Bourke Street Tragedy – Legal Rights Explainer

7 February 2016

Following the events that rocked Melbourne on 20 January 2016 both the public and the Andrews Government have shown overwhelming support for victims caught up in the tragedy.

This week the Government announced that former Police Commissioner, Mr Ken Lay APM, would chair the Bourke Street Fund Panel. The Fund has already raised over one million dollars in public donations and Government support.

Support such as counselling, medical treatment and loss of income compensation is available to anyone who is suffering or has lost income following the events either due to physical injury or witnessing the crime. 

Further support may be available in the long term in the form of common law damages for those suffering long term injuries, which can include payments for pain and suffering and also for lost income.

Navigating an individual’s entitlements can be difficult as entitlements will be different depending on what a person was doing at the time of these events.

At work -

If a person was at work, or on a lunch break from work, they will be entitled to make a WorkCover claim for benefits through their employer. Special arrangements are in place for employers in respect of premiums given the only relationship for these claims is that this event has occurred near a work location.  Workers should feel comfortable to lodge a claim with their employer and can obtain a claim form online, from their employer or a post office.

Not at work –

If a person was not at work on the day they will be entitled to lodge a claim to the TAC due to either being injured by a motor vehicle or witnessing the events caused by the motor vehicle. The only way a TAC claim can be lodged is by calling the TAC directly, who will talk claimants through a claim form over the phone, and are contactable on 1300 654 329.

Difference between ‘at work’ or ‘not at work’?

There are subtle differences in claiming time off work and receiving medical expenses under the TAC and WorkSafe schemes, respectively.

The same form - a Certificate of Capacity from a claimant’s Doctor - is required in order to receive lost wage benefits from TAC or WorkCover. A claim has to be made in respect to lost earnings and/or medical treatment. Given the nature of the events, both organisations will be doing their best to fund treatment.

More substantial differences apply to claims for lump sum compensation which may follow. Such claims generally cannot be made for at least 12 months (or longer in some circumstances). These lump sum claims may show significant divergence in compensation paid to people claiming under TAC and WorkCover, respectively.

Victims of Crime Assistance Tribunal

Whether at work or not, a person injured in these events will be entitled to make a claim to VOCAT for entitlements not covered by WorkSafe or the TAC, including potentially Special Financial Assistance. This can be done via a lawyer or directly to the Tribunal via their website - www.vocat.vic.gov.au. Legal advice should be sought by potential claimants.

How will the Bourke Street Fund work?

The Bourke Street Fund Panel have yet to define how they will use the Fund to assist those injured by these events.

Neither TAC nor WorkSafe provide 100% coverage for losses. For example, TAC provide only 80% of lost wages. Calculating the proper rate for someone’s lost wages can sometimes be difficult, with unfair outcomes sometimes resulting. A VOCAT claim might reduce this potential unfairness.

I see the Bourke Street Fund’s role is to compensate victims where the current compensation schemes are unable to, or in being able to fund special grants for quick help to people in desperate need. It will be interesting to see how the Fund directs its support, and meshes with already existing compensation schemes.