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Injured While Volunteering

Injured While Volunteering? Can You Receive Compensation?

Everyone knows that if you are injured whilst at work you are entitled to compensation to help offset the costs of your injuries.  Likewise, if you were injured due to the fault of an occupier, business owner or other entity you can make a public liability claim.

However, where do you stand if you are one of the growing tens of thousands of people in Australia who undertake some form of volunteer work?

What is a Volunteer?

A volunteer is generally defined as a person who provides services for a charity or other entity for free.  Volunteers may sometimes receive some reward for their efforts in the form of costs for travel, food or other modest benefits.

Workers Versus Volunteers

Generally, volunteers are not protected by the workers compensation legislation and cannot claim workers compensation when they are injured.  There are however often deeming provisions of the legislation that protect volunteers and entitle them to claim workers compensation.

Quite often the organisation that is being assisted will take out an accident policy which will provide for payment of medical expenses and limited other benefits when injury occurs.

Duty of Care Owed to Volunteers

The organisation that is being assisted by the volunteer owes to the volunteer a duty to ensure that reasonable steps are taken to prevent injury.  A breach of that duty may give rise to an entitlement to damages.

The Work Health & Safety Act 2011 (NSW) extends to someone who “carries out work in any capacity for a person conducting a business or undertaking”, which of course includes volunteers (s.7).  Also in New South Wales, the Workplace Injury Management and Workers Compensation Act 1998 Schedule 1 deems some volunteers to be workers.

Volunteer organisations have a responsibility to ensure the health and safety of all people who enter their premises.  If the workers compensation legislation does not apply then the organisation’s public liability insurer will cover the organisation for the compensation payable as a result of a breach of that duty.  The extent of the duty owed by the organisation will be dependent upon the nature of the environment, the type of work that is being performed and the general level of risk that the volunteer is exposed to.

Australian Work Health and Safety Act

Relevant workplace health and safety legislation in Australia does, in fact, recognise volunteers as workers and will protect the physical and mental health of a volunteer in the same way that it would protect a registered employee, and most organisations are covered under the legislation.  Consequently, both the organisation and the volunteer benefit; the volunteers are covered in the unfortunate event that they are injured in the course of business and the organisation is protected if they in some way contribute to the injury of an employee or volunteer.

Contact a Lawyer Today

Volunteers are a vital part of any economy and they deserve to have the same protections as regularly employed individuals.  Luckily, there is compensation available for volunteers who are injured in the course of their duties in Australia.  If you have been injured in your capacity as a volunteer, strict time limits apply to these matters.  Contact BPC Lawyers today.

 

BPC Lawyers Recognised by Doyles Guide

BPC Recognised by Doyles Guide

PRESS RELEASE

BPC Recognised by Doyles Guide

BPC Lawyers have again been recognised by the Doyles Guide for our expertise in personal injury.

The Doyles Guide is an independent organisation that ranks law firms based on peer surveys as well as extensive telephone and face to face interviews with clients, peers and relevant industry bodies. It is pleasing for BPC Lawyers to be recognised by Doyles, as personal injury lawyers’ rankings are compiled by feedback from defendant insurance solicitors.

We believe having the respect of colleagues gives BPC an edge for our clients that other firms cannot provide.

In 2015 and 2016, BPC received the following rankings:

Leading Medical Negligence Law Firm (Plaintiff) – 2015, 2016;
Leading Motor Vehicle Accident Compensation Law Firm – 2015, 2016;
Leading Workplace Injury & Compensation Law Firm (Plaintiff) – 2015 / Recommended Workplace Injury & Compensation Law Firm (Plaintiff) – 2016; and
Leading Public Liability Law Firm (Plaintiff) – 2015, 2016.
LAWYERS

Courtenay Poulden

Leading Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Recommended Motor Vehicle Accident & Injury Compensation Lawyers (Plaintiff) – NSW, 2016
Scott Hall-Johnston

Recommended Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Recommended Medical Negligence Lawyers (Plaintiff) – NSW, 2016
Recommended Work Injury & Accident Compensation Lawyers (Plaintiff) – NSW, 2016
Mark Nelson

Leading Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Leading Motor Vehicle Accident & Injury Compensation Lawyers (Plaintiff) – NSW, 2016
Kate Henderson

Leading Medical Negligence Lawyers (Plaintiff) – NSW, 2016
Leading Medical Negligence Lawyers (Plaintiff) – NSW, 2015

About BPC Lawyers

BPC Lawyers is a leading Sydney legal practice with accredited motor accident compensation lawyers, specialist workers compensation lawyers. The practice has its origins as a legal practice started by Barry Beilby in 1975. The business expanded significantly in 1993 when the practice merged with that of Flannery Mura & Costello, a firm specialising in Compensation law.

For more information, please visit The website.

Contact Info:
Name: Mark Nelson BPC Lawyers
Address: Level 18, 201 Elizabeth St., Sydney, NSW Australia 2000
Phone: +61 (02) 8280 6900

PRESS RELEASE

Australians Alerted To Proposed Changes To Motor Accident Compensation Laws

BPC Lawyers is a leading Sydney legal practice and accredited specialists in Personal Injury law. In a recent communiqué they make all Australians aware of the proposed changes to motor vehicle compensation laws.

The Minister for Innovation and Better Regulation, the Honourable, Victor Dominello MP announced in a media release on 2 March 2016 that the Government will be establishing a task force to counteract CTP fraud in New South Wales and will also conduct a review of the present CTP scheme.The Government has a clear agenda to reduce the cost of a green slip in New South Wales and is keen to see that a high proportion of the green slip premium goes towards helping the injured person.

Statistical information indicates only 45% of the premium is paid in direct claimant benefits and furthermore, 19% of the premium represents profit for the licensed insurers.

The Government has put on the table a number of potential reform options which are as follows: Option 1 – retain the current common law, fault based scheme with process improvements; Option 2 – retain the current common law, fault based scheme with adjustments to benefit levels as well as process improvements; Option 3 – move to a hybrid no fault, defined benefit scheme with common law benefits retained in parallel; and Option 4 – move to a fully no fault, defined benefit scheme with caps, thresholds and no common law.

As these discussions have progressed since March 2016, it appears the Government is in favour of option 3. This proposed scheme is similar to the scheme presently operating in Victoria which is managed by the Transport Accident Commission.

BPC Lawyers believe it is important to note the present scheme in New South Wales is already a hybrid scheme with no fault benefits paid to a significant number of classes of persons injured in New South Wales. For example, upon lodgement of the Accident Notification Form payments are made to injured persons up to the sum of $5,000.00 for medical expenses. There is also the blameless accident legislation, Lifetime Care and Support Scheme and no fault coverage for children.

In the Victorian scheme there are no payments made for gratuitous domestic assistance. At the present time in New South Wales, persons who are injured can receive assistance from friends or relatives with self-care and domestic chores but such assistance must be not less than 6 hours per week and for a period not less than 6 months. The rate is legislated by statute at $29.44 per hour and is CPI indexed.

If the present legislation is changed, BPC Lawyers believes there is cause for concern in ascertaining the entry level or threshold for access to common law benefits. Most objective observers of the proposed changes are concerned that the CTP scheme will not provide adequate economic loss compensation in most cases – meaning that those who cannot afford to pay for separate income protection insurance will be left ‘high and dry’.

Mr Mark Nelson, Partner of BPC Lawyers said, “more than ever, injured persons need to consult experienced practitioners in the area of personal injury litigation and seek the assistance of solicitors who have many years’ experience in personal injury.

Personal Injury Motor Accident Claims

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.

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 BPC Lawyers, 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.

Nervous Shock Claims

Nervous Shock Claims

Workplace incident at Barangaroo – Nervous Shock Claim

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.

BPC Lawyers have 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.

BPC  Lawyers 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.

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

BPC Lawyers 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.

motor accident compensation claims

Motor Accident Claims – Do I have to go to Court?

Do I Have To Go To Court To Receive Compensation?

Smalley v Motor Accidents Authority of NSW

Following the success that Mr Smalley enjoyed in his Court of Appeal victory, the Motor Accidents Authority issued amended Claims Assessment Guidelines which were gazetted on 11 April 2014. The intent of the amendments is that CARS be given the ability to determine liability disputes where a CARS Assessor is of the opinion that course is appropriate.

In Smalley, the Court found by inference that where an insurer denies liability then fault is necessarily denied and the Claimant is entitled to an exemption. The amended Guideline that deals with this exemption entitlement is 8.11.1, which reads as follows:

“Liability is expressly denied by the insurer, in writing, but only in circumstances where liability is denied because the fault of the owner or driver of a motor vehicle in the use or operation or the vehicle is denied.”

Mr Smalley complained that because the insurer denied liability, the insurer was not required to meet his medical expenses as they were incurred or comply with any of its other obligations under the Act. The insurer was, in effect, having its cake and eating it too.

The other difficulty with a CARS Assessor determining a liability dispute is that the finding is not binding upon the insurer. That is of course not the case where liability is admitted (see s95(2) of the Motor Accidents Compensation Act).

Where a Claimant is forced to commence court proceedings because the insurer will not pay the CARS Award, legal costs payable by the insurer are capped. Fortunately, that predicament was remedied to a considerable extent as a result of the Motor Accidents Compensation Regulation 2015. Generally, as a result of that Regulation, if an insurer does not accept liability then it is required to pay all of the Claimant’s costs incurred after the CARS Certificate. This should provide a disincentive for insurers not accepting a CARS Award.

Conclusion

It is clear that many liability disputes will now be heard and determined by CARS. That is not of itself a difficulty for Claimants because the CARS assessment process generally provides a swift and economic answer to a claim. The difficulty however arises that insurers are not bound by the CARS Award which may force a Claimant to then commence court proceedings on the claim. Hopefully the obligation on the insurer to pay indemnity costs in that circumstance will make insurers think twice before refusing to pay a CARS Award.

Do I have to go to Court to receive compensation?

This will depend, in fault denied matters, whether the insurer accepts the determination of damages by CARS.

How do Insurers Investigate Claims

How do Insurers Investigate Claims

Important issues in personal injury claims will frequently hinge on the evaluation of a claimant’s credibility and there are various tools available to insurers to identify any inconsistencies between allegations and fact.

The key tools available to Insurers are subpoenae to produce documents, surveillance, independent medical examinations and cross-examination. Attacks on credibility can be defended by lawyers but are best guarded against by claimants being truthful in the conduct of their claims.

Any claim within the jurisdiction of the courts is likely to invoke the use of subpoenae – on, for example, employers and doctors – for the purpose of bringing to light the true circumstances surrounding a claimant’s earnings, medical history, contemporaneity of complaints and so on. An experienced lawyer will advise their client of this possibility at the commencement of proceedings. This article will look at the level of threat and effectiveness of defending attacks on credibility.

Surveillance

Surveillance evidence can be the most cutting tactic used by insurers to devalue a claim. Naturally, obtaining proof of a claimant’s residual or post-injury abilities, if kept in context, can be compelling evidence. Once obtained, the insurer can maximise the weight of that evidence by admitting it without notice to the claimant when it has the best chance of contrasting with the claimant’s allegations.

The Uniform Civil Procedure Rules do provide that surveillance to be relied on must be served on the other party to proceedings at least 7 days before the commencement of a hearing. The UCPR goes on to state that a party who fails to comply with that provision ‘may not tender the plan, photograph, audio-visual recording or model in evidence except … by leave of the court’.[1]

Clearly, the rule permits a judge to exercise his or her discretion in permitting the evidence admissible. Mid-hearing, it would be a matter for counsel for the claimant to argue that the prejudice to the claimant outweighs the probative value of the footage.[2] The insurer’s typical reaction to this argument is that the claimant’s initial reaction to surveillance footage holds greater value than a prepared reaction.

It should be noted that we can expect an increase in the service of evidence collected from social media sites. There is limited Australian case law on this issue presently but what little case law does exist indicates that similar rules apply as with surveillance footage with the added requirement that the authenticity of the site must be established.[3]

[1] Uniform Civil Procedure Rules 2005 (NSW) r 31.10.

[2] Evidence Act 1995 (Cth) s 135.

[3] Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268; Condon-Nixon v Rivers [2012] FamCA.

In Azar v Kathirgamalingan [2011] NSWDC 56, the insurer took thorough steps to attempt to have surveillance video admitted into evidence at the hearing and not prior. That case involved a claim for psychiatric injury. The insurer brought a Notice of Motion disclosing the existence of surveillance video but not disclosing its contents. It sought the following:

  • leave be granted under Rule 31.10(2) of the UCPR to show the surveillance evidence to the plaintiff in cross examination and to use and tender it at the hearing;
  • the defendant be excused from compliance with Rule 31.10(1) in respect of the surveillance evidence; and
  • the defendant have leave to show the film to his experts and not be required to serve supplementary reports dealing with the film until after cross examination.

Truss DCJ applied the precedent principle that ‘[t]he reasonable entitlement of a defendant to preserve pre-trial confidentiality and the results of its investigations, in the face of suspected fraud, remains a legitimate interest[1] and permitted the future admissibility of the footage without prior service on the claimant. Her Honour, with reference to Section 58 of the Civil Procedure Act 2005 (NSW), did not, however, permit the admissibility of supplementary experts’ reports commenting on that footage on the basis that this would unfairly disadvantage the plaintiff.

This course permitting admissibility of footage without prior inspection was again adopted in Josephine Williams v Lansdowne Partners Pty Ltd t/as 202 Broadway [2013] NSWDC 154, [129]. That case involved issues of credit regarding the level of disuse of the claimant’s left hand as a result of physical injuries sustained in a slip and fall.

These judgments of the District Court may not hold much weight in terms of precedent, but certainly indicate that, in light of the Court’s inclination to take issues of credibility seriously, the only sure way of guarding against unwanted surveillance footage is for neither claimant nor lawyer to overemphasise an injured person’s disabilities.

Medical Assessment

On 5 July 2016 a decision was handed down by the Court of Appeal in the matter of Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156. This case principally dealt with a claimant’s eligibility under the Lifetime Care and Support Scheme. The claimant had an interest in being found ineligible and the insurer appealed the decision of the Review Panel that he was so. The insurer submitted that three of the criteria used by the Panel to determine the claimant’s eligibility (self-care, communication and social cognition) were determined largely on the history the plaintiff provided and that as a consequence, the Panel ought to have made determinations as to the claimant’s credibility alongside its decision.

Of relevance was the fact that the claimant had an interest in being found ineligible for participation in the Scheme and there appeared to have been an improvement in the claimant’s condition prior to the assessment. In brief, the Court of Appeal repeated precedent and concluded that ‘the obligation of the Review Panel was to give reasons for its own findings; it was not required to explain why it did not accept findings made by others’.[2]

In this way claimants were given some protection by the courts in circumstances where it serves no purpose to question a claimant’s medical history if there can be no objective evidence capable of supporting or disputing that history.

Cross-Examination

A less recent decision, in Allianz Australia Insurance Ltd v Harrison [2013] NSWSC 1186, addressed the extent to which an insurer is permitted to rely on elements of a claim which are withdrawn.

Prior to her CARS Assessment Conference, the claimant withdrew her claims for economic loss and past commercial care, the inference being that no documentation or witnesses in support of these claims existed. During the Assessment Conference the insurer was precluded from asking questions of the claimant about the abandoned claim but was permitted to make submissions on the claimant’s credibility based on the above inference. The insurer appealed the award on the basis that it was denied procedural fairness.

Hoeben J held that the insurer’s line of questioning was, if desired, a necessary facet of the insurer’s ability to present its case fairly.[3]

Conclusion

These illustrations demonstrate that, depending on the circumstances and the balance of probability and prejudice, issues regarding the protection of a claimant’s credibility can easily be decided in both ways. The interests of injured persons are always best protected by presentation of symptoms and relevant histories in a transparent fashion.

[1] Halpin and Ors v Lumley General Insurance Ltd [2009] NSWCA 372, [317].

[2] Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156, [53]; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[3] Zurich Australia Insurance Ltd v Motor Accidents Authority of New South Wales and Ors [2010] NSWSC 214.

The Truth About Trasylol

Update: The Truth About Trasylol

The Truth About Trasylol  – Trasylol could be responsible for death, stroke, heart attack or kidney failure, you should act quickly.

Following the airing of the news and current affairs program, Sunday Night, on 12 October 2014, BPC 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 BPC Lawyers on 8280 6900 to discuss your case with a specialist solicitor or email: info [at] bpclaw.com.au.

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

Medical Negligence & the Inquest into the Death of Luke Wood

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 hemorrhage” 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 BPC Lawyers on 8280 6900 to speak with a specialist in medical negligence.

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

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

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

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

The Truth About Trasylol

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

Permanent impairment benefits

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… 

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

Workers Compensation: Death Claims

Workers Compensation: Death Claims

When a loved one dies unexpectedly or prematurely, they often leave behind family members who were financially dependent on them.

If the death of that loved one was caused or substantially contributed to by their work, the dependents have the right to claim a lump sum death benefit under Workers Compensation legislation.

We recently acted for the children of a deceased worker. The deceased worked extremely long hours and was on call 24 hours a day, 7 days a week, causing her significant stress. It was not disputed that she was a very dedicated worker.

On the day of her death, the deceased worker was travelling to a work meeting, when she suffered a fatal heart attack. The children brought a claim against her employer, alleging that their mother’s employment had been a substantial contributing factor to her death.

This was a complex matter. The deceased had a variety of risk factors for a heart attack, and some of these were unrelated to her work. However, she also had risk factors (such as not having time to exercise, and being under great stress on the day of her death) which were work-related.

We sought several expert reports from a cardiologist in relation to these issues, and we got reports that were supportive of the childrens’ case. We also took statements from all of the children, as well as close friends and partners as to the deceased’s work situation. This matter was then heard in the Workers Compensation Commission. A decision was given after some months, and the children won. They were awarded the maximum death benefit.

The employer’s insurer then appealed that decision, and several months later, that appeal was heard by the Deputy President of the Workers Compensation Commission. We have recently been advised that the children won the appeal as well.

This has been a long and hard fought case, and was helped by the thorough preparation of both lay and expert evidence. It has been very rewarding to assist such deserving clients, and to see them secure a positive outcome on 2 separate occasions.

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

Cyclist Receives Compensation from CARS After Injury in Car Accident

Cyclist Receives Compensation from CARS After Injury in Car Accident

Mr Smith (name changed for privacy reasons) suffered injury on 08 November 2009.

He was waiting at an intersection on his bicycle when a car did not see him and struck him from behind.

He suffered bruises, abrasions and a soft tissue injury to his shoulders and back. He was prescribed strong pain-killing medication.

In August 2010 the medication he had been prescribed caused Mr Smith to have a seizure as a result of which he suffered more serious injuries including fractures in his back that required surgery.

Mr Smith lodged his claim for compensation with the green slip insurer of the vehicle that caused his accident. It was not long however before he realised that he needed the assistance of a specialist lawyer to guide him through the process.

Initially, the insurer disputed that the injuries were caused in the motor vehicle accident. The insurer argued that the seizure was a separate incident unrelated to the accident and as a result, it was not responsible to pay for any further loss or damage.

We made an application to the Medical Assessment Service of the Motor Accidents Authority on behalf of our client who determined that the injuries suffered in the seizure were caused by the car accident because they arose from the medication that Mr Smith had been taking for pain.

An application was then made to have the claim assessed at CARS (the Claims Assessment and Resolution Service of the Motor Accidents Authority). Mr Smith was awarded $1,818,582.87 plus costs.

Whilst CARS can deal with claims of any size, traditionally CARS has been reserved for cases that are relatively straightforward.  Increasingly, however, CARS has taken on the role of determining claims where serious factual issues are involved.

If you have been involved in a motor vehicle accident and would like advice about your rights, please feel free to contact our office on 8355 4003 to make an appointment to consult with one of our Accredited Specialists.

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

Recent Win in the Court of Appeal

Recent Win in the Court of Appeal

We are pleased to note that we were recently successful in an important decision before the Court of Appeal.

On 09 August 2013 the Court of Appeal delivered Judgment in Smalley –v- Motor Accidents Authority of NSW1 which will have a significant impact upon the way that motor accident claims are administered in New South Wales.

Background:
The scheme for compensation for personal injuries in New South Wales is governed by the Motor Accident Compensation Act (1999). That Act provides for two ‘streams’ of claims. Where liability (that is the insurer’s obligation to pay for a claim) is admitted, then an insurer is obligated to pay for medical expenses, make an offer of settlement and attend a settlement conference in a timely manner. If those obligations do not lead to a conclusion of the claim then the entitlement to compensation is to be determined by an Assessor appointed by the Motor Accidents Authority of NSW.

In the event that liability is declined, that is the insurer disputes its obligation to pay for a claim, then the claim is to be dealt with by the District Court of NSW.

It has been our more recent experience that some insurers have failed in their obligation to determine liability within three months as required by the legislation which results in the injured Claimant unable to effectively enforce their rights.

Mr Smalley’s Claim:
Mr Smalley was injured in a motor vehicle accident on 16 December 2005. He lodged a claim for compensation with the third party insurer on 14 January 2010, well outside the six-month limit. The insurer requested an explanation for the late claim which was provided by Mr Smalley. The insurer rejected the explanation and denied liability for his claim. That issue was referred to the Motor Accidents Authority for determination, who decided that Mr Smalley had in fact provided a full and satisfactory explanation and that the claim should proceed. Notwithstanding the decision of the Motor Accidents Authority, the insurer continued to deny liability while accepting that its insured driver was at fault in the accident.

Mr Smalley made three applications to have his claim exempted from CARS and the administrative process so that he could proceed to Court and seek a final determination. The difficulty facing Mr Smalley was that he was being asked to proceed firstly through CARS, notwithstanding that the insurer steadfastly refused to accept any determination that was made by CARS, thereby causing him unjust cost and delay.

Judgment of the Court of Appeal:
In a unanimous decision, the Court determined that ‘liability’ means the acceptance by an insurer of its obligation to pay a claim, even though the amount that is required to be paid may be in dispute. As a result, it is now clear that where an insurer disputes its obligation to pay on a claim, a person injured in a motor vehicle accident is entitled to proceed directly to Court.

The administrative scheme (“CARS”) is intended to be a quick, cheap and efficient means to resolve claims. The bargain for the insurer is that if it wishes to take advantage of this scheme, it is obliged to act quickly and comply with the obligations set out in the legislation. As a result of this judgment, an injured party who is aggrieved by an insurer’s failure to comply with its obligations will be able to proceed directly to Court and enjoy the benefits of the Court’s greater and binding authority.

About BPC: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Medical Negligence in Allied Health Care

Medical Negligence in Allied Health Care

In 2010, Beilby Poulden Costello was instructed to act for a plaintiff who had a claim against her chiropractor.

She alleged that the treatment that she was given in 2008 was performed negligently and claimed compensation from the chiropractor.

Facts
Our client had a breast augmentation procedure in 2005 during which implants were inserted. She was very happy with the results and had no problems until she met the defendant.

Our client worked in a job that required her to have her head bent down and her neck extended – therefore she suffered occasionally from a sore neck and back. In 2008 she attended a chiropractor. The chiropractor took no medical history and asked no questions about prior surgery. He asked where her pain was, noted that in a chart, performed a couple of manipulations and sent her home.

Later that evening, our client noticed that one of her implants appeared to have been pushed out of place. When she consulted the surgeon who had performed the procedure, he confirmed that the implant was displaced, and that she would need surgery to correct the displacement.

Our client could not afford the surgery, but very much wanted to have her implant corrected. She then decided to seek legal advice about whether the chiropractor was negligent in his treatment of her.

The legal process
Our client got an expert opinion from a chiropractor who stated that her treating chiropractor was negligent in failing to take any sort of medical history from her, and in performing the manipulation he did. Our client filed proceedings in the District Court of New South Wales in 2011, and despite various attempts, was not able to settle the case, and so it proceeded to trial in 2012.

The hearing
This case turned on both expert and lay witness evidence. There was a dispute over which manipulations were performed, and whether they were negligent – this became a case as much about the facts as about the experts.

The plaintiff gave evidence herself and her then husband also gave evidence. This was directly contradicted by evidence the defendant himself gave.

Expert witnesses included a chiropractor for both the plaintiff and the defendant, a plastic surgeon for the defendant, and the plaintiff’s treating plastic surgeon.

The decision
Ultimately, the Court was persuaded that the defendant did not take a proper history, and that he should have. The Court was further persuaded that if he had taken a proper history, he should not have performed the manipulations that he did. The Court found that the defendant performed the manipulations as described by the plaintiff, that the defendant breached his duty of care to the plaintiff and caused her injury, and that compensation should be awarded.

The plaintiff was awarded the full cost of the corrective surgery as recommended by her treating surgeon, and pain and suffering. For pain and suffering, she was deemed to be worth 25% of a most extreme case. Overall she was awarded $51,137.50 in compensation. Additionally, the defendant was ordered to pay all of the plaintiff’s costs from approximately one year before the trial, because the plaintiff had offered to settle her case for an amount less than she was awarded by the Court.

Lasting effects
This case received a lot of publicity at the time of judgment, and it was reported in newspapers around the world.

This case has become a landmark decision in personal injury circles, and is particularly important because of what the plaintiff was given for her pain and suffering.

 

About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Man Falls Down Stairs at Ice Skating Rink

A Gentleman Falls Down Flight of Stairs at Ice-Skating Rink Suffering Serious Injuries

Catholic Club Ltd [2013] NSWDC 93

Falls Down Flight of Stairs at Ice-Skating Rink

Facts
At about 3.45pm on Wednesday 14 January 2009, the plaintiff, Christopher Moor, was injured at the premises of the defendant, Liverpool Catholic Club Ltd. He sustained a fracture to his right ankle after losing his footing, slipping and falling whilst descending a set of stairs. At that time, he was wearing ice skating boots. He was descending the stairs in order to access an ice skating rink on the premises.

Injuries
When the plaintiff fell on the stairs, he suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint.

Expert engineer for the plaintiff
The plaintiff relied upon 3 reports from Mr Ian Burn, a consulting civil engineer. His reports were respectively dated 23 April 2012, 13 September 2012 and 12 November 2012. The most recent report of Mr Burn commented upon a report dated 19 September 2012 from the defendant’s expert, Dr John Cooke, a consultant architect.

On 20 April 2012, Mr Burn had inspected and made measurements of the stairs where the plaintiff had fallen. He observed that including the landing, the seven steps comprised a discrepant pattern of measurements of the goings, or treads and the risers.

Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step.

His Honour Justice Levy SC of the District Court of New South Wales was of the view that:

“When a person of the plaintiff’s height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs.”

Expert engineer for the defendant
The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs.

Conclusions on utility of the expert evidence
His Honour, having considered the respective reports of the Plaintiff’s experts, concluded that Mr Burn’s analysis of the mechanics of the plaintiff’s fall was more reliable when compared to the opinions of Dr Cooke for the defendant.

Whether an obvious risk was present
The defendant pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff.

The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff’s conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council [2008] NSWCA 98, at [27]-[28]; Lalouach v Ibrahim [2011] NSWCA 402, per Giles JA, at [79]. The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at [35], per Giles JA.

His Honour stated firstly that:

“The defendant had not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm”: Lormine Pty Ltd v Xuereb [2006] NSWCA 200, per Mason P, at [31].

Secondly his Honour stated that, the description of the plaintiff’s descent down the stairs and the CCTV footage showing the course of his descent did not demonstrate any unreasonable conduct on the plaintiff’s behalf. His Honour concluded that-

“On the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling.”

Thirdly, his Honour was of the view that, the defendant had not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk.

Whether there was inherent risk
The defendant also pleaded a defence of inherent risk, pursuant to s 5I and s 5K of the CL Act. There is no liability in negligence if the harm complained of is as a result of the materialisation of an inherent risk: s 5I(1) of the CL Act.

An inherent risk is defined as an occurrence that cannot be avoided with the exercise of reasonable care and skill: s 5I(2) of the CL Act. The exclusionary effect of s 5I does not operate where there is a duty to warn of the existence of a risk: s 5I(3) of the CL Act.

His Honour was of the view that the plaintiff was entitled to a warning that the stairs had incorporated within their structure of the treads, goings and risers, an uneven pattern of lineal and vertical dimensions. Similarly, the plaintiff was also entitled to a warning that the nosing edges of the stairs were slippery when wet in the moist conditions that were evident at the ice rink premises.

His Honour further stated that, the actions involved in descending the stairs wearing skate boots, as distinct from ice skating, did not constitute a dangerous recreational activity within the meaning of s 5K of the CL Act.

Duty of care and scope of that duty
The plaintiff claimed that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (198) 162 CLR 479, at pp 487 to 488, [11] to [12].

The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [26]. Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant’s patrons.

Causation
His Honour was of the view that, it was appropriate on the facts of the case, to apply the simple “but for” test of factual causation required by s 5D of the CL Act. His Honour consider that it was more probable than not, that the plaintiff’s injury would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness. His Honour was also satisfied that it was unlikely the plaintiff would have sustained the injury he did if the instructed and supervised practice at the ice rink was to ensure patrons refrained from putting on their ice skating boots until after they had descended the stairs in question: Strong v Woolworths [2012] HCA 5, at [18] to [20].

Conclusions on negligence and causation
His Honour concluded that the defendant was negligent as alleged, and that such negligence was the cause of the plaintiff’s injury.

Orders

  1. Verdict and judgment for the plaintiff in the amount of $148,343;
  2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
  3. The exhibits may be returned;
  4. Liberty to apply on 7 days notice if further orders are required.

 

About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

rights for Compensation for Permanent Impairment

Court of Appeal Decision on Worker’s Right to Lump Sum Payment

Workers Compensation Update

Your rights for Compensation for Permanent Impairment – Case note: Gaudappel v Adco Constructions Pty Ltd (2013) NSW CA 94

Traditionally, the New South Wales scheme of Workers Compensation has provided an injured worker for ongoing entitlements to compensation provided they could establish their employment was a substantial contributing factor for their need.

The three main entitlements were:

  1. Payment of your work injury-related medical expenses,
  2. Weekly wage compensation for incapacity to earn because of your work-related condition, and
  3. A small sum for any Permanent impairment caused by your work-related injury.

The new Workers Compensation Scheme has seriously eroded these rights, including an injured worker’s right to benefits for permanent impairment.

A right to benefits for permanent impairment is a right not often know by workers and rarely disclosed by the insurer/scheme agent.

Under the new scheme, a worker has to prove that their work-related injury results in a 11% or greater Whole Person Impairment rating.

It may not sound much, but this is a very high threshold to overcome.

However, there may be some relief for those who made a claim for workers compensation BEFORE 19 June 2012.

The New South Wales Court of Appeal has upheld an Appeal by an injured worker claiming benefits for a Permanent Impairment suffered as a result of his employment.

The claim was for less than 11% Whole Person Impairment.

He argued that as he had made a claim for compensation before 19 June 2012 then he did not need to meet the 11% threshold.

In essence, this decision provides that if you have suffered an injury and made a claim for Worker’s Compensation in any form before 19 June 2012 then you are entitled to claim benefits for whatever permanent impairment you have suffered.

If, your injury happened after have not made a claim for Worker’s Compensation benefits before 19 June 2012 than, you must reach a threshold of 11 % Whole Person Impairment before you are entitled to any compensation for Permanent Impairment.

Special leave to appeal this decision to the Highest Court in Australia has been made by the employer. It remains to be seen what their decision will be.
Facts

On 17 April 2010 the injured worker suffered an injury at work when a bundle of steel fell from a forklift causing him an injury on his left foot and left ankle.

Two days later the injured worker made a Workers Compensation Claim.

As is usually the case the original Workers Compensation Claim does not specifically make a claim for any permanent impairment.

The law requires that a worker “reach maximum medical improvement” before he can be assessed and make a claim for permanent impairment benefits.

On 19 June 2012, new provisions of the Workers Compensation Scheme came into force for all “claims for compensation” made on or after 19 June 2012.

The injured worker made a claim for permanent impairment benefits after this date.

In essence, the issue was whether the original Workers Compensation Claim was enough to see his claim fall under the Pre-Workers Compensation Amendments.
Decision of the President of the Worker’s Compensation Commission

President Keating of the Worker’s Compensation Commission dismissed the workers claim stating that “claim for compensation” meant that a claim specifically for permanent impairment benefits had to be made before 19 June 2012.

As the claim for permanent impairment was made by the worker after this date and under the 11 5 Whole Person Impairment Threshold he could recover no compensation for permanent impairment. The Worker Appealed to the New South Wales Court of Appeal.
The New South Wales Court of Appeal Decision

The New South Wales Court of Appeal allowed the Appeal.

The New South Wales Court of Appeal found that if any claim for Compensation is made before 19 June 2012 than the old provisions will apply to that claim (i.e there is no threshold for obtaining Whole Person Impairment benefits) and thus the worker can claim.

The Court noted that this was the case “whether the claim specifically sought compensation” for permanent impairment benefits.
Is this the final word?

The employers Solicitors are considering whether they should appeal to the highest Court in Australia that is the High Court of Australia.

The employer has until 27 May 2013 to lodge this Appeal.

If any Appeal is lodge, the High Court of Australia must grant special leave to hear the case of the employer.

If special leave is granted, than the High Court will review the case and provide a judgement which may overturn or confirm the New South Wales Court of Appeal.

It is yet to be seen whether the employer will appeal to the High Court of Australia.
The position of WorkCover

WIRO, a sub branch of WorkCover has issued the attached fact sheet which provides what an injured worker’s rights are if they have made a claim for compensation before 19 June 2012 with respect to permanent impairment.

This document states that WorkCover is of the view that an injured worker can make a claim for permanent impairment benefits.

If you reach the threshold of 11 % Whole Person Impairment than you are entitled to further compensation for pain and suffering.

If after making this claim your condition further deteriorates, an injured worker will be able to make a further claim for permanent benefits provided that the deterioration has caused an increase in assessment of permanent impairment.
Conclusion

If you have made a claim for compensation before 19 June 2012 and have any ongoing impairment we strongly suggest that you seek legal advice as to whether you have any entitlements to permanent impairment benefits.

It is still to be seen whether the New South Wales Government will seek to change the law so that the New South Wales Court of Appeal Decision is in fact changed.

If you do wish to proceed with a claim for permanent impairment benefits we ask that you kindly contact our office and arrange an appointment in this regard.

About Beilby Poulden Costello: BPC Lawyers offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC Lawyers has its origins in a legal practice started by Barry Beilby in 1975.

Crime Claims Left Mired in Bureaucracy

Crime Claims Left Mired in Bureaucracy

Victims of crime have been frustrated by a compensation regime that is bureaucratic, costly and inefficient, resulting in a backlog of more than 20,000 claims – including one for a crime committed in the 1930s.

The bottleneck in the Victims Compensation Tribunal has forced the suspension of new claims. There is speculation in legal circles the state government will wind it up.

Resolution of a claim now takes an average of 30 months, and can stretch to four years or more.

More than 23,500 claims are awaiting a decision and a further 2100 are listed for hearing.

One lawyer who deals with the tribunal – where cases initially knocked back by claims assessors are heard – said he ”wouldn’t be surprised” if it were wound up.

People can wait years before being knocked back for compensation.

One applicant, who lost three teeth and sustained serious dental injuries in an assault, sought compensation for costs, including $20,000 in dental treatment. After a wait of more than two years, the case was dismissed because it did not meet the minimum compensation threshold determined by the act.

In another case that went to the District Court, a girl who was abused by her mother and stepfather before being placed in foster care in 2005 at the age of three, had a series of claims lodged on her behalf by a guardian.

Her claim was lodged in 2007. An assessor awarded ”S” compensation for some claims, and dismissed others, finding they were part of a single act of violence.

The decision was appealed to the tribunal in 2008, and the District Court in July 2009. The appeal was upheld in the District Court, the tribunal’s decision overturned and the case sent back for a new decision. The process took more than two years.

A review of the 26-year-old tribunal was finished last July but the government is yet to announce its response.

Article Source: www.smh.com.au

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Compensation Hopes For Faulty Hip Implant Victims

Compensation Hopes For Faulty Hip Implant Victims

Medical giant Johnson & Johnson is under mounting pressure to settle a class action launched against it by 4500 Australians who were fitted with the company’s infamous metal-on-metal hip replacements, after a US victim was awarded $8.3 million.

Lawyers representing the Australians fitted with the articular surface replacement (ASR) hip implants will return to court this week buoyed by the US case – which also revealed that Johnson & Johnson executives were told the implants were faulty but did not act.

Fairfax Media understands the Australian legal team may ask the Federal Court on Wednesday to order Johnson & Johnson, and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.

The ASR hips, implanted in more than 90,000 people across the world, began causing problems within six months of the first operations in the mid-2000s.

Australian national registry data showed last year that 44 per cent failed within seven years.

It has emerged that the high-carbon metal ball in the device was grating against its socket and sending metal fragments, rich in cobalt and chromium, into the bloodstream. Thousands of people fitted with the device were found to have symptoms associated with cobalt poisoning including severe pain, partial loss of vision and hearing, depression, lethargy and heart problems.

In December 2009, Johnson & Johnson discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.

But many have seen little improvement, suggesting that they have suffered permanent damage from the heavy metals that entered their bloodstream.

“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly, I’m unstable on my feet, I can’t sleep – it wakes you up,” he said. “It’s affected every aspect of my life.”

The members of the Australian class action received a major boost earlier this month when a jury in Los Angeles ordered Johnson & Johnson to pay more than $8.3 million to Montana man Loren Kransky.

The case – the first of more than 10,000 similar legal battles set to take place – sets an important legal precedent, paving the way for a cascading series of damages pay-outs that is likely to run into the billions.

Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the US decision would put pressure on the company’s Australian arm to consider a substantial settlement.

“It sends a very strong and clear message to Johnson & Johnson,” Ms Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”

The US case has revealed internal documents that showed company executives were told by US surgeons that the design of the implants was faulty. Some doctors urged the device maker to slow or stop selling the implant, but these warnings were largely ignored.

Lawyers for the Australian victims claim that those fitted with the implants were “unwitting participants in a large unofficial trial being conducted by DePuy and its agents and affiliates.”

Johnson & Johnson and DePuy have said they will appeal against the US decision.

Lawyers in the Australian case said the company “deployed an international and interdisciplinary team to design the implants, which used up-to-date scientific and technical knowledge, and subjected the implants to an extensive testing program over several years”.

They say all hip replacement or resurfacing devices carry risks, and surgeons were made aware of this.

Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages – damages awarded to punish and deter companies from future wrongdoing. Mr Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.

Another stumbling block could be Australia’s extremely tough damages regime, which places strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” said lawyer Ben Slade from Maurice Blackburn, who are also part of the class action. Mr Russell’s wish is for Johnson & Johnson to acknowledge its wrongdoing.

Article Source: www.smh.com.au

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Family Wins $63M Compensation From Johnson & Johnson

Family Wins $63M Compensation From Johnson & Johnson

The family of a US girl who lost 90 per cent of her skin after suffering an allergic reaction to pain relief medication has been awarded $63 million in compensation.

Samantha Reckis was seven years old in 2003 when she took “Children’s Motrin”, a pain reliever manufactured by a subsidiary of Johnson & Johnson, to treat symptoms of a fever, the New York Daily News reports.
But the Massachusetts girl had an extreme allergic reaction to the medication and developed toxic epidermal necrolysis, a skin disease which can be fatal.
She suffered kidney, liver and reproductive damage, went blind and lost 90 per cent of her skin.

After six months in hospital she left weighing only 14kg, but the family’s lawyer Brad Henry said the girl’s ordeal did not end there.

“When they finally were able to wean her off pain medications and take out the ventilation, within a couple of weeks she had a stroke because of the liver damage,” he said.
“They had to drill through her head to relieve the pressure.”

In a lawsuit filed six years ago against pharmaceutical giant Johnson & Johnson, the family alleged the medication’s bottle was not clearly labelled with warnings of its risks.

But the pharmaceutical company defended the product as safe and appropriately labelled.
Toxic epidermal necrolysis is an extremely rare condition, but Mr Henry said that did not diminish the company’s responsibility.

“All we’re saying is that if parents are in a position to give a discretionary drug to their child, they should at least be given the option to know whether this is a good idea or not,” he said.

Source: WHDH, New York Daily News