Published: 14 October 2019
Author: Stringer Clark

Transport injury TAC claims involving unidentified vehicles

What happens if you are seriously injured in a transport accident and the at fault party is unable to be identified?

Making a TAC claim

Anyone injured in a transport accident in Victoria is entitled to make a claim through the Transport Accident Commission (TAC), with some exceptions.[1] If the Police or Ambulance attended the scene of an accident, or you required hospitalisation, the TAC may have already been notified. If not, contact the TAC on 1330 654 329 to provide details about the accident and lodge your claim.

If you can, take as many details of the accident. For example, ensure you make notes on the location, circumstances and injuries that you suffered. Make sure that you note the date and time and details of all vehicles and individuals involved.

If you are in a transport accident which involves an unidentified vehicle, you are still entitled to lodge a TAC claim. Not knowing the identity of the vehicle does not preclude you from bringing a claim.

Making a claim regarding an unidentified vehicle

If you are in a transport accident involving an unidentified vehicle you must notify the TAC and provide as many details about the unknown driver. If you do not provide any details, the TAC may have a defence to your compensation claim under section 96(1) of the Transport Accident Act 1986 (‘the Act’).

Section 96 of the Act sets out certain requirements that must be undertaken if an individual is injured or dies as a result of a transport accident involving an unidentified vehicle.

The Act defines an “unidentified vehicle” as, “a vehicle which cannot be established as at the date of an accident, and which remains unidentified at least until the commencement of the proceedings”.

Under section 96(2) of the Act, damages can only be recovered if the individual bringing the claim gave notice of their intention to the TAC within a reasonable timeframe after they knew that the vehicle was unidentified. This needs to include the individual’s full name, address, date and place of the accident, nature of injuries and a statement of the circumstance of the accident.

TAC v Love case

The case of Love v TAC [2017] VSC 491 demonstrated how Plaintiffs ignore the requirement of section 96 at their peril. In that case, the Plaintiff (Mr Love) was injured in a transport accident on 15 August 2011 and suffered physical injury to his left leg and neuropathic pain, along with psychiatric injury, including post-traumatic stress disorder and severe adjustment disorder.

Mr Love was required to establish that on a balance of probabilities:

1. He was involved in a transport accident on 15 August 2011 with an unidentified vehicle;^[1]
2. He could not establish the identity of the vehicle at the date of the accident, and at least until the commencement of the proceedings;^[2]
3. Negligence arose from the unidentified driver and the unidentified driver breached his/her duty to take reasonable care;^[3] and
4. The negligence of the unidentified driver caused Mr Love to sustain injuries, per section 96(2)(a) of the Act.

The TAC accepted that Mr Love was involved in an incident on 15 August 2011 involving an unidentified driver. However, the TAC did not accept that the unidentified driver was negligent causing Mr Love’s injuries.

The TAC sought to use the defence in section 96(2) to defeat Mr Love’s claim for compensation.

The TAC tried to defend the proceedings by way of attempting to establish the following:

1. That Mr Love failed to comply with the notice requirements under section 96 of the Act;
2. That Mr Love failed to demonstrate and establish that the vehicle was unidentified or to satisfy his obligation to identify the vehicle, per section 96(8); and
3. By way of attacking the reliability of Mr Love’s evidence.

Mr Love was required to establish that his failure to provide notice to the TAC regarding the unidentified vehicle did not materially prejudice the TAC in their defence and therefore, they could not successfully rely upon their defence under section 96(2).

The Court accepted that Mr Love had not complied with the requirement to give notice of an unidentified driver. However, Mr Love was successful in persuading the court that his failure to give the required notice caused prejudice to the TAC.

Key to this finding was the fact that the unidentified vehicle continued to travel after striking Mr Love and did not stop. Mr Love was unable to keep an eye on the vehicle as he was sliding and focused on trying to take control of his motor scooter. As a result, he was not paying attention to the vehicle that struck him. He was unable to take down details of the registration or licence plate as the vehicle continued travelling. The court accepted that Mr Love did his best to recall the details of the incident. After this had been accepted by the court, the TAC refrained from attacking Mr Love in relation to reliability of his evidence.

Luckily for Mr Love, his evidence was accepted by the court and he was awarded $342,000. However, if the Court had not believed his version of events the TAC may have succeeded in defending his claim.

In summary, if you are in an accident involving an unidentified vehicle, be certain to notify the TAC as soon as possible and provide as many details about the unidentified vehicle to avoid having the TAC relying on section 96 of the Act as a defence to try and defeat your claim for compensation.

[1] Love v TAC (No 2) [2017] VSC 584 [5].
[2] Love v TAC (No 2) [2017] VSC 584 [5].
[3] Love v TAC (No 2) [2017] VSC 548 [7], [9] – [10].

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