Category: News & Media

Why Your Retirement Age Can Have a Big Impact on Compensation Payout

bpc-lawyers-retirement-age-compensationOne of the key factors when determining compensation payout is the expected age of retirement for the injured person. 

When calculating compensation settlements, the expected age of retirement is 67 years of age. Anything beyond 67 years must be submitted for review, explaining why you believe you (as an injured claimant) should be expected to work past 67 years under your expected life path before the incident.

CASE BACKGROUND –  Allianz Limited v Habib & ORS (2015) NSW SC1719

A scenario was recently resolved in the Supreme Court where Allianz, the CTP Insurer, overturned a previous decision to award compensation to an injured claimant based on a retirement age of 70. It was found that there was no substance or justified reason for the claimant to receive compensation past the expected age of 67, and thus the decision was overturned. Read below for more details.

There was a recent decision in the Supreme Court of NSW where His Honour Mr Justice Beech-Jones set aside the decision of a Claims Assessor because of a failure by the Claims Assessor to state (and to the extent necessary explain) the claimant’s age of retirement.

The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 30 January 2013. At that time, the plaintiff sustained an injury to his lower back in the accident. The CTP insurer, Allianz accepted liability for the claim. The Claims Assessor issued a certificate and reasons for decision on 14 May 2015 and awarded damages in favour of the claimant in the sum of $221,586.00 plus schedule legal costs.

In the reasons, the Assessor awarded the claimant an amount of $160,000.00 for future economic loss and the sum of $36,500.00 for future commercial care.

The CTP insurer sought a judicial review of the assessment on a number of grounds and in particular sought to set the decision aside because the calculation of future economic loss was projected to an age of retirement of 70 years.

There was a document headed, ‘Claimant’s Calculations’ which set out the schedule of damages claimed by the claimant.

This document had been served upon the CTP insurer.

However, in the Assessor’s reasons, there was no reference made to this document.

Allianz in their submissions stated that they had never agreed to the assumption the claimant would continue working until the age of 70.

In most cases, the parties now agree the anticipated working life of a claimant is until the age If a Judge or Claims Assessor is to award compensation for loss of earnings beyond the age of 67, then it is incumbent upon that Judge or Assessor to provide adequate reasons as to why he or she has awarded damages for that further short period of working life.

The decision is worth reading as all the other grounds of review which were submitted by Allianz were rejected by His Honour.

Accordingly, it is important when seeking to have damages for economic loss beyond the age of 67 years to set out in detail for submission to the Judge or the Claims Assessor the reasons why you wish to submit the claimant had intended to work beyond the age of 67 years.

But for the accident, you should submit the claimant was in good health, had a secure employment or worked in a profession where working beyond the age of 67 years is more the norm than the exception and if possible, provide corroborating evidence from either fellow workers or members of that particular profession.

complimentary, free consultation to discuss your claim and determine whether you have a genuine claim for compensation.

David R. Ford, Special Counsel

Is it Possible to Claim Motor Accident Compensation If No One is at Fault?

When you’ve been in a motor vehicle accident as a result of the negligence of another driver, there is generally a clear entitlement to compensation for injured drivers and passengers.

But what happens when someone gets injured in a motor accident, and no one is to blame?

 

There was a recent decision in the District Court at Sydney involving an interpretation of the “blameless” accident provisions of the Motor Accident Compensation Act 1999 (NSW). The case was Garry Connaughton –v- Pacific Rail Engineering Pty Limited and was heard on 12 February 2015. The case was determined by Her Honour, Judge Norton SC.

CASE BACKGROUND – Garry Connaughton –v- Pacific Rail Engineering Pty Limited

The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 13 July 2011. At that time, the Plaintiff was a driver of a motor vehicle which was involved in a single vehicle accident involving a tree which fell onto the road. The Plaintiff, Garry Connaughton, was driving his truck in a northerly direction on Mount Ousley Road at Mount Ousley at approximately 10:30am when a roadside tree fell and struck the cabin of the truck, which then ran out of control but subsequently came to a halt. The Plaintiff was badly injured in the accident and injury was conceded by the Insurer and there was no issue regarding contributory negligence.

The Plaintiff had little recollection regarding the accident. He was driving his truck in the curb side lane of the road and his first recollection was a man yelling out and his last recollection was driving up the road and there being nothing on the road in front of him.

The Judgment is quite detailed but in summary, Her Honour was asked to decide three questions:

  1. Has there been a motor vehicle accident?
  2. If so, is it a blameless accident?
  3. Is the Plaintiff excluded from recovery under the blameless accident provisions by operation of Section 7E in relation to drivers?

in summary, Her Honour found there had been a motor vehicle accident and it was a blameless accident. Furthermore, the Plaintiff was not excluded from recovery under the blameless accident provisions by operation of Section 7E as she found the Plaintiff did not cause this accident. His driving on the raod was no more than a background fact which explains why he was in position where he could be struck by a tree. Plus the driving of the Plaintiff was nothing more than “the mere occasion of the injury”.

Futhermore, at Paragraph 73 Her Honour stated:-

“73. Looking at the words of the Section and bearing in mind the words used in the second reading speech (of Parliament) I find that even under the extended definition of causation of Section 7E there was no act or omission on behalf of the Plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean the driver in single vehicle accidents are deemed to have caused that accident.”

Accordingly, in summary, there was a verdict entered in favour of the Plaintiff which means liability was wholly determined in his favour against the Defendant Insurer. There was a further order made by Her Honour that damages are to be assessed.

In the end, it was found that because no act by the man who suffered injury in his blameless motor accident, either voluntary or involuntary, could have caused the accident, with a verdict in favour of the plaintiff delivered to assess his damages from the insurance company.

If you have been in a motor accident, regardless of whether it is negligent or blameless, we will be happy to offer a complimentary, free consultation to discuss your claim and determine whether you have a genuine claim for compensation.

David R. Ford, Special Counsel

Update: The Truth About Trasylol

Following the airing of the news and current affairs program, Sunday Night, on 12 October 2014, Beilby Poulden Costello Lawyers have received a number of enquiries from people wondering whether the administration of Aprotintin (known commonly as Trasylol) may have contributed to the loss of a loved one or resulted in stroke, kidney failure or heart attack.

We encourage all those who believe they may have been affected by the administration of Trasylol to make contact with our firm. There are significant cost benefits associated with being a client of a firm that represents other clients in similar circumstances. These benefits arise as a result of the sharing of costs associated with investigating proceedings.

If you or a loved one suspect Trasylol could be responsible for death, stroke, heart attack or kidney failure, you should act quickly. Please contact Beilby Poulden Costello Lawyers on 8280 6900 to discuss your case with a specialist solicitor or email: info [at] bpclaw.com.au.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Medical Negligence & the Inquest into the Death of Luke Wood

We are fortunate in New South Wales to benefit from some of the most highly trained medical practitioners in the world. However, incorrect diagnoses and negligently performed medical procedures do sometimes occur. The consequences can be catastrophic.

The recent Inquest into the death of Luke Wood, a Sydney bodybuilder and former Australian bodybuilding champion, is a timely reminder of this fact.

On August 20, 2011, Mr Wood underwent a kidney transplant. Three days later, on August 23, his body began to show symptoms that it was rejecting the kidney. On August 26, despite the risk of kidney rejection, he was discharged in circumstances that are reported to have been allegedly premature.

Ultimately, on August 31, 2011, Mr Wood was rushed to the Hospital after he collapsed at home. He died at Sydney’s Westmead Hospital following cardiac arrest which was reportedly caused by the “massive haemorrhage” in his abdomen following his transplant. With the Inquest continuing, the circumstances of his death are not yet fully apparent. Evidence, however, given by his treating practitioners  is reported to have indicated that not only was he required to wait over four hours for a CT scan, but that the emergency physicians that treated him did not have access to his complete medical records as they were locked in a secured room and inaccessible.

The Inquest continues.

If you or a loved one has suffered as a result of medical negligence, you should contact Beilby Poulden Costello Lawyers on 8280 6900 to speak with a specialist in medical negligence.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

BPC Lawyers successful in the High Court of Australia

Rhiannon Gray by her Tutor Kathleen Anne Gray v Richards [2014 HCA 40]

On 15 October 2014, the High Court of Australia unanimously allowed, in part, an appeal from the New South Wales Court of Appeal in respect of the methodology to be used to calculate damages for fund management. This is an extremely important decision for severely injured plaintiffs in relation to the calculation of damages for fund management.

Our client sustained a traumatic brain injury as a result of a motor vehicle accident causing significant disabilities, a need for constant care and an incapacity to manage her own affairs. Proceedings were commenced against the driver of the motor vehicle claiming that he was liable in negligence for her injuries. Those proceedings settled on terms that required the CTP insurer of the defendant’s vehicle to pay damages in the sum of $10,000,000.00 plus an amount of damages to be assessed to cover expenses associated with managing the settlement funds (the fund management damages).

Our client was declared incapable of managing her own affairs by reason of her severe brain injury and a private trustee was appointed to manage her estate pursuant to legislative requirements in New South Wales. The private trustee charges management fees on the whole of the funds under management including the settlement monies and the fund management damages. This is a typical commercial arrangement in the marketplace.

In 2011, Justice McCallum in the Supreme Court of New South Wales determined that the fund management damages should include an amount to offset the cost of managing the fund management damages and a further amount to offset the cost of managing the fund’s predicted future income. These amounts were awarded on the basis that the fund management damages and the predicted future income of the fund would need to be managed and would therefore attract their own management charges. The CTP insurer appealed this decision and the New South Wales Court of Appeal reversed the decision of the primary judge ordering that an amount of damages for the cost of managing the fund management damages and the fund’s predicted future income should not be awarded.

Beilby Poulden Costello was successful in obtaining special leave to appeal to the High Court of Australia. On 15 October 2014, the appeal was allowed in part. The High Court held that the New South Wales Court of Appeal had erred in deciding that no allowance should be made for the cost of managing the fund management damages, but was correct in deciding that no amount should be made for the costs of managing the fund’s predicted future income.

This is an extremely important decision for cases involving severe injuries which render a person incapable of managing their own affairs. The High Court has unanimously held that an injured person is entitled to recover costs associated with management of damages awarded for the purpose of managing all funds under management. Pursuant to this decision, an incapacitated plaintiff is now entitled to recover costs associated with managing the component of damages which has been awarded to meet the cost of managing lump sum compensation recovered by way of damages. In this case, it was held as follows:-

The Court’s concern is to ensure that the plaintiff’s actual loss is compensated. There is, for example, no scope for the Court to say that the amount is simply ‘too much’ as a matter of intuition or impression if the plaintiff has no practical ability to bargain for a lesser charge.”

The High Court also stated as follows:-

                  “It is well settled that ‘the common law does not permit difficulties of estimating the loss in money to defeat an award of damages’ by way of compensation for loss actually suffered.”

This decision of the High Court unanimously determines the methodology to be adopted when calculating damages in respect of fund management. The High Court has held that fund management damages include the cost of managing the fund management component of an injured person’s damages consistent with the principle of “restitutio in integrum”.

This case summary is provided by Kate Henderson, a senior solicitor and accredited specialist in personal injury law at BPC Lawyers. Kate acted on behalf of the plaintiff in the Supreme Court of New South Wales, the New South Wales Court of Appeal and High Court of Australia. Kate has a special interest in catastrophic injury claims. For more information or to speak with Kate, or any of our specialist lawyers, please contact us on (02) 8280 6900 or kate@bpclaw.com.au

 

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

The Dangers of Sydney Roads; Car, Bus and Truck Accidents

The recent spate of motor vehicle accidents in New South Wales, particularly those involving trucks and buses, is a reminder of the dangers associated with travelling on Sydney’s roads.

Remarkably, an accident on 13 October, 2014 in which two buses (one carrying school children) made heavy contact, did not result in any fatalities. The collision did, however, initiate a dangerous sequence of events, whereby the school bus lost control and careered into five passenger vehicles causing injuries to the drivers and passengers.

Unfortunately, accidents such as these occur all too often. Tragically, such accidents often result in death or injury through no fault of the injured party. Families can be left with the loss of the primary earner or caregiver or an injured person can be left permanently incapacitated, unable to return to work and provide for themselves or their family.

It is not only those that are injured in motor vehicle accidents that have legal rights, but also those that are left behind following the death of a loved one. Such compensation is provided for by the Compensation to Relatives Act. In order to explore your entitlement to compensation, you must act quickly. Strict time limits apply following car, truck and bus accidents.

Contact Beilby Poulden Costello Lawyers on (02) 8280 6900 for a free, no obligation discussion with an Accredited Specialist in Personal Injury Law.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

The Truth About Trasylol

Considered a “wonder drug” and designed to prevent excessive bleeding during surgery, Trasylol was administered to thousands of unsuspecting Australians over the course of some 35 years. At $1,000 per dose, it netted German pharmaceutical giant, Bayer, hundreds of millions of dollars.

There was a lethal catch though; the drug can cause an increase in the rate of heart failure, an increase in the instance of kidney failure and is said to have increased the risk of stroke by 181%. These were risks not posed by the cheaper alternatives. Recent allegations (including a TV item on Sunday Night) suggest that, despite Bayer’s own studies revealing this increased risk, the drug remained on the market and Bayer allegedly supressed the negative results. It was not until 2006 when the author of one study became a whistle-blower, revealing all to the USA Food and Drug Administration.

In 2007, the drug was pulled off the market worldwide. It was too late, however, for the hundreds of families across Australia who suffered the loss of a loved one. Thousands more must now endure a lifetime of kidney dialysis and blood thinning treatment.

If you or someone you know has been affected by Trasylol, you must act quickly. Limitation periods apply. Please contact Beilby Poulden Costello Lawyers on 8280 6900 to speak to one of our medical negligence specialists and to find out whether you are entitled to compensation.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Cross-Examination: Making Life Easier in the Witness Box

I hope for your sake that you never have to be cross-examined; it is never an easy or pleasant experience.  Questions are often confusing and repetitive and it is difficult in the moment to determine exactly the right words to use.  I have been required to give evidence on several occasions and have never enjoyed the experience.

There are however a few simple rules that can make life easier.  For example, a witness should never use the term “never”.  Never is a very long time and our memory is not perfect, particularly under pressure.  Had Barry O’Farrell, received this advice he may not have lost his job.

I tend to think that Mr O’Farrell was being honest when he suggested that he had “never” received a bottle of Grange, but if he had not been so dogmatic and replied, for example, “I do not recall ever having been given a bottle of Grange”, he would not have been in the same predicament.

If you are likely to give evidence in the near future you should ask your lawyer about what to expect and how you should deal with questions as they arise.

If you would like to discuss the rules of giving evidence, you can contact our Scott Hall-Johnston, or one of the other lawyers at Beilby Poulden Costello, to discuss the other rules about giving evidence.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Permanent Impairment Benefits And The High Court Decision Of Goudappel

Permanent impairment benefits and the High Court decision of Goudappel

The good, bad and the ugly…

Timothy Driscoll LLM

 

  1. On 16 May 2014 the High Court of Australia full bench (5 Judges) handed down its decision.
  2. Unfortunately, the High Court unanimously upheld the Appeal and reversed the NSW Court of Appeal’s decision.
  3. They did so in very brief fashion – some 67 paragraphs (ironically the same number as the provision which at one time gave pain and suffering benefits!).
  4. The effect of this decision has caused much a headache for both an injured worker and WorkCover.
  5. For workers, the decision effectively confirms the following.
  6. Firstly, there are 2 sets of rules – those who made a claim for permanent impairment benefits before 19 June 2012 and those who did not.
  7. Depending on when your claim for permanent impairment benefits (if any) has been made will depend on which system applies to your permanent impairment claim

The Bad – The 2 Systems

 

  1. Specific claim for permanent impairment benefits before 19 June 2012

i.         Your are entitled to permanent impairment compensation for WPI or Permanent loss under Table of Maims (for pre 2002 injuries) above 0%

ii.         If you are 10% WPI or received $10,000 or more under the Table of Maims, you are entitled to compensation for pain and suffering between $1 and $50,000.

iii.         You can make as many claims as you want if/when you condition deteriorates.

 

  1. For Workers who have NOT made a specific claim for permanent impairment benefits before 19 June 2012

i.         You must reach 11% WPI to get any compensation

ii.         You can only make one claim, and

iii.         You cannot get any additional compensation for pain and suffering.

 

Which one applies to me?

 

  1. Only those injured workers who have made a specific claim for permanent impairment benefits in writing before 19 June 2012 come under the first system.
  2. Normally workers injured will fill in a standard claim. The ordinary/general claim form is not sufficient.
  3. So if you injured yourself at work after 18 June 2012 or made a claim for permanent impairment benefits (even if you made you original claim) after 19 June 2012 then you fall under the old system.

 

 The Ugly – The dilemma for WorkCover

  1. As I have previously reported, the NSW Court of Appeal reversed the NSW Workers Compensation Commission’s decision effectively finding that if you made any claim for compensation before 19 June 2012 then the old provisions applied.
  2. WorkCover, on this advice, implemented its policy that it would pay workers in accordance with this decision.
  3. However, now that the High Court has reversed this decision, the question remains as to how WorkCover is to deal with current claims on foot.

 

WorkCover’s Response

  1. If an injured worker and a Scheme agent (or the representatives) have agreed in writing to the payment of permanent impairment compensation in accordance with the NSW Court of Appeal’s decision they will meet that agreement and pay that compensation.
  2. The effect of WorkCover’s agreement is that if you have agreed or have in fact been paid under the old scheme when you had no right to then, WorkCover will not come after you to reclaim this money.
  3. If however, your claim was not agreed at the time of the High Court Judgment on 19 May 2014 then you will miss out.

 

The Good – What has happened since the High Court decision?

  1. Some reprieve came for workers who made a claim for permanent impairment benefits before 19 June 2012.
  2. It was thought that if workers decided to seek a top up of permanent impairment benefits due to their condition deteriorating, then that claim would be brought after 19 June 2012 and thus come under the new scheme.
  3. That issue (to date) has been resolved. The Workers Compensation Commission determined that the 1st system would apply in all of its glory: Cauldield v Whelan Kartaway Pty Limited (2014) NSWCC PD 34.
  4. However, WorkCover may want to appeal this decision.
  5. The Scheme Agent themselves, however, cannot, as to do so would raise an issue not submitted/contended before the Commission. However, another scheme agent may wish to bring another ‘test case’ and challenge this decision in the Courts at a future date.
  6. Time will tell…

 

8 July 2014.

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Civil Liability And The ‘One Punch’ Laws

Civil Liability and the ‘one punch’ laws

Security Guards, assault and liability – who can I sue?

By Timothy Driscoll LLM

 

Case study: Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250

If someone assaults you could sue them for damages for the loss suffered including perhaps aggravated (punitive) damages for the egregious breach which you have suffered.

The question then normally comes who should/can I sue?

In certain circumstances a legal entity including an individual or Corporation can be held to account for someone else’s conduct.

The most noticeable example is that of an employer being held liable for the conduct of its employees or the State of NSW being held liable for it’s Police Officers on duty.**

But what about security guards/bouncers at pubs or clubs?

Ordinarily, a security guard is employed by a security company – a $1 company with little if any assets or insurance. Hence, any action brought against security guards/bouncers for an assault will typically lead to a case of all liability but no means of enforcement of an order for compensation.

So what about the club or pub?

A recent case in the Court of Appeal in NSW named Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250 sought to attach liability to the owner of the principles arguing a new situation in which a person can be held to account for another’s actions.

In this case a bouncer was hired by a security company called Checkmate. He was directed by the pub/club/hotel to remove a patron.

The bounder did so but used excessive force pulling the chair from underneath them causing the patron injury.

There was no doubt that ‘Checkmate’, the employer of the bouncer was liable. But they were no longer in existence! So that left the pub/club/hotel.

The Plaintiff argued that the pub/club/hotel were responsible because:

1. The acts were authorised by the pub/club/hotel,
2. The bouncer was the agent of the pub/club/hotel,
3. Section 91 of the Liquor Act implies agency and liability,
4. The pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

All of the above arguments were rejected.

The Court found that the actions were not authorised, nor was he an agent at law or deemed under the Liquor Act, nor was there a principle enabling his non-employer to be held to account for his conduct.

The only glimmering light is that the Court of appeal felt bound by a higher Court’s precedent on whether a pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

This leaves the door open for the High Court to clarify this issue which is of great significance. The ‘one punch laws’ and other policies regarding alcohol fuelled violence and anti-social behaviour, causing government intervention to tackle the issue. Will the Common law follow suit? Time will tell.

There seems to me a least some policy grounds for the creation of such a responsibility. However, the fundamental condition of control seems to be lacking – the pub/club/hotel does not usually exert any sufficient control over the conduct of the bouncer past directing them to do something as opposed to the means of or training as to how to perform such bona fide duties.

If you have been assaulted by a bouncer and are suffering wage loss and/or require significant treatment – we suggest you consider obtaining legal assistance to determine any rights that you may have against a security company or perhaps a pub/club/hotel.

Timothy Driscoll
10 July 2014

 

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* Section 7 Law Reform (Miscellaneous Provisions) 1983 (NSW)

** Section 9B Law Reform (Miscellaneous Provisions) 1983 (NSW)

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.