSafe will update police report numbers on ACCtion.

2. There is no police report

Where there is no police report, the claim is not a valid claim and is returned to the worker and employer requesting that they report the incident to the police. The Agent must then advise the worker to make a police report, even if it requires the worker to report the accident to the police after the event.

3. A Police report is not required

If a police report is not required, the Agent can request WorkSafe to grant a special authorisation.

See: When a police report is required

This request can be made only after the Agent has spoken with the worker and is satisfied that a police report is not required. A special authorisation may need to be granted if the accident occurred interstate or overseas and a police report number cannot be obtained. WorkSafe either grants or denies the request for special authorisation. The special authorisation will be updated by WorkSafe on ACCtion.

If WorkSafe:

  • grants the request, the Agent can accept liability
  • denies the request, the Agent must deny liability.

The police refuse to take a report

If the police refuse to take a report, the worker needs to provide details of the:

  • Station and Officer to whom the report was attempted to be made
  • Officer’s badge number and the date of refusal.

Inform WorkSafe’s Dispute Management Division. WorkSafe’s Dispute Management Division recoveries officer may liaise directly with the police in order to have the report recorded on the police database.

If the police make a report, the Agent can accept liability

WorkSafe will update ACCtion with the police report number details and advise the Agent.

WorkSafe identifies potential recovery claims WorkSafe uses the information coded by the Agent to pursue recovery against the TAC. WorkSafe extracts reports of potential recovery claims and sends these to Agents on a regular basis.
Agent forwards documentation to WorkSafe

When requested, the Agent provides WorkSafe with copies of claim forms and other relevant documentation within 10 working days of the request.

WorkSafe:

  • reviews the documentation received from the Agent
  • informs the Agent if further information is required.
WorkSafe negotiates TAC recovery

WorkSafe:

  • collates motor vehicle accident recovery claims against the TAC
  • enters the recovery estimate amount
  • processes TAC recoveries against each individual claim.

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