No-Fault Benefits vs. Common Law: Two Very Different Claims

Most people who get in touch with us after a transport accident use the word "claim" as if there's only one kind. There isn't. The TAC scheme actually runs two separate systems side by side, and confusing them is one of the more common ways people end up settling for less than they're entitled to.

No-fault benefits: the automatic layer

The first system is no-fault statutory benefits. If you're injured in a transport accident in Victoria, as a driver, passenger, cyclist, pedestrian, or public transport user, you can access these regardless of who caused the accident. That's the part that surprises people most. Even if you were the one driving, even if you ran a red light, even if the accident was entirely your own doing, you're still covered.

That's because the scheme isn't built around blame. It's built around getting people back on their feet quickly, without months of arguing over who did what. Statutory benefits cover medical and hospital costs, rehabilitation, a portion of your lost income while you can't work, and funding for things like home or vehicle modifications if your injuries require them.

You don't need to prove anyone did anything wrong to get these. You just need to show the accident happened and that the costs relate to it. This is the layer most people interact with in the weeks and months after an accident, and for a lot of injuries, it's genuinely the whole story. Someone with a broken arm that heals cleanly in six weeks probably won't need anything beyond this layer.

Common law: the layer that requires fault

The second system sits on top of that, and it's a different animal entirely. A common law claim is a claim for compensation against the person or party who caused the accident. Unlike statutory benefits, it isn't automatic, and it isn't available to everyone.

Two things need to be true before you can bring one. Someone else needs to have been at least partly at fault for the accident. And your injury needs to meet what's called the serious injury threshold, which means either your permanent impairment is assessed at 30% or more, or the TAC has granted you a Serious Injury Certificate.

If you clear that bar, a common law claim can cover things statutory benefits never touch. Pain and suffering is the obvious one, compensation for what you've actually been through, not just the bills. But the bigger one, in dollar terms, is usually future economic loss: not what you've lost so far, but what the injury is realistically going to cost you across the rest of your working life. For someone with a permanent injury in their thirties, that can end up being the larger component of a claim over time, though every case is different and depends heavily on individual circumstances.

A simple way to picture the difference

Think of it like this. Statutory benefits are the safety net that catches everyone, regardless of fault, and patches up the immediate and ongoing costs. Common law is a separate claim you make against whoever caused the harm, and it only opens up once your injury is serious enough and someone else's conduct contributed to it.

They're not tiers of the same thing, where common law is just "more" of what statutory benefits already gives you. They're structurally different claims, assessed differently, with different evidence requirements, and paid out through different processes.

Why the distinction actually matters

Here's where people get caught out. Receiving statutory benefits doesn't use up or reduce your right to also pursue a common law claim later, and pursuing one doesn't cancel the other. They're not competing options. Someone with a serious injury might genuinely be entitled to both, running in parallel, without one affecting the other.

The mistake we see most often is someone assuming that because the TAC is already covering their medical bills and paying income support, that's the full extent of what they're owed. For a lot of injuries, it is. For a serious one, it usually isn't, and the gap between what's actually available and what people assume is available can be significant.

The other mistake is assuming eligibility for a common law claim is obvious, one way or the other. It isn't always. The serious injury threshold has real teeth, and it isn't a simple yes-or-no based on how the injury feels day to day. Someone can be in real pain and still fall short of the threshold on a strict reading, while someone else with an injury that looks less dramatic on paper can meet it, because of how it's actually affected their ability to work or live their life. Getting the assessment right at the start affects everything that follows, including how much time and evidence goes into building the case properly.

Timing matters more than people expect

There's also a practical reason not to let this sit. Common law claims generally need to be brought within 6 years of the accident. That sounds generous, and for most people it is, but building a strong case takes time: medical evidence, specialist assessments, and often a serious injury application that itself takes months to resolve. Starting that process early doesn't just protect the deadline, it also means the evidence gathered is fresher and more directly tied to the accident, rather than reconstructed years later.

What to actually do with this

If your injuries are ongoing, more serious than they first seemed, or you suspect someone else caused the accident, it's worth having someone check whether a common law claim is on the table before you assume it isn't. That conversation costs nothing, and it's the kind of thing that's much easier to get right early, while the evidence is fresh and the timeline is still generous, than to unwind years later once assumptions have hardened into fact.