Personal injury entitlements

Crime compensation claims and disasters

People who suffer injury from fires started by arson or other criminal activity may be entitled to help from the Victims of Crime Assistance Tribunal (VOCAT). For an entitlement to arise, it only needs to be established that it was likely the fire was started by arson or criminal activity and that there was a threat of injury. The arrest and conviction of an arsonist or offender is not necessary. Application forms can be downloaded from the VOCAT website.

The Victims of Crime (Financial Assistance Scheme) Act 2022 (Vic) is likely to come into effect in late 2023. If you are the victim of a crime after this date, you can apply to VOCAT up to three years from the date of the crime. If you were a victim of crime before this new legislation came into effect, you can make an application within the three-year time limit, unless you have already received an award, or applied and the application was refused under the old legislation.

VOCAT provides compensation for three categories of victim:

• Primary victims
• Secondary victims
• Related victims.

If a person sustains physical and/or psychological injury because of an act of violence, they may be eligible for compensation from VOCAT as a primary victim. Such compensation may include:

• medical expenses incurred as a direct result of the crime, such as reasonable counselling expenses
• expenses incurred through loss or damage to clothing worn at the time of the crime
• reasonable safety-related expenses
• loss of earnings within the first two years up to a maximum of $20,000
• special financial assistance for pain and suffering up to a maximum of $10,000, in accordance with the categories of injury outlined in the regulations
• other expenses necessary for recovery, in exceptional circumstances.

The maximum sum that can be awarded to primary victims of a crime is $60,000, plus an amount for Special Financial Assistance up to a maximum of $10,000. The Tribunal cannot award any compensation for property damage suffered.

A secondary victim is a person who either suffers injury because of being present at or witnessing a violent crime, or suffers injury on becoming aware of the act of violence and is parent or guardian of a primary victim. A secondary victim can be awarded up to $50,000 to cover medical and counselling expenses incurred or likely to be incurred and loss of earnings. Loss of earnings is limited to $20,000 out of the $50,000 maximum. As with primary victims, there is no provision for property damage.

If a person dies as a result of a crime, their close family members could be eligible for compensation as related victims. Related victims may include the spouse, parent, guardian, step-parent, child, stepchild, sibling, or step-sibling of a deceased person. It can also include a dependant of the deceased or someone who had an intimate personal relationship with them. The new Act expands the definition of 'close family member' to include a person who is regarded by a deceased primary victim as a close family member at the time of the victim’s death, and the scheme decision maker considers it reasonable to treat the person as a close family member when considering the circumstances of the relationship. This change was introduced to better recognise Aboriginal kinship relationships and relationships within the LGBTQI community.

Related victims are entitled to claim compensation for:

• funeral expenses
• medical expenses incurred as a direct result of the death, such as reasonable counselling expenses
• monetary assistance for the distress experienced
• money that the related victim was likely to receive from the deceased for up to two years after the death.

The maximum that one related victim can receive from VOCAT is $50,000. There is a pool of $100,000 available from VOCAT for all the related victims of a deceased person.

Transport accident claims

Disasters such as bushfires can create hazardous driving conditions. A person who suffers physical and/or psychological injury as a direct result of the driving of a motor vehicle may be entitled to Transport Accident Commission (TAC) compensation under the Transport Accident Act.

Those who sustain a psychological injury from witnessing a transport accident or the immediate aftermath of an accident may also claim compensation. 'Aftermath' has been defined as the 'immediate circumstances' of an accident. This includes seeing accident wreckage or viewing the scene directly after an accident.

The TAC can also provide compensation and counselling to the family members of a person who died in a transport accident, including travel and accommodation costs for family members to attend the funeral.

Affected people are encouraged to contact the TAC on 1800 332 556 (toll-free outside Melbourne) or 1300 654 329 (local call) Monday to Friday, 8.30 am to 5.30 pm, to lodge a claim. There are TAC representatives at bushfire emergency relief centres who can also assist with lodging a claim. A claim must be lodged with the TAC within one year of the date of the transport accident or within three years of the date in exceptional circumstances.

People who have their claims accepted by the TAC can access various benefits, including:

• medical and like expenses
• loss of earnings benefits
• loss of earning capacity benefits
• lump-sum compensation
• damages for pain and suffering and economic loss
• compensation for family members of a person who has died in a transport accident.

People injured in a transport accident are entitled to payment of hospital fees and most medical expenses. Payment of medical expenses for transport accident injuries continues as long as treatment is needed, provided the expenses are reasonable and directly related to the transport accident.

Reasonable travel expenses incurred in attending medical appointments are payable. The reasonable travel and accommodation expenses incurred by parents visiting their injured dependent children in hospital are also payable.

If assistance is required at home, the TAC may also provide for an attendant carer, housekeeper, gardener, and childminding or nursing services. Modifications to the car or home and rehabilitation services required because of the injury can also be paid for by the TAC.

If the injured person was earning money before the accident or was about to start work, they may be entitled to payments for loss of earnings. The TAC can pay loss of earnings benefits from five days after the accident to 18 months after the accident at a rate of 80 per cent of the person’s pre-accident weekly earnings at up to $1500 per week.

After 18 months, a person who is still totally or partially unfit for work is eligible for a payment of 80 per cent of their net (after tax) pre-accident earnings. These payments are called loss of earning capacity benefits and continue until three years after the date of injury.

Injured people who did not qualify for loss of earnings in the first 18 months may qualify for loss of earning capacity benefits if they intended to go into the workforce before the accident but were prevented by their injuries. If it appears that a person will suffer a loss of earning capacity due to the injury, the TAC must, after 18 months, review the injured person's entitlement.

If a person has a permanent impairment as a result of their injuries, the TAC provides for the payment of a lump sum called an impairment benefit as part compensation for pain and suffering. The amount payable is determined through a formula based on the injured person’s level of impairment. A request for an impairment benefit can be made once the injuries are stable and within six years of the accident. You or your solicitor may request the TAC to commence the impairment assessment process.

If an injury sustained in a transport accident was caused by another person’s negligence, and the injury is serious (as defined by the Transport Accident Act), a court action can be brought against the negligent party for further compensation. This is called common law compensation.

If the TAC or a judge agrees that the injured person has a 'serious injury' due to another person’s negligence, the injured person can be awarded compensation for pain and suffering and economic loss into the future. In most cases, there are strict time limits to commence a common law claim, and the claim must be brought within six years of the injury. There are very limited circumstances where a common law claim can be initiated after the six-year period lapses.

The TAC provides extensive assistance to the family of a person who has died as the result of a transport accident. These entitlements may include funeral benefits, payments to the dependent spouse or children, home help, child-care expenses, and counselling for family members.

A lump sum is payable if the person who died was earning money and their spouse was at least partially dependent on them. For five years after the accident, the surviving spouse will also be paid 80 per cent of the wage or earnings of the deceased. In addition, a weekly benefit is paid to the guardian for each dependent child and an education allowance is also payable while the children are full-time students. If a child is orphaned by a motor vehicle accident, TAC payments will be made for their benefit.

WorkCover claims

A person who suffers physical and/or psychological injury in the course of their employment may be entitled to WorkCover compensation under the Workplace Injury Rehabilitation and Compensation Act.

Examples of workplace injuries arising as a result of a disaster include:

• psychological trauma experienced by police officers and emergency call centre staff in the course of their work performed during and after the disaster
• burns or respiratory damage sustained by people at their workplace or while acting in the course of their employment during a bushfire.

In addition to these examples, there is also legislation which allows career firefighters and volunteers to access worker’s compensation if they:

• have been diagnosed since 1 June 2016 with one of 12 specified types of cancer
• have served in active firefighting for the specified number of years, which varies depending on the cancer type
• are diagnosed while employed or within 10 years of finishing service.

If a claim was made prior to 1 June 2016 regarding one of the 12 specified cancer types and it was rejected, the legislation allows for a new claim to be made.

The specified years of service requirement can be overcome in some circumstances with an application for special consideration due to the worker or volunteer experiencing an exceptional exposure event. An exceptional exposure event will be determined by considering the nature of the event, any relevant findings from a coroner, court proceeding or other official enquiry, any relevant records, or any other matter prescribed by the regulations.

If a person has been injured in the course of their employment, a WorkCover claim form should be lodged as soon as possible. If a person has sustained a psychological injury, it may not be immediately apparent to them, and symptoms may not appear until sometime after the traumatic event. It is important for people to seek medical attention if they are experiencing psychological distress. Claim forms can be obtained from a post office or the WorkSafe website.

Once a claim has been accepted, the worker may be entitled to various benefits, including:

• weekly payments
• medical and like expenses
• lump-sum compensation
• damages for pain and suffering and economic loss
• dependants of a worker who dies at work.

An injured worker’s employer must pay the first 10 days of the worker’s time off work due to their injury. Then, for the next 13 weeks of incapacity, a worker is entitled to 95 per cent of their pre-injury average weekly earnings.

After 13 weeks, and for up to 130 weeks, payments continue at 80 per cent if a worker has an ongoing incapacity for work. If a worker can do some work, they are entitled to the difference between what they are earning and 95 per cent or 80 per cent of their pre-injury average weekly earnings. Some workers can have their weekly payments continue past 130 weeks if they have no capacity for any suitable work and that situation is likely to continue indefinitely. Proposed changes to WorkCover expected to be introduced in late 2023 will limit entitlement to weekly payments unless an impairment threshold is met.

In certain circumstances, where a worker has returned to work for 15 hours a week or more, and is working at their maximum capacity, they will be entitled to top-up payments beyond 130 weeks.

A worker's entitlement to weekly payments, subject to meeting the entitlement thresholds, normally ends when they reach retirement age. This depends on their date of birth:

• Before 1 July 1952 – 65 years
• 1 July 1952–31 December 1953 – 65 years and six months
• 1 January 1954–30 June 1955 – 66 years
• 1 July 1955–31 December 1956 – 66 years and six months
• From 1 January 1957 onwards – 67 years.

An injured worker can be compensated for medical treatment associated with their injury, such as hospital expenses, doctors and other medical services, medications and aids such as crutches, or home modifications. Costs that arise because of the incapacity can also be claimed, such as the need for home help and vocational rehabilitation.

From 1 July 2021, eligible workers with a claim for a psychiatric injury can access provisional payments for medical expenses and services before the final determination of liability. This will allow workers to access medical treatment for 13 weeks, regardless of whether the claim is ultimately rejected. Volunteer emergency workers are also entitled to make a claim for provision payments.

If a worker is considered to have sustained a significant and permanent injury within the meaning of the Workplace Injury Rehabilitation and Compensation Act, they can make an Impairment Benefit claim and may be entitled to lump-sum compensation. This claim can be made from 12 months after the date of injury, or when the injury is considered stable. An injury is considered stable if it is not expected to significantly change with time or further treatment.

If a worker has sustained a serious injury because of the negligence of their employer or a third party, in addition to an impairment benefit claim, they may also be able to bring a common law claim for damages. In a common law claim, the injured person can be awarded compensation for pain and suffering and loss of earnings. The common law claim must be started within six years of the date of injury.

If a person has died at work and left dependants, the dependents may be eligible for the following entitlements:

• Payment of the reasonable costs of medical and like services provided to the worker
• Payment of the reasonable costs of family counselling services
• Payment of the reasonable costs of burial or cremation
• Payment of the reasonable costs for travel and accommodation for immediate family members to attend the burial or cremation service
• A lump-sum payment for dependents
• A weekly pension for dependent partner/s, child/ren, or orphans
• Reimbursement of expenses for non-dependent family members.

Dependency claims for the death of a worker should be made within two years of the worker’s death.

Compensation for volunteers (CFA and SES)

Usually, a volunteer who is injured at work is not able to obtain WorkCover compensation as they are not considered a worker under the Workplace Injury Rehabilitation and Compensation Act (WIRC Act). In respect of volunteer firefighters, a specific provision has been made to deal with cancers, which is discussed in WorkCover claims. However, generally speaking, for other physical and psychiatric injuries, bushfire volunteers are covered by the Victoria State Emergency Services Act. This Act establishes that an Emergency Services volunteer injured while providing an emergency service will be entitled to the same benefits as a worker under the WIRC Act.

The Country Fire Authority (CFA) administers its own compensation scheme for injured CFA volunteers. This compensation scheme, as established under the Country Fire Authority Act and the CFA Regulations, mirrors the entitlements under the WIRC Act. This can include assistance with medical expenses, weekly payments of up to 90 per cent of a volunteer’s pre-injury average weekly earnings, as well as lump-sum compensation if the volunteer has suffered an ongoing, permanent injury.

To claim compensation, CFA volunteers should obtain an approved claim form from the CFA or call the Firefighter Advisory Service on 1800 060 729.

If the volunteer’s injury has occurred in negligent circumstances, they may also be entitled to bring a claim for damages under the Wrongs Act 1958 (Vic). The claim must be commenced within three years of the volunteer sustaining their injury. Any damages paid may result in a payback of compensation received under the Emergency Services or CFA compensation schemes. Get legal advice about the implications of this payback before a damages claim is pursued.

Injuries arising from negligence (public liability)

If it is established that a fire was started and/or spread through the fault of another party, a person who sustains injury as a result of that fire may be entitled to compensation. For a personal injuries claim to be made for pain and suffering, the injured person must establish that they suffer from either:

• a permanent spinal injury of 5 per cent or more according to the Guides to Evaluation of Permanent Impairment
• a permanent physical injury of more than 5 per cent according to the Guides to Evaluation of Permanent Impairment
• a permanent psychiatric injury of 10 per cent or more according to Guides to Evaluation of Permanent Impairment.

If a person has died in a fire and left dependants, there may be a claim for the loss of benefits provided by the deceased to their dependent family members, such as for income loss or care costs. Additionally, a person who sustains significant and permanent psychiatric injury as the result of the negligently caused death of another person may themselves have grounds to bring a claim for their psychiatric injury. There is a three-year limitation period for adults to commence a court action.

Where to get help

For legal information and referrals, call Disaster Legal Help Victoria on 1800 113 432 (Monday to Friday, 8 am to 6 pm). You can also contact your closest community legal centre to get advice from a local lawyer.

For more support options, see Other organisations that can help or find Other ways to contact us.