Category: Blog

WHEN AN ACCIDENT IS PARTIALLY YOUR FAULT

(CONTRIBUTORY NEGLIGENCE) 

Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.  

Compensation Court

The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered.  The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said: 

An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”  

Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said: 

“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”  

As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.  

Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002.  The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.  

Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed. 

Scott Hall-Johnston 

Beilby Poulden Costello 

PERSONAL INJURY UPDATE

RECENT COMPENSATION CASE

There was a recent decision in the New South Wales Court of Appeal involving an application by an injured claimant to set out aside a decision of Supreme Court Judge, Mr Justice Fagan, to refuse the injured person’s application to seek judicial review of a decision by the Proper Officer of the Medical Assessment Service. The case was Dominice –v- Allianz Australia Insurance Limited [2017] NSWCA 171.

Compensation Court

The injured claimant suffered injuries in a motor vehicle accident in July 2013. In order to obtain compensation for non-economic-loss (bodily injury) it is necessary to demonstrate a degree of permanent impairment greater than 10%. The claimant was initially assessed as having a whole person impairment of 18%. The CTP insurer, Allianz, sought a review of that determination.

The review application was determined by The Proper Officer of the Medical Assessment Service of the Motor Accidents Authority. The Proper Officer is required to refer the application to a review panel of medical assessors but only if the Proper Officer “satisfied there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.”

The Proper Officer decided to refer the application by the CTP insurer to a review panel. The injured claimant instructed her lawyers to challenge that referral decision by way judicial review pursuant to Section 69 of the Supreme Court Act 1970 [NSW].

The claimant’s application was dismissed by His Honour, Mr Justice Fagan in the Supreme Court on 31 August 2016.

Justice Basten stated at paragraph 4 “no error has been identified in the judgment of the primary judge, Fagan J. If the primary judge erred in any respect, it was according too much credence to the complaints of the Appellant. In fact, the appellant’s case was based on four inter-related assumptions which were inadequately explored.”

Furthermore, it is important to note what Justice Basten also stated in his judgment:-

“Where the Proper Officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss.

 However, when the error is said to have resulted in the failure of the Proper Officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least were the bona fides of the Proper Officer was not in question, would have strong reasons for rejecting the application on discretionary grounds.”

This case is important for legal practitioners to consider when challenging a Proper Officer’s decision to refer an assessment to a review panel. In view of what has been stated above by Mr Justice Basten, a solicitor acting for a claimant in such circumstances would need very good reasons to bring application for judicial review to set aside the decision of the Proper Officer to send the matter for review.

It would be more prudent to allow the matter to proceed to the review panel and depending on the outcome of their decision, decide whether or not an application for judicial review is warranted.

At Beilby Poulden Costello, we are able to assist our clients in regard to any application for judicial review and will ensure any application to the Supreme Court has good prospects for success.

 

 

 

 

 

CAN YOUR PERSONAL INJURY CLAIM CONTINUE IF YOU DIE?

When a plaintiff dies before their claim is finished, can the estate still recover damages and, if so, what damages are available?

Motor Accident Compensation Lawyers

Since the Law Reform (Miscellaneous Provisions) Act 1944, a damages claim can be bought on behalf of the estate by the personal legal representatives to recover damages that the deceased would have received.

Only economic loss damages are recoverable in the estate action.  That is:

  1. Medical and hospital expenses incurred before the death;
  2. Damages for gratuitous care services provided prior to the death that were both received and provided by the deceased to other people;
  3. The loss of earning capacity prior to the date of death; and
  4. Funeral expenses.

The estate cannot claim damages for lost earning capacity past the date of his or her death (that is, during the “lost years”) and exemplary or punitive damages are not available.

General damages, otherwise known as non-economic loss damages, also do not survive to the estate.  There is however an exception in respect of dust diseases.  In that case, general damages including damages for loss of expectation of life can be awarded but only if the proceedings for the damages have been filed during the lifetime of the deceased.

The injured person is usually a very important witness in their own claim.  Therefore, it is not only the availability of the remedy that is important but you will need to carefully consider whether the case can be proved without that evidence being available.

Scott Hall-Johnston

Beilby Poulden Costello

What Goes On At BPC

I thought it might be a good time to acquaint some of our readers with the type of work that we are doing here at BPC Law.

Medical Compensation Claim

When people talk about compensation Lawyers they think injuries at work and on the road.  We are certainly a major law firm in compensation claims of those types.

We do however act in a wide variety of matters and I thought it might be useful to give readers a note of some of the cases we are currently involved in:-

  • We are acting for a lady who suffered severe injuries when she fell on a boat whilst whale watching in the Great Barrier Reef.
  • We are acting for the family of a baby suffering from Cerebral Palsy which we argue was caused due to asphyxia during the birth process which could have been prevented had the doctors paid greater attention.
  • We are acting for a young man who unfortunately lost one of his limbs after an explosion of a keg on licensed premises.
  • We are acting for a client who suffered injury when she was directed by her personal trainer to undergo a type of fitness training that was beyond her capacity resulting in her suffering a very significant hip injury.
  • We are acting for a lady who suffered a leg injury when she slipped and fell on Council premises which had become very slippery as a result of patrons bringing wet umbrellas and shoes through the entrance. The Council employees did not provide any warning signs or matting to provide a safe floor surface.
  • We are acting for an English gentleman who was riding on a donut behind a speed boat off an island in Queensland when he was thrown outside of the wake and became entangled in the donut causing him injury.
  • We are acting for a young lady who was playing in an indoor netball competition. The court had previously been used a gymnastics organisation who had left chalk on the floor causing her to slip and suffer an injury to her knee which required surgery.
  • We are acting for a well known performer who suffered a bowel perforation following a simple hospital procedure. It was not recognised in time leading to her getting sepsis which has had serious consequences to her overall health.

These examples are given to illustrate that there are wide ranging circumstances in which a client may have an entitlement to compensation.  We are experienced in all areas of public liability and medical negligence and would be happy to deal with any enquiry on the usual “no win, no fee” basis.

Courtenay Poulden

24 March 2017

WHIPLASH ASSOCIATED DISORDERS

“WHIPLASH ASSOCIATED DISORDERS – (WAD)”

A soft tissue injury occurs due to trauma to the human body when the tissues that connect, support or surround other structures and organs of the body are damaged.  By definition, soft tissue includes muscles, tendons, ligaments, fascia nerves, fibrous tissues, blood vessels and synovial membranes.

Auto Compensation claim

Usually, the spine and the shoulders are often affected in this type of injury.

Immediate disability does follow injury to ligaments and healing, from a functional view point is seldom perfect.

Since soft tissue injury always heals with scar or fibrous tissues, it lacks the viability or elasticity of the original tissue, therefore soft tissue is always weaker after injury (whilst bone will be strengthened by scar tissue).

On occasions, some medico legal doctors imply that a whiplash associated disorder can be detected using an MRI scan.  There is research to the contrary.

There was a study conducted in Sweden in 1994 where 39 consecutive cases of whiplash injury of the neck were examined clinically and with an MRI at a mean of 11 days after trauma.

26 of these showed changes on MRI with disc lesions in 25 cases, 10 of which were classified as disc herniations and a muscle lesion in one case.  All of these persons had neck pain or headache.

29 cases had neurological deficits, mostly sensibility disturbances.  22 of the 26 cases with pathological MRI had neurological signs, as had 7 of the 10 cases with disc herniation.

The relationship between the MRI findings and the clinical symptoms and signs was poor.

The study was undertaken to evaluate if MRI within two days of a motor vehicle accident could reveal pathology of importance for understanding long term disability after whiplash neck sprain injuries.

As part of a prospective study, cervical and cerebral MRI was performed on 40 neck sprain patients with whiplash injury after car accidents.

The imaging was done with two days of the injury to make sure that any neck muscle bleeding, oedema or other soft tissue injuries could be detected.

The MRI findings from the patients were both correlated to report symptoms six months after the accident and compared to a control group of 20 volunteers.

The MRI of both the brain and neck revealed no significant differences between the patients and the control group.

When the patients were grouped according to the main MRI findings at intake and compared according to the development of subjective symptoms reported by the patients, the only significant difference was more headaches at six months in the groups with disc pathology or spondylosis when compared to the group with no pathology.

MRI scan within two days of the whiplash neck sprain injury could not detect pathology connected to the injury nor predict symptom development and outcome.

In conclusion, pain residuals, which may last for months or even years, may be due to the scar tissue which has replaced the previous normal tissue.  Its inelastic quality can cause pain with certain movements.  The lengthy period of healing may be explained by the fact that it takes a long time for soft tissue to heal and mend.

D R Ford

10 March 2017

Nervous Shock Claims

WORK PLACE INCIDENT AT BARANGAROO – NERVOUS SHOCK CLAIMS

BPC Lawyers have represented vast numbers of plaintiffs in successful nervous shock claims pursuant to the NSW Civil Liability Act 2002 since its inception.

Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

If a genuine psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.

The Civil Liability Act defines a “close member of the family” of a victim to include a parent of the victim or other persons with parental responsibility for the victim, or the spousal partner of the victim, or a child or step-child of the victim or any other person for whom the victim who has parental responsibility. The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters.

A “spouse or partner” is defined as a husband or wife or a defacto partner.

The Diagnostic Statistic of Psychiatric Injuries is used by qualified psychiatrists to report to the Courts on behalf of parties to litigation in relation to the effect that a particular event has had upon any witness to an event causing psychiatric injury.

Strict time limits apply in relation to bringing a claim for damages for personal injury, including psychiatric injury, pursuant to the Civil Liability Act. A three year limitation period is imposed in relation to commencement of court proceedings, which runs from the date of the relevant event.

It is expected that in relation to the unfortunate death of an innocent worker at Barangaroo in March 2017, there will be a coronial inquest that will shed light upon the circumstances that led to the death.

The findings of a coroner should not be pre-empted.

Any persons who have witnessed, and been psychologically affected by the unfortunate incident at Barangaroo are advised to consult medical practitioners for appropriate treatment.

Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. The court process usually endures for beyond 18 months if matters are incapable of settlement.

The Civil Liability Act is designed to provide appropriate compensation to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.

The Courts, quite rightly, do not readily entertain cases that do not involve genuine psychiatric injury, as was intended by the legislators when the Civil Liability Act NSW 2002 was enacted.

Beilby Poulden Costello has acted for injured plaintiffs for in excess of 35 years.

If you or one of your loved ones is affected by psychiatric injury which remains unresolved despite medical treatment, please contact one of our accredited specialists in personal injury law in NSW for a free initial consultation.

Beilby Poulden Costello act in nervous shock claims on a “no win/no fee” basis.

In cases involving serious injury or death, there will usually be a coronial inquest following police investigations and WorkCover/WorkSafe investigations.

Beilby Poulden Costello Lawyers have assisted family members to protect their compensation rights by appearing in numerous coronial inquests, including those involving construction site accidents and deaths.

Beilby Poulden Costello take very seriously their duty to only bring cases on behalf of persons in circumstances where there is at the very least, a reasonable prospect of success, which is consistent with our obligations pursuant to the Legal Profession Uniform Law.

CIVIL CLAIMS AGAINST THE POLICE

 

It is acknowledged that the job of a police officer is very important to society and police officers deal with extremely difficult situations. Police have numerous responsibilities                                                                   and powers. However, circumstances sometimes arise in Lawyerswhich physical force is used unnecessarily causing injury. These circumstances may give rise to a claim against the police if the physical force or conduct was not warranted.

The law needs to allow police officers to perform their duties without the concern of legal claims.  However,  abuse of power must also be avoided and victims must have appropriate rights in circumstances where there has been an overreaction or abuse of power.

The State of New South Wales will indemnify police officers who are found liable of a tortious act causing injury, provided that the police officer was acting within the scope of his/her employment at the relevant time. If the police officer was acting outside the scope of employment, the ability to pursue a claim against the State of New South Wales is difficult and the injured party may need to pursue the police officer personally. In such circumstances, a police officer may have insufficient financial resources to satisfy any judgment.

Pursuant to Section 6 of the Law Reform (Vicarious Liability) Act 1983, members of the New South Wales Police Force are deemed to be persons in the service of the Crown. Pursuant to Section 8 of the Law Reform (Vicarious Liability) Act 1983 and the Crown Proceedings Act 1988, the State of New South Wales is vicariously liable for torts committed by persons in the service of the Crown. An individual police officer may be joined to the proceedings if the Crown denies vicarious liability for the alleged tort.

BPC Lawyers recently acted for a plaintiff in a claim against the State of New South Wales arising from the conduct of police officers. In this case, a minor incident had arisen during a night out. Our client was not directly involved in the incident.  However, she was manhandled by a number of police officers after questioning the conduct of police. Our client did not consent to being touched by any of the police officers.  However it was alleged that she was assaulted by male police officers using excessive force. Our client was forcibly walked to a police vehicle and pushed face down onto the bonnet of the vehicle.  This caused her chest and head to collide with the vehicle. Our client was then handcuffed. After being handcuffed, our client was forced face first onto the concrete footpath. Our client was then physically escorted to a police vehicle (a caged truck) and placed inside the vehicle. She was then detained at a police station for approximately 4.5 hours until she was released from custody.

The plaintiff pursued a claim against the State of New South Wales for assault, battery and false imprisonment arising from the conduct of the police officers involved. The plaintiff claimed compensatory damages, aggravated damages and exemplary damages from the State of New South Wales.

Legal proceedings were commenced in the District Court of New South Wales.  Settlement was reached between the parties prior to trial. The plaintiff received an amount of damages to compensate her for the assault/battery, false imprisonment and damage to her reputation.

Our client claimed aggravated damages on the basis that:-

  1. She was insulted in front of relatives, friends and onlookers;
  2. She was assaulted and imprisoned on a busy street;
  3. The police officers involved were bigger and stronger and she was unable to adequately defend herself;
  4. Other police officers stood by and watched without rendering assistance;
  5. Her imprisonment was both excessive and unnecessary;
  6. Her actions did not provoke or warrant the conduct of the police officers;
  7. Her imprisonment prevented her from going home to look after her family; and
  8. The police officers involved had failed to apologise to the plaintiff for their actions.

Our client claimed exemplary damages on the basis that the conduct of the police officers:-

  1. Was heavy handed, unnecessary and insulting;
  2. Was undertaken with complete disregard for the plaintiff’s rights, feelings and physical welfare;
  3. Was worsened as it was undertaken by experienced and paid police officers acting in stark indifference to their duties and obligations;
  4. Was outrageous, extreme and unlawful;
  5. Involved an abuse of police powers;
  6. Warranted exemplary damages being awarded to bring home to those responsible for the conduct of police officers, that police officers must be properly trained and disciplined to avoid such abuses;
  7. Warranted exemplary damages being awarded to reflect the disapproval of society of such conduct;
  8. Warranted exemplary damages being awarded to mark the Court’s condemnation and to act as a deterrent.

Obviously, each case is different and the conduct of police officers needs to be considered taking into account all of the relevant circumstances. The Courts have held that victims have rights of redress in circumstances where the conduct of police officers is excessive, unprovoked and unwarranted.

In the area of police misconduct, it is also possible to sue for malicious prosecution in circumstances where a person has been found not guilty by a Judge or Jury of a criminal charge or charges. However, such cases involve a high risk of failure. In summary, the plaintiff must prove the following four elements to succeed in a claim for malicious prosecution:-

  • That the prosecution was initiated by the defendant;
  • That the prosecution terminated in favour of the plaintiff;
  • That the defendant acted with malice in bringing and maintaining the prosecution; and
  • That the prosecution was brought or maintained without reasonable and probable cause.

In certain circumstances, a prosecution may be justifiably commenced however, if at some time prior to verdict, a prosecutor becomes aware of the plaintiff’s innocence and continues the prosecution, he or she can still be liable. These cases also require proof that the plaintiff has suffered some damage. “Damage” has been defined as damage being caused to the plaintiff’s reputation and/or personal property. Compensatory, aggravated and exemplary damages may be awarded in circumstances where malicious prosecution is established. Aggravated damages are commonly awarded to increase compensatory damages in malicious prosecution cases. However, the amounts awarded vary significantly depending on the circumstances of each case.

If there is strong evidence to support other torts such as false arrest, assault or battery, there may be little benefit in including a claim for malicious prosecution. This often saves a significant amount of time and legal costs as malicious prosecution actions require an exhaustive examination of the reasons for prosecuting and the evidence available for prosecution.

Kate Henderson

31 January 2017

Satisfactory Explanation For Late Motor Accident Compensation Claim

LATE MAKING OF CLAIMS UNDER THE MOTOR ACCIDENTS COMPENSATION ACT (1999):

REQUIREMENT FOR A “SATISFACTORY” EXPLANATION

 You should refer to our earlier article in relation to the making of late motor accident claims.  This paper

Motor Accident Compensationadds to the topic in relation to the need for an explanation not only to be full, but also to be satisfactory.

The High Court considered the meaning of satisfactory delay in Russo v Aiello [2003] 215 CLR.  At 463, Gleeson CJ said:

 

           “What would justify a reasonable person in a position of the claimant ‘experiencing’ a delay?  It is impossible to give an exhaustive list of possible justifications.  Delay in the onset of symptoms is one example; and as an example of some relevance to this case. It is to be noted that what the Act requires is justification for the delay; not demonstration of the delay caused no harm….The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it.”

In Walker v Howard [2009] NSWCA 408 the Court of Appeal (sitting as a bench of five) considered the case of the claimant who was suffering serious brain damage.  They suggested the case gives useful guidance as to the attributes the claimant that ought be considered when applying the objective tests under s.66(2) of the Act, that is the “reasonable person in the position of the claimant” test.

Firstly, the Court said that the position of a claimant with a disability includes that disability:

“….that placement of a fictional person in that position could be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable in the claimant’s position….The phrase ‘position of the claimant’ is not limited in terms of the personal or physical characteristics of the claimant. It connotes aspects of a place and circumstances relevant to the enquiry….. It can be acceptable that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the ‘position of the claimant’….. to the extent that the test requires the subjection of the reasonable person in the position of the claimant to their circumstances in the full explanation and a “justification” of experiencing them, such a constraint demands normative evaluation”.  

Young, JA noted that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant includes the age, sex and capacity of the claimant as well as her or her cultural background.

In Figgliuzzi v Yonan [2005] NSWCA 290 the Court considered the earlier but similar incantation of the satisfactory explanation provisions in the Motor Accidents Compensation Act 1988 and held that that the explanation for the failure to lodge the claim within the time prescribed was not satisfactory because she had failed to obtain legal advice in a timely fashion.  McColl, JA makes clear in Figgliuzzi at [124] FF, the Act is one of many statutory schemes whereby the legislature has fixed definite time limits for the prosecution of civil claims because, “the public interest requires that disputes be settled as quickly as possible.” (CF Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 per McHugh, J).  Unlike other limitation provisions, however, those fixed by MA are not absolute.  The various authorities Her Honour collects in that judgment clearly “….demonstrate that a legislative concern with a prompt notification and timeous resolution of claims for damages arising out of motor vehicle accidents” and “what would constitute justifiable delays to be considered in the light of these legislative purposes”.   The majority held that determining whether a claimant has provided a satisfactory explanation involves a ‘normative judgment’. Arising from the accident, Ms Yonan had complimentary rights under the workers compensation and motor accident legislative regimes.  Ms Yonan who was employed by the Legal Aid Commission as a clerk offered as her explanation a belief that having made a claim for workers compensation she was not then able to claim damages under the motor accident regime.

At [95] Tobias JA, said:

Accordingly, the critical question concerns behaviour of a reasonable person in a position of the [claimant] who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because the accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act.  Would that reasonable person in the respondent’s position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practise or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?”

Santow JA, did not accept the view of the majority that it was unreasonable for her not to have sought legal advice and to have relied upon her ‘bush’ legal analysis. In dissenting, Santo JA said at [24]:

“For a person to have a civil claim under two regimes, namely workers compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive.  Therefore she did not feel the need to verify her belief when that belief was ex-facie reasonable does not to my mind render that belief unreasonable.  A reasonable person in [the claimant’s] circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief intrinsically irrational, that her own employer by its actions had implicitly confirmed.  Her employer did so by requiring her to complete a workers compensation claim form.  The Commission neither then, nor subsequently, informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work.  While [the claimant’s] ignorance of the law did not of itself excuse her from complying with the statutory time period,…..nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”.  I would therefore have reached the same conclusion as the primary Judge in this matter, applying the reasonable person test.”

More recently, Colefax DCJ in the unreported decision of Annetts v Bone & Anor, 04 December 2014 made reference to the following normative considerations:

(a)      The limited formal education of the plaintiff;

(b)      The knowledge or belief of the plaintiff that his condition was caused by the collision;

(c)      The fact that the plaintiff took little time off work because of the injury for the first ten years after the accident;

(d)      That the plaintiff was not out of pocket in relation to expenses associated with treatment of his injury because of the payments of workers compensation;

(e)      The plaintiff had a broad knowledge of a separate method of compensation for injuries sustained in the motor vehicle accident other than workers compensation;

(f)      The separate methods of compensation not only had time limits but also thresholds, thresholds which did not appear to have been exceeded until ten years after the accident;

(g)      The separate method of compensation provided that if proceedings were commenced and lost an adverse costs order would be made and could be enforced against the plaintiff;

(h)      Finally, a serious deterioration in the plaintiff’s condition ten years after the accident.

In Gedel v Tihic [2012] NSWDC 87, Leavy DCJ, considered the explanation offered by a plaintiff who upon medical advice did not initially believe his injuries to be serious.  His Honour said:

A reasonable person in the circumstances of the plaintiff would have more likely put up with a measure of discomfort experienced by the plaintiff…. and would most likely to have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve.”

And in relation to the delay following the plaintiff’s initial consultation with his solicitors:

In that regard, he was also required to come to grips with flow-on effects of these matters concerning his employment and his financial obligations generally as well as very real and worrying concerns over his mortgage liabilities and commitments… It is therefore not surprising and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result became to a degree un-focused and disorganised concerning his personal affairs.”

The reasonable person test involves a degree of objective analysis which may vary according to assumptions made about the person.  Further, the position of the claimant is not limited to merely personal or physical characteristics, but has been said to involve both injuries suffered in the accident (including any disabilities suffered) and the circumstances relevant to the delay.  The test in Walker is an objective test that is whether a reasonable person would have been justified in experiencing the delay and involves a normative evaluation of the claimant’s behaviour in this regard.   What is required is justification of the delay, not demonstration that the delay caused no harm or prejudice to the insurer.

In Brierley v Ellis [2014] NSWCA 230 (17 July 2014), the Court of Appeal held that where there was no objection made by the insurer to evidence being produced by way of statutory declaration, and no contradictory evidence is tendered, the evidence should be given no less weight than if the information contained had been provided by way of oral evidence.

Scott Hall-Johnston

Beilby Poulden Costello

Liability For Passenger Death Or Injury On An Airplane

BPC Aviation Personal Injury Section

Liability for passenger death or injury on an airplaneAviation Compensatipon lawyers

The liability of an airline carrier for the death or injury of an Australian passenger on an airline flight is governed by an international convention known as the “Montreal Convention” 1999. Passengers of other nationalities may be covered by another convention, known Warsaw Convention 1929.  It is each passenger’s “place of departure”                 and final “place of destination” which determines which treaty applies.

For example if a passenger was flying from Amsterdam in Holland to Sydney, Australia via Kuala Lumpur in Malaysia then because each of the Netherlands, Malaysia and Australia are all parties to the Montreal Convention, that  convention applies for anyone suffering death or injury.

Under the Montreal Convention, liability arises for the aircraft carrier in the circumstances set out in Article 17:

The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course in any of the operations of embarking or disembarking”.

The important point to note here is the requirement that the deaths or injury was caused by an “accident”.  That term is not defined within the convention itself, but the definition has been considered by courts around the world. The authoritative definition of the term is now widely accepted to have been pronounced by the Supreme Court of the United States in the case of Air France v Saks 470US392 [1985] in which O’Conner J. said that liability arises when; “a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”.

Although his Honour was referring to the Warsaw Convention, the same text appears in the Montreal Convention, and it is generally considered to have the same meaning.

Extent of liability

Under the Warsaw Convention liability was capped. This is not the case under the Montreal Convention, where liability is potentially unlimited. There are some practical controls on this, however as Article 21 of the Montreal Convention splits liability of the carrier into two “tiers” and slightly different rules apply in each tier.

In the first tier, which applies for all compensation amounting to less than 113-100 Special Drawing Rights (which is about Australian $183,500.00) the carrier cannot exclude or limit its liability. This means that the passenger need not prove that the carrier was negligent (but, of course, must show that requirements of Article 17 are met, including the event was “an accident”). It also means the carrier is liable even if it was not negligent.

In the second tier, for all damages higher then 113-100 SDRs the carrier is liable unless it can show it was not negligent. This reverses the traditional onus of proof normally it is the Plaintiff (or person making a claim) that must show the Defendant (the person the claim is made against) was negligent.

Solely due to the negligence or wrongful act of a third party?

In the second tier, a carrier may also escape liability if it can show the “accident” was solely due to the negligence or wrongful act or emission of a third party.

Where can claims be made?

Claims against carriers under the Montreal Convention can be made in anyone of “5 forums” being:

  1. The domicile of the carrier i.e. Malaysia.
  2. The carrier’s principal place of business; i.e. Malaysia.
  3. Where the carrier has a place of business through which the contract of carriage was made.
  4. The passenger’s place of destination.
  5. The passenger’s principal place of residence, but only if the carrier operates services to that jurisdiction and the carrier conducts business from leased or owned premises there.

The BPC Aviation team has access to an international network of aviation consultants and aviation lawyers.

Authors:

Courtenay Poulden – Partner

David Ford – Special Counsel

A PRACTICAL GUIDE TO THE NATIONAL DISABILITY INSURANCE SCHEME AND COMPENSATION

One of the regular concerns we have as personal injury lawyers is trying to give advice to plaintiffs (and indeed Compensation Courtdefendants) at settlement conferences as to what the net position will be taking into account such matters as Medicare and Centrelink refunds.  It is often necessary to make some educated guess as to what Centrelink may require by way of a payback or what the preclusion period for receiving benefits may apply in the future.

In matters involving catastrophic injury, an assessment of the compensation reduction amount pursuant to the NDIS (CRA) will also be fundamental.  Clearly in cases where there is a verdict or a readily identifiable component for care, the tables will make it fairly easy to work out.  What will be more difficult is the cases at the margins and more importantly, those cases where there is a need to compromise on account of liability risks.

I am told that a support coordinator will be available for discussion.  The real difficulty becomes that a practitioner will have to satisfy her/himself that the figure is sufficiently certain to advise on as it is unlikely a binding decision will be made by a support coordinator at that stage.

In cases where contributory negligence is determined the provisions of Section 107(3) will apply to the CRA.  What happens however when a Mediation is taking place and there is no reliable agreement as to what amount of contributory negligence is being applied.  I understand that NDIS will, as Centrelink always has, be wary of arrangements between parties to settlements identifying apportionments that may ultimately have the impact of reducing a payback.  I have, on a number of occasions, on a quite proper basis, abandoned a claim for economic loss knowing that if that claim was unlikely to be successful and remained part of the particulars a Centrelink payment payback would be obligatory.  In my experience Centrelink has treated such arrangements with some suspicion.

In these days where alternate dispute resolution is encouraged more than ever, parties to personal injury litigation find themselves in settlement conferences or Mediations on a regular basis.  It is all the more important in cases of catastrophic injury where the costs associated with the trial are considerable.

Another common experience that arises in cases where a Plaintiff brings compensation proceedings against a non employer in circumstances where workers’ compensation benefits have already been received and must be paid back.  It is common when there are liability risks in the common law proceedings for there to be discussion between the Plaintiff’s lawyer and the workers’ compensation insurer in relation to a potential discount of the amount to be refunded particularly where it also operates to remove the workers’ compensation insurer’s obligation to provide further benefits.

The introduction of the Operational Guideline brings forward a whole new world of pain.  For those who share my dislike of figures and formulas it could become overwhelming.

The position will be relatively clear when the NDIS component can be readily identified such as in cases where there is a verdict or where the NDIS component is readily identifiable in which case table 2 of the annexed Guidelines can be followed.

Where that is not the case then table 4 of the Guidelines applies.

It might be worth noting at this point that Section 107(3) of the National Disability Insurance Scheme Act provides that in circumstances where a Consent Judgment apportions liability, the CRA is reduced to the extent of that apportionment.

Let’s assume for the purposes of this discussion that Jane Smith is alleging an entitlement to damages on account of a failed neurological procedure.  There are significant conflicting expert opinions and it is essentially an “all or nothing” case.  Let’s further assume that the sum of $6,000,000.00 is the entitlement of Jane at full value.

Jane is represented by a leading Senior Counsel who has advised her that her prospects of success are no better than two thirds and that Jane should accept any offer of $4,000,000.00 inclusive or better.

If we follow Jane’s table we see that one-half of her settlement ($2,000,000.00) would be used to form the basis of a preclusion from receiving Centrelink benefits (about 35 years).

Picture then Senior Counsel advising at the Mediation that whilst the matter is worth $6,000,000.00, a proper compromise for the risk of liability is one-third and a settlement is achieved for $4,000,000.00.  There is no apportionment in the sense that Section 107(3) envisages.  It seems to me that following Jane’s story the following figures would apply:

Amount of compensation                                                            $4,000,000.00

Step 1.2 – reduction for Centrelink and Medicare                           $11,380.00

$3,988,620.00

In accordance with Step 1.3, one-half of the settlement ($2,000,000.00) would be deducted on account of the Centrelink preclusion period of 35 years.  The amount calculated in accordance with Step 1.3 in this instance is therefore $1,988.620.00.

Continuing on to Step 2, the amount of anticipated benefits under the Scheme is valued at $1,960,000.00.  Following the subtraction in Step 3.1 for amounts previously paid by Jane the remaining figure or CRA is $760,000.00.

Let’s now return to the compromised settlement of $4,000,000.00.  Let’s assume further that legal costs of $500,000.00 were deducted leaving a net settlement of $3,500,000.00 less Centrelink and Medicare or $3,488,620.00.  We know that the care needs total $1,960.00.00 but the entitlement to that care under the Scheme will be reduced to the extent of $760,000.00 (about 40% of care will be underfunded).  We also know that there will be no Social Security entitlement for 35 years.

It will be seen how care and attention will have to be paid to the commencement and resolution of proceedings in these circumstances.  Take out the underfunded care and the loss of Social Security and even a substantial settlement calls for close inspection

The Legislation provides a mechanism whereby the Scheme itself can compel a participant to pursue compensation (see NDIS Act, Ch 5).  Presumably the subrogation of rights will be used sparingly and regard will be had to advice that a participant has otherwise received.

Another interesting question will be how the Scheme applies the hardship provisions and in particular what level of satisfaction the Scheme operator will require of a genuine compromise and apply a reduction to the CRA accordingly.  It has been my overwhelming experience that Government bodies (such as for example Centrelink) have been suspicious of Plaintiff’s lawyers claiming that Social Security repayments should be reduced on the basis of a compromise of liability.

Courtenay Poulden

6 December 2016