VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	vcat reference No. Z140/2020	
CATCHWORDS	
Transport Accident Act 1986 ss 46A (1), (1AB), (1A), 68  – psychiatric injuries suffered following the death of applicant’s partner in a transport accident – application for determination of degree of impairment – whether statute barred – whether earlier accepted claim for death benefits enables valid application for impairment assessment to be made.	

APPLICANT	Renee Burns	
RESPONDENT	Transport Accident Commission	
WHERE HELD	Melbourne	
BEFORE	Jonathan Smithers, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	9 October 2020	
DATE OF ORDER	16 December 2020	
CITATION	Burns v Transport Accident Commission (Review and Regulation) [2020] VCAT 1421	

Order
1	The decision of the TAC conveyed by its letter of 3 June 2019, refusing to make a determination of Ms Burns’ degree of impairment is set aside.
2	This matter is set down for an administrative mention on 22 December 2020, by which time the parties are to advise the Tribunal as to their proposals for dealing with the question of costs.

Jonathan Smithers
Senior Member			

Appearances
For applicant	Ms S Gold of Counsel	
For respondent	Ms C Alden of Counsel	

Reasons
Introduction
1	Ms Renee Burns has applied to be assessed for an impairment benefit. That application was made after the expiry of the three-year limitation period in s 68 of the Transport Accident Act 1986 (the Act).
2	The question to be decided is whether, in the circumstances of this case, the fact that she had made an earlier (successful) claim for a death benefit within time, enables her impairment benefit application to be accepted.
3	Ms Burns’ partner was tragically killed in a transport accident on 15 February 2016. She was called to the scene, and identified his body.  On 2 March 2016, she submitted a claim for Funeral and Death Dependency Benefits to the Transport Accident Commission (TAC). On 7 March 2016, TAC paid $12,851.99 funeral expenses under s 60(2A)(b) of the Act. On 5 March 2017, TAC paid $115,658.40 to her by way of surviving partner death benefit under s 57 of the Act. That made a total of $128,510.39.
4	The death of her partner significantly affected Ms Burns, and she moved to New Zealand in mid-2016. I understand she is still in New Zealand. There was no suggestion this affects her potential entitlements to compensation.
5	She had suffered some mental health issues prior to the accident. But soon after the accident, she experienced a number of more severe mental health impacts. She saw a psychiatrist, case manager and, occasionally, a doctor, initially weekly, and now on average ‘every couple of months.’
6	However, she did not seek legal advice until 2019. That was in connection with the coronial process. On 16 May 2019, her solicitors wrote to TAC seeking both an impairment benefit and, potentially, access to common law damages. The solicitors acknowledged that the latest date by which a claim may be lodged under s 68, being three years after the manifestation of her psychiatric injuries, had already passed.
7	On 3 June 2019, TAC rejected her application, and refused to determine her degree of impairment.
8	In March 2020, Ms Burns commenced this proceeding under s 77 of the Act, for review of that decision by TAC.
9	On 15 September 2020, Ms Burns’ solicitors sent TAC a report by a psychiatrist, Associate Professor Paoletti, dated 14 August 2020, plus an Addendum dated 31 August 2020. This diagnosed significant psychiatric illness caused by the accident, including Post-Traumatic Stress Disorder (PTSD) and major depression. TAC was requested to reassess its decision.
10	On 23 September 2020, TAC replied that it maintained its refusal to assess Ms Burns’ level of impairment.
11	Accordingly, the Tribunal is required to consider whether the accepted claim for a death dependency benefit and funeral expenses is also able to stand as a ‘claim’ under s 68, for the purposes of her application for an impairment benefit.
12	Under the Act, the decision in this case has two consequences for Ms Burns. First, if she is unsuccessful, she obviously misses out on receiving impairment benefits. But she also loses another potentially very significant entitlement. This is because under s 93(2)(a), without the TAC making a determination as to her degree of impairment, she is unable to pursue a common law claim for damages.
13	Over decades, there has been a succession of amendments and additional sub-sections ‘bolted on’ to the sections of the Act relevant to determinations of degree of impairment. In some cases, these have been, or might have been, a response to particular Supreme Court decisions. Thus, to a large degree, the relevant authorities concern differently worded suites of provisions regarding impairment. I was told, however, that neither party was aware of any authority which dealt with the provision under which Ms Burns makes her claim her, namely, s 46A(1AB).
Relevant provisions of the Transport Accident Act 1986
14	The provisions requiring particular consideration in this case are as follows:
46A	Degree of impairment
(1)	The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at—
(a)	if the person was not a minor when the accident occurred—
(i)	when the injury stabilises; or
(ii)	3 years after the accident, or 3 years after any injury first manifests itself (as the case may be)—
whichever occurs first; or
(b)	if the person was a minor when the accident occurred or when the injury first manifested itself— 
(i)	when the person attains the age of 18 years, if the injury has stabilised by that time; or

(ii)	in any other case— 
(A)	 when the injury stabilises; or
(B)	when the person attains the age of 21 years— 
whichever occurs first.
(1AA) Despite subsection (1), the Commission must not determine the degree of impairment within 3 months after the accident.
(1AB) If a person applies to the Commission for a determination of his or her degree of impairment as a result of a transport accident more than 2 years after the day of the accident, or the day when any injury first manifested itself, whichever is the later day, the Commission must, if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit, determine the person's degree of impairment—
(a)	if the injury had stabilised by the date that the application was made, within 12 months after that date; or
(b) 	in any other case, within— 
(i)	12 months after the injury stabilises; or
(ii)	2 years after the date the application was made—
whichever occurs first.
(1AC) If the Commission is of the opinion that a person who applied to the Commission in the circumstances described in subsection (1AB) is, or is likely to be, entitled to an impairment benefit, but the person's injury has not stabilised within 12 months after the application was made, the person may ask the Commission to wait until the injury has stabilised before determining his or her degree of impairment.
(1AD) Despite subsection (1AB)(b), the Commission must comply with any request under subsection (1AC) that is made in writing.
(1A) If the Commission—
(a)	has not made a determination under this section of the degree of impairment of a person injured as a result of a transport accident who has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 that has been accepted by the Commission within the period of 6 years after the later of— 
(i)	the date of the transport accident; or
(ii)	the date on which the injury to the person resulting from the transport accident first manifests itself; and 
(b)	within that period of 6 years— 
(i)	 has not advised the person that he or she appears likely to be entitled to an impairment benefit; and
(ii)	has not received an application in writing from the person requesting the Commission to carry out an impairment assessment—
the Commission is to be taken to have made a determination that the degree of impairment is 0%.
…
47	Impairment benefit
…
(7)	Despite sections 46A(1) and 46A(1AA), the Commission may for the purposes of proceedings for the recovery of damages in respect of the injury at any time determine the degree of impairment of a person who is injured as a result of a transport accident and who—
(a)	has made a claim, other than a claim for payments under section 57, 58 or 59 or a claim for compensation under section 60(2A), (2C) or (2E) within the period of time provided by section 68 that has been accepted by the Commission; or
(b)	is not entitled to compensation under this Act by virtue of section 37, 38, 38A or 42—
if the Commission is satisfied that the injury has stabilised or has substantially stabilised.
67	Form of claim
(1)	A claim for compensation under this Act—
(a)	must 	be in a form approved by the Commission; and
 * * * * * 
(c)	must be lodged with the Commission.
* * * * * 

(2)	A defect, omission or irregularity in a claim for compensation does not affect the validity of the claim and the claim must be dealt with in accordance with this Act unless the defect, omission or irregularity relates to information which is not within the knowledge of the Commission.
* * * * *
68	Time for making claim under Part 3
(1)	A person—
(a)	who is injured; or 
(b)	who is a dependant or a surviving partner of a person who dies— 
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year—
(c)	after the accident or death; or
(d)	in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.
(2)	If the Commission considers there are reasonable grounds for a delay in making a claim in accordance with subsection (1), the Commission may accept a claim for compensation under Part 3 at such later time before the expiration of three years after the transport accident or death or after the injury first manifested itself, as the Commission approves.
…
15	Without referring to all aspects of these multifaceted provisions, the following observations can be made:
•	Section 46A(1) requires TAC to carry out an impairment assessment of its own motion where it appears the victim of a transport accident is, or is likely to be, entitled to an impairment benefit. But it must wait a minimum of three months before carrying out that assessment (s 46A(1AA)).
•	Section 46A(1AB) enables the victim themself to apply for TAC to carry out an impairment assessment. Section 46A(1AB) relates to such applications made more than two years after the day of the accident. Again, the same, or a very similar test applies: the TAC must determine the person’s degree of impairment if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit.
As noted, this is the provision relied on by Ms Burns in this case.
•	Section 46A(1A) has the effect that if a person has made a claim within the limitation period in s 68 (that is, one year, extendable to three years), and TAC has accepted that claim but not made a determination of degree of impairment within six years (although that period may vary) then the TAC is taken to have made a determination that the degree of impairment is 0%. 
This will satisfy one of the two requirements in s 93(2) to pursue common law damages—the requirement that TAC has determined the applicant’s degree of impairment.
Significant in relation to the arguments put, the legislative history and applicable authorities, is the fact that this provision was amended in 2013. In particular, claims for death benefits, and five other types of claims (being claims under ss 57, 58, 59, 60(2A), (2B) and (2E)) were excluded from the types of claims which can activate the deemed 0% impairment under this provision. 
It was said by the TAC that the intention was to restrict the application of this provision to claims by a person ‘in their own right’, or ‘for their own personal injury’ as opposed to claims derived from injury to another person.
16	Section 47 then goes on to assign dollar amounts to degrees of impairment which have been determined under s 46A. If the degree of impairment is 10% or less, the impairment benefit is zero. Where the degree of impairment is 11% or more, a graduated scale of benefits applies.
17	Section 47(7) returns to the topic of when a determination of degree of impairment can occur. It relates to the situation where a person seeks an assessment ‘for the purposes of proceedings for the recovery of damages’. Relevantly, it provides that where a person has made a claim within the time provided by s 68 (that is, one year, extendable to three years) that has been accepted by TAC, then TAC may determine that person’s degree of impairment, if the injury has stabilised. 
18	Again, however, claims under ss 57, 58, 59, 60(2A), (2B) and (2E) (non ‘own right claims’) are excluded from the operation of s 47(7).
Clarification of the basis of the claim
19	Unfortunately, TAC’s written submissions of 30 July 2020, assumed that Ms Burns was relying on different provision(s) to the one it transpired she was actually relying on.
20	In the request of 17 May 2019, Ms Burns’ solicitor wrote:
I am advised by fellow practitioners, that in the Supreme Court Proceeding of Markovic v Transport Accident Commission, the TAC accepted that a dependency claim was a substantive “claim” for the purpose of a client accessing impairment and common-law. I would be grateful if you could please confirm that the TAC will accept Ms Burns and [her daughter’s] lodgement of impairment claims and will pay an impairment benefit in the event they exceed 10%.
21	The correspondence which passed between the solicitor and the TAC, which was provided to the Tribunal, was brief. It appears the basis on which the claim was made was not stated precisely. 
22	Markovic v Transport Accident Commission was a case which commenced in the Supreme Court, but did not proceed to a written judgement. The case concerned the TAC’s refusal to determine the plaintiff’s degree of impairment. Following argument before Beach J on 19 June 2013, TAC withdrew its decision. It undertook to determine the applicant’s degree of impairment after all. While there is transcript of that discussion, TAC says the circumstances in Markovic differ from those in the present case. And of course, it does not stand as a binding authority. 
23	The TAC had initially assumed Ms Burns was relying on s 46A(1) and/or s 46A(1A). 
24	The TAC’s written submissions dealt with Markovic in some detail. In the hearing, however, Ms Alden, for the TAC, said that it was not necessary to consider Markovic, as it dealt with a claim under s 46A(1A). That provision had been amended, she said, in response to the 2008 decision of Cavanough J in Byrne v Transport Accident Commission (which is referred to below). 
25	Further, the written submissions on behalf of Ms Burns dated 31 July 2020 stated that her claim was made under s 46A(1AB). So the application to be considered here is one under s 46A(1AB), not s 46A(1), nor s 46A(1A),
26	There was no suggestion by either party that this hearing should not proceed as a result of the delay in the parties reaching a common understanding as to the basis on which the claim was made. At the hearing, both were content for this review to proceed on the basis that Ms Burns’ claim is made under s 46A(1AB), and that the question is whether it is statute-barred. And that if it is not, TAC’s decision refusing to conduct an assessment of Ms Burns’ degree of impairment should be set aside. The effect of that would be that TAC would be required to proceed to determine an actual figure for Ms Burns’ degree of impairment. This would serve for the purposes of both payment of an impairment benefit, and for the potential pursuit of common law damages. 
The Tribunal’s jurisdiction
27	This case is different to others where it has been found that VCAT lacked jurisdiction to determine applications concerning impairment assessments. Although neither party raised any issue questioning the Tribunal’s ability to determine this case, given the fact that jurisdictional issues have arisen in matters where impairment assessments have been sought in the past, I will refer to two such issues. 
Clarke and Smith
28	First, the jurisdictional issue which arose in Transport Accident Commission v Clarke, and Transport Accident Commission v Smith does not apply here. 
29	These two cases involved relevantly the same issues, and were determined together. 
30	The applicants were proposing to seek damages at common law. For this, a condition precedent under s 93(2) was (and still is) that TAC has determined the degree of impairment of the person under s 46A, s 47(7) or s 47(7A). In Clarke and Smith, the applicants sought to avail themselves of s 47(7)(b). A dispute arose and the former Victorian Administrative Appeals Tribunal (AAT) determined that it had jurisdiction to determine that dispute. 
31	However, that decision was overturned by the Appeal Division of the Supreme Court. It found the AAT did not have jurisdiction. 
32	Section 77 of the Act allows a person to seek review of decisions by TAC. But the Appeal Division found this is confined by s 63, which narrows the scope of AAT (now VCAT) reviews to those ‘with respect to claims for compensation.’ 
33	Clarke and Smith’s claims were not for, or with respect to, compensation. Rather, they were seeking that an impairment assessment be carried out in order to pursue a claim in the courts for common law damages. 
34	As the applicants’ claims were outside the limitation imposed by s 63, the AAT lacked jurisdiction.
35	However, the circumstances of Ms Burns’ application are different, and there was no suggestion by the TAC (or Ms Burns) that the Tribunal lacked jurisdiction on the basis that applied in Clarke and Smith. 
36	Here, Ms Burns has clearly made an application for assessment of degree of impairment for the purposes of an impairment claim, which is a claim for compensation under the Act. The fact that she has indicated she is also considering a potential common law claim does not deprive the Tribunal of jurisdiction. Accordingly, this application to VCAT falls within s 77, as confined by s 63.
Kerrigan and Shah
37	Second, there was no suggestion that the Tribunal lacked jurisdiction to determine this application on the basis found in Kerrigan v Transport Accident Commission or Shah v Transport Accident Commission. In those cases, the question was whether TAC had made any decision which the Tribunal could review. The applicants in Kerrigan and Shah contended that under s 4 of the Victorian Civil and Administrative Tribunal Act 1998, (VCAT Act) the TAC’s failure to conduct an impairment assessment by the time they chose to commence proceedings at VCAT amounted to a decision to refuse to do so, which VCAT had power to review. 
38	But the Tribunal in both Kerrigan and Shah rejected the contention that there had been a deemed refusal. Indeed, TAC was still in the process of determining those applications.
39	In the present case, in contrast, it is common ground that TAC has made a decision refusing to determine Ms Burns’ degree of impairment. I assume it was on this basis that no suggestion was made by either party that VCAT lacked jurisdiction to deal with this application on the basis in Kerrigan and Shah. 
The Byrne decision – the requirement that an applicant ‘appears to the Commission to be or to be likely to be entitled to an impairment benefit’
40	As a precursor to dealing with the key dispute between the parties, it is necessary to refer to the 2008 decision of Cavanough J in Byrne v Transport Accident Commission, Both parties referred to this case in their submissions.
41	That case concerned the question of whether a valid application may be able to be made for an assessment of a person’s level of impairment, even in the absence of a formal claim having been made within the (maximum) three year limitation period set out in s 68.
42	Cavanough J found that the answer to that question was yes. In that case, the applicant suffered a miscarriage following a traffic accident. Her claim was submitted more than three years after the accident. Nevertheless, Cavanough J found that she could be able to make an effective application for impairment benefit (subject only to outstanding questions of fact concerning whether the plaintiff ‘is a person injured as a result of a transport accident’).
43	The Court was required to consider whether or not it appeared to TAC that a ‘person is or is likely to be entitled to an impairment benefit.’ 
44	This is because the form of s 46A(1A) applicable in Byrne, under which Ms Byrne applied, was as follows:
(1A)	If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period of 6 years after an injury resulting from a transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application. 
45	His Honour indicated that a person who was ‘in the system’, that is, who had already come to TAC’s attention within the three-year limitation period, could be able to make an application for an impairment assessment, even after the s 68 limitation period had passed. 
46	Further, the actual determination of the degree of impairment a person was suffering as at a particular date, did not have to be made at that time. If need be, that determination could be made well after the date to which it applied.
47	In his analysis, Cavanough J was dealing with s 46A(1) and s 46A(1A). While s 46A(1A) has been amended significantly since that decision, the relevant text of s 46A(1), being the introductory words in the first five lines, remains in the form it was when considered in Byrne.
48	For present purposes however, the relevant point is that both these provisions dealt with the question of when the TAC is or is not required to make an assessment as to whether it appears that a person is, or is likely to be, entitled to an impairment benefit. In particular, is TAC required to do so where the limitation period in s 68 has already expired?
49	Justice Cavanough said that TAC will not be obliged to make an impairment determination in relation to a person who is ‘plainly out of time’ to lodge a claim. He went on to say:
But the important matter is that in each case the TAC is required in the first instance, as a matter of law, to ask itself whether the person appears to be or to be likely to be entitled to impairment benefit, not whether the person has lodged (or could lodge) a timely claim.

50	Both parties accepted that Cavanough J’s reasoning is relevant to the analysis of Ms Burns’ situation in this case. The difference between them however, is that TAC contends that in contrast to the applicant in Byrne, Ms Burns is ‘plainly out of time’.
The primary issue between the parties – whether Ms Burns’ request for an impairment assessment is out of time
51	As stated, Ms Burns’ claim is made under s 46A(1AB) of the Act. This enables a person to apply to the TAC to determine their degree of impairment, and imposes an obligation on the TAC to determine that, if certain conditions are satisfied.
52	It is common ground that s 46A(1AB) only has application if Ms Burns’ claim for payment was not already statute-barred. That is, both parties accepted that this is the effect of the decision in Transport Accident Commission v Locastro. Whether or not it was statute-barred, is the crux of this case.
53	The TAC says that by the time Ms Burns made an application for an impairment determination (on 16 May 2019) she was statute-barred. The limitation period under s 68 had already expired.
54	Ms Burns, on the other hand, argues that her application for funeral expenses and a death dependency benefit made on 2 March 2016 (only two weeks after the accident) was sufficient for her to pass through the s 68 ‘gateway’. It paved the way for her to make a legally valid request for TAC to determine her degree of impairment, more than three years later.
55	Section 68 relevantly provides that a person who is injured as a result of a transport accident may make a claim for compensation under Part 3 of the Act within one year after the accident.
56	Under s 68(2), that period of one year can be extended to three years at TAC’s discretion. It was common ground here that nothing turns on whether a one-year or three-year period applies. Ms Burns says her ‘claim’ was made two weeks after the accident (on 2 March 2016) and TAC says it was not made until more than three years after the accident (on 16 May 2019). As noted above, for simplicity, the time limit is referred to in this decision as three years.
57	As stated, neither party was able to refer me to any case where the question of the correct application of s 68 in relation to s 46A(1AB) has arisen for consideration by VCAT or a court before. 

Ms Burns’ contentions
58	The key proposition relied upon by Ms Burns is that the making of the claim for a death benefit, two weeks after the accident, and hence clearly within the time limit set out in s 68, enabled her subsequently to apply to TAC to make an impairment assessment under s 46A(1AB), even after the expiry of the three year time limit in s 68.
59	That is, a ‘claim’ under s 68 is a different thing to an application for assessment of her degree of impairment under s 46A. It was said that impairment benefits are not the most common type of compensation paid under the Act. They will generally follow on some time after an application for other compensation, such as for medical expenses. Indeed, there is a minimum period of three months after an accident, before the TAC is allowed to determine the degree of impairment (s 46A(1AA)). 
60	Ms Burns also relied on the following statement by Cavanough J in Byrne at [43]:
The claims procedure provisions themselves (ss 67 and 68) are not strict and absolute in their requirements (see ss 67(2), 68(2) and (3)). Moreover, they are framed in terms of a “claim for compensation under this Act”, not in terms of a claim for anything else, much less in terms of an “application” for an impairment determination (which is the language used in s 46A(1A)).
61	It was noted that the one-year/three-year limitation period in s 68 is quite strict compared to other comparable legislation. For Ms Burns it was said:
This may be compared with the more generous six year time limit to bring actions for damages under the Transport Accident Act 1986 or the Workplace Rehabilitation and Compensation Act 2014, or the general limitation period for actions for damages for personal injuries of three years, all of which have available extensions in certain circumstances in line with s 23A of the Limitation of Actions Act 1958.
62	Further, it was submitted the other criteria in s 46A(1AB) are satisfied:
•	Ms Burns did apply to TAC for a determination of her degree of impairment (on 16 May 2019) and this was more than two years after the accident
•	Ms Burns can be regarded as being ‘likely to be entitled to an impairment benefit’. This is so in light of the report by Associate Professor Paoletti of 14 August 2020 which diagnosed PTSD and other conditions, amounting to a psychiatric impairment of 20%, of which 15% was caused by the accident. It does not matter that Associate Professor Paoletti’s report only came four and a half years after the accident. There is no requirement for the material on which the likelihood of entitlement to an impairment benefit is based, to come to TAC’s attention within the limitation period (Byrne, at [29], referred to above).
63	The amendments to s 46A(1A) in 2013 (and equivalent amendments made to s 47(7)) had the effect that impairment assessments were not enabled to be carried out pursuant to those provisions, where a claim for payments had been made under ss 57, 58 or 59, or a claim for compensation made under s 60(2A), (2C) or (2E). The second reading speech stated that the bill ‘confirmed’ that ‘a person must have an accepted claim for compensation for their own personal injury in order to obtain a determination of impairment’. And the explanatory memorandum said the amendments:
… clarify that a person who is injured in a transport accident must have an accepted claim for compensation in their own right for their own personal injury in order to obtain a determination of impairment and consequently seek access to common law damages.
64	However, Ms Burns said, no equivalent amendment was made to the provision under which she makes her claim, namely, s 46A(1AB). Nor should that provision be read as though it included the words which exclude those six provisions (Byrne, at [36]). Therefore, it was submitted, where a request for an impairment assessment is made under s 46A(1AB) after more than three years, the fact that the ‘claim’ relied upon as having been made within time was for a death benefit under s 57, does not make that request invalid. And once such an application was made, TAC must determine the degree of impairment, in particular, in light of Associate Professor Paoletti’s report.
65	Enabling another claim to ‘piggyback’ on the claim for a death benefit in this way does not undermine the purpose of the limitation provision in s 68. That purpose is to enable the TAC to investigate matters such as whether an accident occurred in compensable circumstances. The making of a timely initial claim puts TAC on notice of the accident, and enables it to carry out any such necessary investigations before evidence dissipates. In the present case, TAC was clearly able to satisfy itself that all necessary threshold requirements were satisfied, since it paid out a total of $128,510.39 by way of funeral benefits under s 60(2A) (in March 2016) and death benefits (in March 2017).
66	Ms Burns also pointed to the fact that TAC retains the right to utilise the information provided by way of the death benefit application form for other purposes. The form states:
The TAC will retain the information provided in this claim for compensation and any other information obtained on your claim file. The TAC will use this information to verify any entitlement to benefits under the Transport Accident Act 1986 or to common law damages.
67	Ms Burns said this provides further support for the contention that once the initial claim has been lodged, an application for an impairment assessment may follow without an additional ‘claim’ having to be lodged under s 68. This is consistent with the notion that a request for an impairment assessment is not necessarily the same thing as the lodgement of a ‘claim’. 
68	It was also noted that under s 46A(1), TAC is obliged to make an impairment assessment where it appears to it that a person is or is likely to be entitled to impairment benefit – without reference to a claim or an application having to be made.
69	In this regard, it was further said that there is no prescribed form for requesting an impairment assessment. While TAC’s position was that Form 4 under the Transport Accident Regulations 2007 should have been used, I note that the form does seem to be primarily directed towards persons who directly suffered injury in the accident themselves.
70	Finally, Ms Burns submitted that her analysis is further bolstered by the beneficial purpose of the Act. That is, to the extent there is any ambiguity, the Tribunal should not expand the operation of a limitation provision to shut out claimants who are otherwise potentially eligible.
71	In this regard she referred to two authorities. The first was the statement of Bongiorno J in State Trustees v Transport Accident Commission: :
[25]	The Transport Accident Act 1986, which gives legislative authority to the AMA Guides, is beneficial legislation the purpose of which is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents. That such legislation should not be given a narrow interpretation is well accepted. As Odlin Shopfitting International Pty Ltd v Kaljanac in relation to a Workers' Compensation statute which he was construing:-
"It happens that the construction which I favour is also that which avoids a diminution or reduction of a worker's rights under the statute. As it is beneficial legislation, anomalies and ambiguities should ordinarily be resolved in favour of achieving the social purpose of providing compensation to injured workers in full measure as provided by the Act."
In Dodd v Executive Air Services Newton and Norris, JJ each adopted the comment made by Fullagar, J in Wilson v Wilson's Tile Works Pty Ltd (in dissent but not on this point) to the effect that where two constructions of a Workers' Compensation Act are possible, that which is favourable to a worker should be preferred. The legislation with which I am presently concerned is legislation of the same kind as workers compensation legislation. It exists to provide appropriate "no-fault" compensation to citizens injured in transport accidents. It should be construed similarly to the statutes with which Kirby, P and Fullagar, J were concerned. In particular, in the present context, in construing a legislative document which defines and delimits a right to compensation or the extent of that right, it would be inappropriate to exclude an accepted meaning of a word where to do so would limit or exclude an otherwise appropriate entitlement to benefits.
72	The second authority Ms Burns referred to was the following statement of Niall JA in Marsh v Transport Accident Commission.
[34]	In this regard, the observations of Bongiorno J in State Trustees as to the beneficial nature of the provision come into play.  Such precepts are not determinative where the language of the particular provision does not allow it and it is the text where the constructional task must commence and end.  The task remains one of construction of the text and not simply giving effect to general concepts of advancement or beneficence.  However, where different meanings are available, the approach taken by Bongiorno J is helpful in determining which alternative the legislature intended.  
TAC’s contentions
73	First, I deal with a contention which was not relied upon by TAC at the hearing: that Ms Burns’ claim was to be rejected because she had applied using the wrong form. That was the original basis given for the refusal of the request for an impairment assessment in the TAC’s refusal letter of 3 June 2019. That letter referred to the claim Ms Burns had made in 2016 for a death benefit. That claim used the form prescribed for Funeral and Dependency Benefits, namely, Form 6 under the Transport Accident Regulations 2007. In its letter of 3 June 2019, TAC said that a claim for compensation must be made using Form 4. As no Form 4 was provided, ‘we are unable to make an impairment determination.’
74	In the hearing, however, it was ultimately confirmed that the TAC did not rely on this as a basis on which its decision should be upheld.
75	TAC argued that s 68, and the Act generally, distinguishes between two categories of claims. First, there are claims arising out of injuries suffered by the claimant themself directly from a transport accident, such as medical expenses, impairment benefits and loss of earnings. Picking up language which appeared in s 46A(1A) previously, TAC describes this category as claims made by an applicant ‘in his or her own right’. The second category is ‘dependency’ claims, such as death benefits. 
76	TAC says a separate claim needs to be lodged under s 67 for each these two categories of entitlement, and each such claim needs to be made within the time limit set out in s 68. It was the failure to lodge a separate claim for an impairment assessment, or a ‘claim in her own right’ within the three-year period which was fatal to Ms Burns here, rather than the failure to use the correct form.
77	TAC says the structure and language of s 68 support this contention. 
78	Under s 47, Ms Burns will only be entitled to an impairment benefit if she has suffered a degree of impairment of 11% or more. Hence, under s 46A(1AB), TAC needed to receive information suggesting that Ms Burns has an injury of at least 11%.
79	TAC says it did not receive evidence of a degree of impairment of 11% or more before the expiry of three years. For example, the mere fact of a prescription for Valium on 25 February 2016, 10 days after Ms Burns’ partner’s death could not be said to be sufficient to indicate to TAC a likely entitlement to an impairment benefit. Nor could the letter of 30 January 2017 to TAC from Ms Burns’ daughter, which referred to evidence required to be provided to TAC. This letter stated: ‘The evidence has been difficult to collect, and has taken a significant emotional and psychological toll on all of us who have been involved. As such, it has taken a matter of months to action.’
80	In relation to that particular contention by Ms Burns, it was ultimately conceded by her, rightly in my view, that the evidence suggesting a likely entitlement to an impairment benefit which was received by TAC within three years of the accident was in fact ‘flimsy’.
81	On the other hand, it is clear that the report by Associate Professor Paoletti of 14 August 2020 would comprise a strong basis for concluding that Ms Burns was likely to be entitled to an impairment benefit. But TAC says that was received too late.
82	Finally, the TAC pointed to the incongruous outcome which it said would arise from allowing Ms Burns to claim an impairment benefit (and potentially common law damages) here. The effect would be to allow her to be able to make an application for impairment assessment at any time in the future. This would also put her in an anomalously advantageous position, as compared with other claimants who sought an impairment assessment, but who had not made a within-time application for a death benefit. For Ms Burns, her application for impairment could ‘piggyback’ on her earlier claim for death benefits, but others would not have this advantage. This also runs counter to the object of determining claims for compensation speedily and efficiently, set out in s 8(c).
Analysis
83	In my view, the application of the reasoning of Cavanough J in Byrne, which I should follow here, results in the conclusion that Ms Burns’ application for TAC to determine her level of impairment should be accepted. TAC should determine her degree of impairment.
84	There is nothing about the present claim, or the circumstances applicable, which makes the reasoning of Cavanough J relevantly inapplicable here. Although Cavanough J was dealing with s 46A(1A) in its previous form, the key aspect of his decision for present purposes is his analysis concerning the requirement that it appears to TAC that the applicant is, or is likely to be, entitled to an impairment benefit. 
85	I accept the contentions put on behalf of Ms Burns in this case.
86	In accord with the analysis in Byrne, Ms Burns clearly had come to TAC’s attention within the three-year limitation period. She was ‘in the system’. She had come to TAC’s attention through, at least (in terms of information provided to the Tribunal) the Valium script of 25 February 2016, the funeral and death benefits claim of 7 March 2016 and the letter of 30 January 2017 to TAC from Ms Burns’ daughter.
87	Hence, following receipt of her application for an impairment assessment on 16 May 2019, the TAC was obliged to ask itself first whether it was of the opinion that Ms Burns was, or was likely to be, entitled to an impairment benefit (Byrne, at [29] quoted at [49] above). Associate Professor Paoletti’s report clearly indicates that to be the case, since he assessed her level of impairment due to the accident at 15%.
88	The fact that his report came after the expiry of the three-year limitation period does not prevent the report from being taken into account in this way (Byrne, at [29]). I do not accept the contention put for TAC that Ms Burns can make application for an impairment assessment after three years, but only if she had submitted a claim ‘in her own right’ within the three-year period.   
89	Turning to the distinction between ‘own right’ claims and ‘dependency’ or ‘derivative’ claims. As TAC noted, the Act does reflect a distinction between a claim for compensation by a person who is injured as a result of the transport accident, and a claim for compensation by a dependent of a person who died as a result of the transport accident. That distinction is apparent from s 35, which is as follows:
(1)	A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if— 
(a)	the accident occurred in Victoria; or 
(b)	 the accident occurred in another State or in a Territory and involved a registered motor vehicle and, at the time of the accident, the person was— 
(i)	a resident of Victoria; or
(ii)	the driver of, or a passenger in, the registered motor vehicle.
(2)	A dependant of a person who dies as a result of a transport accident is entitled to compensation in accordance with this Act if the person who dies was or would, but for the death, have been entitled to compensation in respect of the accident by reason of subsection (1).
(3)	The Commission is not liable to pay compensation to a person in accordance with this Act unless the person is entitled to compensation.
90	The numerous different types of claims which may be made under s 68 are likely to be able to be separated out into one or other of these categories. 
91	Section 68 also reflects this distinction. It relevantly states:
(1)	A person—
(a)	who is injured; or 
(b)	who is a dependant or a surviving partner of a person who dies— 
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year—
(c)	after the accident or death; or
…
92	In my view, however, none of this means that s 67 and s 68 must be interpreted as requiring that a formal ‘claim’ for an impairment assessment, or a claim ‘in her own right’ must be made within three years of the transport accident, where a death benefits claim has already been lodged within that period. The words of s 68 do not require this. They do not explicitly prescribe a separately running limitation period in relation to each of these two categories of compensation. 
93	Consistently with Ms Burns’ argument, s 68 refers to ‘a claim’ in the singular, suggesting that once ‘a claim’ has been made, it is able to stand as the basis on which a future application for determination of degree of impairment may be made.
94	As Cavanough J noted at [43] of Byrne, there is a distinction between ‘a claim for compensation’ under s 68, and an ‘application’ for an impairment determination under s 46A.
95	Importantly, s 46A(1AB) does not exclude from its operation prior applications made under the six listed provisions (ss 57,58,59, 60(2A), (2C) or (2E)) whereas s 46A(1A) and s 47(7) were amended to exclude such applications. In in my view, this is a powerful indication that the making of a death benefit claim within time is able to facilitate a later request for an impairment assessment under s 46A(1AB). For whatever reason, the legislature did not move to preclude an impairment assessment under s 46A(1AB) where a prior claim made within the three-year limitation period was for a for a death benefit. The rationale referred to in the second reading speech and explanatory memorandum obviously does not apply to s 46A(1AB) as it was not amended.
96	I acknowledge that the consequence of this analysis is that an applicant in Ms Burns’ position, having made a death benefits claim within time, would not be subject to any time limit for making of a subsequent application for impairment assessment. There may be some incongruity about this, and it was not said what the extent of the implications of this are in practice. However, that is the effect of the text of the Act, and such considerations cannot override the primacy of the text in statutory interpretation.
97	Accordingly, the decision of the TAC conveyed by its letter of 3 June 2019, refusing to make a determination of Ms Burns’ degree of impairment, is set aside.
98	The consequence is that the TAC is required to determine Ms Burns’ degree of impairment under s 46A(1AB), including carrying out whatever medical assessments are required for this. 
99	This is subject to the need for TAC to be satisfied that Ms Burns suffered an impairment ‘as a result of a transport accident’, as required under s 46A(1AB). TAC’s submissions stated that it was not conceded she was ‘injured as a result of a transport accident’. As noted, Ms Burns believes the circumstances strongly suggest this requirement is satisfied. She relies on the facts that TAC has already paid out $128,510.39 for funeral and death benefits on the basis that the accident occurred, and that Associate Professor Paoletti has expressed the opinion that she has suffered a psychiatric impairment of 15% as a direct result of the accident in which her partner died. 
100	Ms Burns’ written submissions also referred to seeking an order for costs on the County Court scale, to be taxed in default of agreement. However, no reference was made to costs by either party during the hearing. I will therefore make an order allowing for the parties to confer, and to advise the Tribunal as to the position in relation to costs.

Jonathan Smithers
Senior Member