Victorian Supreme Court's logical interpretation of a "dependent child"

Victorian Supreme Court's logical interpretation of a "dependent child"

This month we welcomed a sensible decision from the Victorian Supreme Court regarding the definition of a “dependent child” in the Transport Accident Act 1986 (Act).

Legislative Background

A “dependent child” is entitled to lodge a dependency claim with the TAC if a parent dies in a transport accident or because of injuries suffered from a transport accident.

According to the Act, a “dependent child” is a child of a deceased who was dependant on the deceased for economic support, does not have a spouse or domestic partner, and is:

  • under the age of 16 years old; or
  • between the age of 16 and 25 years old and is a full time student or apprentice. 

The child can be wholly, mainly or partially dependent on the deceased for economic support.

Once a dependency claim has been accepted, a dependent child may be eligible to receive a lump sum benefit, weekly payments and an education allowance from the TAC depending on the circumstances.

Case study

The case of Marsh v TAC [2020] VSC 228 involved TAC’s decision to reject the Plaintiff’s dependency claim after his mother died in a motor vehicle accident on the basis that he was not a full time student at the time of the accident.

The Plaintiff completed Year 12 in 2014 and decided to take a gap year in 2015. During his gap year, he worked full time for 10 months and casually thereafter. The Plaintiff intended on returning to study after his gap year.

In September 2015, the Plaintiff enrolled in a full-time diploma course, due to commence in February 2016. He was enrolled as a full-time student and given a student number and enrolment details by the training organisation.

In December 2015, the Plaintiff’s mother tragically died in a motor vehicle accident. At the time of her death, the Plaintiff had been working an average of 15 to 25 hours a week.

TAC rejected the dependency claim on the basis that he had not commenced the course at the time of his mother’s death, and therefore did not satisfy the definition of a “full-time student”.

The TAC’s decision was originally upheld by the Victorian Civil and Administrative Tribunal (VCAT).

However, on appeal, the Victorian Supreme Court overturned this decision and held that the Plaintiff did satisfy the definition of a “full-time student” and thus satisfied the definition of a “dependent child” at the date of his mother’s death.

Implications

The interpretation of the law prior to this case did not reflect the changing times of many students taking gap years or short breaks before commencing tertiary education.

This case will serve to protect those who have finished their high school education and enrolled in a tertiary course but have not commenced it yet. The Supreme Court also indicated that those who have finished their high school education and had applied for an offer of a tertiary place but had not been accepted yet may also still be protected.

Additionally, the Victorian workers compensation legislation has a similar definition of a “dependent child” so this interpretation will apply to children of individuals who have died at work as well.

If you or someone you know has been injured on the road, get free legal advice from our TAC experts on (03) 9321 9704.

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