Driving at work has taken a wrong turn for Victorian employees since the Accident Compensation Act 1985 abolished common law claims in November 1997 because the Transport Accident Act 1986 deems people driving during working hours to be covered by the WorkCover scheme. This creates a significant inequity for both incorporated small business operators and their workers.
None of the ‘employee’ directors of Victoria’s 69,512 incorporated small businesses have a right to common law damages. Yet, under the TAC legislation, owners in unincorporated partnerships do but their employees don’t.
So if the owner of an unincorporated courier service and an assistant are driving back to the depot from a night time delivery, and are hit by a drunk driver and suffer identical injuries, the boss can sue at common law for his pain and suffering, whereas the assistant cannot.
The high point of this injustice is that if the owner had taken the time to incorporate his courier business, he would be trapped in the WorkCover scheme. He could not access common law benefits, despite the fact that his injury, and the destruction of his business, was caused by a negligent road user.
It is no safer as an employee. In December 1998, driver Chris Blanche was not just caught in a devastating motor accident when his brakes failed, he was caught in an unfair legislative trap. Despite pointing out to his employer that his truck’s brakes were worn, Chris was ordered to drive an overloaded vehicle from Footscray to Dandenong. Not far from base, his brakes gave out and his truck careered into another truck. Chris had both his legs broken and had to be cut from his vehicle. He was in hospital for ten weeks, and contracted a golden staph infection in his right leg. It will be amputated soon if it does not respond to one final treatment.
If he could claim at common law he would probably receive $450,000, but under WorkCover his award will be between $30-60,000. His weekly income has also dropped from a wage of $900 pre-injury to $340 in benefits. It is very hard for him and his wife to make ends meet, let alone deal with the emotional and physical trauma. His insurer is constantly late with his payments, and will not pay for his rehabilitation expenses. Chris is now retraining himself as a lawn-mower mechanic, as he is determined to work.
The final insult to Chris was that he was charged with driving an unroadworthy vehicle by the Police, and WorkCover has not prosecuted his employer.
The Transport Workers Union has 22,000 members who would be caught if injured, and they estimate there may be as many as 40,000 employees who drive during work hours who could be affected.
In most cases, the employers are being charged the full insurance rate, yet are not able to give their drivers full personal injury protection. Taxis must pay Vic Roads $1682 to register, of which $1542 is allocated to the TAC insurance premium but this premium will not benefit employee drivers. The TAC seems to be ‘double dipping’ with premiums.
Parliament must amend the Act so Victorians can elect which scheme they seek benefits from.
There are other problems with the Act. Weekly benefit levels were originally set too low, and have remained so due to indexation.
High and middle salary earners ($45+k per annum) are also under compensated due to caps. They also have no incentive to return to work, because where they return to lesser paid work, they receive no "gap" compensation. Under the Act, compensation for partial loss of income is reduced by a dollar for every dollar over $707 per week that the rehabilitated person earns, regardless of whether this amount is lower than what they were originally earning. Thus a computer programmer earning $2000 per week who suffered brain injury but was able to return to lesser quality work earning $1000 per week would not be entitled to compensation for the loss of earning potential due to their injury.
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