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Courtenay Poulden

Should You Settle or Go to Court After an Accident?

In the unfortunate instance that you have an accident in a public place that causes injury, compensation may be available. If you choose to pursue compensation, this is referred to as a public liability claim. Each individual situation is different, and the amount of compensation possibly claimable will differ depending on the specific circumstances of your accident.

Some of the most common locations where public injuries occur leading to public liability claims include:

  • supermarkets;
  • recreational activities;
  • sporting events;
  • schoolyards;
  • shopping centres;
  • car parks.

Following an accident, basic everyday living tasks that were once simple may become difficult to perform, and the more arduous tasks such as work may become almost impossible. In most cases, the negligent party will offer a monetary settlement if they acknowledge liability and believe that their defence will not succeed in court. You can accept this settlement or, if you believe the amount to be less than you should receive, embark on the alternative – a course through the various stages of litigation. If you find yourself in a similar situation and are debating this decision, there are a few factors that should be considered.

The size of the settlement and the strength of the case

If you’re unable to convince a judge of the merits of your claim in litigation proceedings, there is the possibility of incurring significantly high legal expenses. This is often the reason settlements are considered a preferable option.

But if you feel that a duty of care owed to you was breached, and that the opposing party has offered an insufficient amount of compensation, then litigation to secure an appropriate amount might be a better option.

It is crucial you ask yourself important questions such as whether or not your actions might have contributed to the injuries you suffered. Continuing through to litigation also requires a high degree of patience as proceedings can be quite lengthy. During this time, when you may be unable to work, you will obviously continue to incur medical bills, which may be reflected in the final compensation amount should you be successful. But cases can take 18 months or even longer to process.

The pay-out and time limits

The total amount of compensation will be made up of both economic and non-economic losses that are a result of the accident. These can include:

  • loss of income and superannuation payments;
  • medical and hospital costs;
  • past and future care arrangements;
  • pain and suffering.

Even quite minor injuries can result in high compensation payments, some in the tens of thousands of dollars, whereas more serious injuries can result in payments of hundreds of thousands of dollars or more.

Usually, ‘no-win, no-fee’ lawyers are the best option for public liability cases so that legal costs don’t need to be repaid until after the claim is successfully resolved. Most often, there is a time limit of three years after an accident to claim compensation for the injury incurred. Cases might require the testimony of a witness to help establish the factual circumstances of the case, another reason to kick start the claim as soon as possible.

Legal advice

Legal advice is always recommended. A legal expert can provide impartial, third party advice and make sensible decisions on behalf of clients based on the facts. A legal professional can also take a client through the potentially long and tiring process, as well as help to identify how much compensation might actually be achievable. If you find yourself in a situation where you might be eligible to make a public liability claim, contact an experienced legal professional today.

compensation lawyers sydney

How Long do Public Liability Claims Take to Resolve in NSW?

Let’s face it, we live in an age of instant gratification. Thanks to the Internet, we’ve grown accustomed to having immediate access to just about everything we could possibly want or need. So if you’ve been injured in a slip and fall accident, or similar circumstances in which someone else is to blame, chances are that you want the matter resolved quickly and to your complete satisfaction.

If you’re not careful, however, this impatience may jeopardize your chances of getting the compensation you deserve. That’s why it’s important to work with an experienced Sydney personal injury lawyer who can not only manage your expectations, but also fight for optimal results.

During your first meeting, a qualified lawyer will gather certain information and interview you about what happened to determine whether you have a viable public liability claim. You can usually make this type of claim if you’ve been badly hurt on public or private property, but only in certain circumstances.

For example, you may have a viable claim if someone assaulted and hurt you in a car park with inadequate lighting and security. You may also have a viable claim if you were hurt when you slipped and fell on a wet floor at the movie theatre, or even if a dog bit you at the park.

This is because New South Wales law mandates that business owners and other organisations do everything possible to make sure that people are not in danger while on the premises.  In other words, they must make sure their properties are well maintained, that their employees have adequate training and that other measures are in place to ensure public safety. Any failure to fulfill these obligations which results in personal injury is legally classified as negligence.

Although it sounds like a cliché, one of the first things your lawyer will probably tell you is that every personal injury case is different. It’s therefore impossible to say exactly how long it will take to resolve your public liability claim in NSW. Some of the factors taken into consideration include:

  • The extent of your injury or injuries;
  • the extent of your treatment;
  • how long it takes to assess your long-term needs and what they are;
  • how long it takes the responsible party’s insurance provider to make a settlement offer (if at all).

If the insurer doesn’t make a reasonable settlement offer, or refuses to make any offer whatsoever, your only recourse will be to take the matter to court. If you and your lawyer agree to pursue this option, the court’s schedule will dictate how quickly (or slowly) the case goes forward. In general it can take 12 to 18 months until the case is actually heard.

Even if the case goes to court, there’s no guarantee you’ll win. In one documented case, for example, the court awarded $90,000 in compensation to a woman who brought a public liability claim against the Coles supermarket where she was injured when she slipped on a grape. In this particular case, the woman argued that the supermarket was negligent because it hadn’t removed a hazard (the grape) or done anything to make customers aware of it, and had been negligent for not clearing the floor of grapes and not warning customers of the slip danger. In response, the supermarket employed a legal defence called ‘obvious risk’.  Specifically, it argued that the presence of grapes on the floor constituted an ‘obvious risk’, and consequently it wasn’t legally obligated to warn customers. The court disagreed, ruling that the supermarket breached its duty of care, and awarded damages accordingly.

In another case, a woman brought a public liability claim against the owners of a shopping mall after she was hurt when she tripped over a kerb in an underground car park. The plaintiff here claimed that she couldn’t see the kerb due to fading paint and inadequate lighting. Unconvinced, the court sided with the defendants and ruled that kerbing was an ‘obvious risk’ for a trip injury. The Court also ruled that the woman’s distraction caused her fall, that there was sufficient lighting, and that the failure to refresh the paint on the kerb did not constitute an act of negligence.

Clearly there’s a lot to consider when you are deciding whether to make a public liability claim. At BPC lawyers, we have the knowledge and experience necessary to help you through every step of the process. Based on evaluation of your unique circumstances, we will determine whether you have a viable claim. If so, we will then work to ensure you receive the compensation you deserve through a settlement or court hearing. Contact us to learn more about how we can help you today.

sydney compensation lawyers

Can I Sue My Doctor for Delayed Cancer Diagnosis?

Imagine being diagnosed with cancer. Now imagine being diagnosed with advanced or terminal cancer and learning that, if it had been detected sooner, it could have been cured.

Imagine the shock. The disbelief. The fear. The anger. After all, this isn’t your fault. You’ve always had regular check-ups, exercised, followed a healthy diet. You’ve always listened to your doctors, because you trusted them. Now you’re wondering if you can sue the doctor(s) who failed you when it mattered most. The answer is: “yes”.

In Australia, mistakes frequently result in the misdiagnosis of colon, lung, cervical and oesophageal cancers. According to one estimate, roughly 12% of cancer cases involve failure of a doctor to take the appropriate medical actions for the patient’s welfare. Patients in this type of situation often sue their doctors. Specifically, they do so when their diagnoses are delayed due to their doctors’ failure to:

  • require follow-up appropriate screening and testing, such as biopsy, mammography, colonoscopy, CT scan or MRI;
  • spot common cancer symptoms or follow up with the patient concerning symptoms;
  • decipher laboratory and test results;
  • identify a condition as cancer (resulting in misdiagnosis);
  • acquire necessary patient information and history;
  • spend enough time with patients to address symptoms;
  • follow up with patients and the referred specialist(s).

In the scenario detailed above, you could also pursue a medical malpractice claim.  In order to be successful, however, you must generally prove:

  • the failure to diagnose your illness caused your suffering;
  • the doctor’s negligence was the immediate cause of your physical and/or mental harm;
  • the treatment provided by your doctor did not meet Australian standards.

You should also be aware that there are certain criteria that are specific to a medical malpractice claim based on delayed diagnosis. In Tabet v Gett, the High Court established that a plaintiff in a medical malpractice case could not win based solely on the argument that there was a possibility of a better result if the doctor wasn’t negligent. What this means in a delayed diagnosis case, is that you must prove that there would have been a significant difference in the treatment rendered and the result given a prompt identification of the disease.

For instance, you would have to present evidence that earlier identification and intervention would have kept your cancer from spreading to the extent that it has. Or you would have to prove that an inoperable tumour, for example, could have been excised if the doctor had diagnosed your condition sooner. You may also prevail if you could show that the chemotherapy or radiation therapy you must now undergo wouldn’t have been necessary if you had originally received a prompt and proper diagnosis.

Another important distinction is that in most medical malpractice cases, you can seek compensation for all past, current, and future costs based on the losses you have incurred. This may include but is not limited to compensation for pain and suffering, loss of income due to the inability to work, the inability to work, medical expenses and so forth.  In a delayed diagnosis case, you may also seek compensation for these losses, however the amount ultimately awarded if you win your case will be based on the expenses that can be directly attributed to the delay.

Having said that, applicable laws are constantly evolving and tend to be complicated. Because the outcome will largely depend on your unique circumstances, it is important to obtain proper advice if you are suffering from cancer that was not diagnosed promptly and you’re now considering legal recourse.

If you are thinking about suing your doctor, you should also be aware that there are strict deadlines (usually three years, depending on the jurisdiction) for doing so. Because the clock starts upon discovery of the delayed diagnosis, it is important to seek legal advice as soon as possible so you don’t lose your right to sue. Your life is already at stake so don’t leave anything to chance. Contact our Sydney Compensation Lawyers today.

product liability

Product Liability in New South Wales

Accidents happen! It’s one of the oldest platitudes in the books, often accompanied by a rueful smile and half-hearted shrug in the face of hapless error or unexpected circumstances. And with recent studies reporting that 22.4% of Australian class actions in the past 20 years have been made up of product liability claims, it is clear that however clichéd, accidents DO indeed happen, and are often the result of faulty products. If you or a loved one have suffered from a product-related injury or illness, it is important that you contact a lawyer as soon as possible to discuss your case and explore your possible claim options, because very tight time limits apply.

What Must Be Proven?

Under Australian law, a claimant must demonstrate three key issues in order to bring a successful products liability claim:

  • Injury: That there has been an actual harm suffered.
  • Breach of Duty: That there was a duty of care owed to the injured party and that duty was breached.
  • Causation: And that the harm suffered was caused by that breach of duty.

Three Legal Basis’ for a Products Liability Action:

When bringing a cause of action based in products liability, you will have to decide upon which basis you want to argue your claim. There are three common areas in which product liability claims are based, including the negligence theory of tort law, breach of contract, or a breach of Australian Consumer Law (ACL) under the federal statute Competition and Consumer Act of 2010. Though not the only legal theories to base a products liability claim, they are the most common and most successful.

  1. Tort Law: The fault-based negligence theory of tort law relies on the understanding that manufacturers and sellers of goods owe a duty of care to consumers. This duty of care presumes that the purchasers and users of the goods can rely upon the safety of the goods, and are reasonably protected from the foreseeable risks of injury when appropriately using the product.

If and when a product causes injury or illness due to error of construction, faulty mechanics, or defective design, the injured consumer will have a negligence claim against the manufacturer.

  1. Causation Requirements: Under tort law, there are generally two requirements to demonstrate causation: (1) the negligence was the factual causation of the injury…that is, that the harm would not have happened but for the negligence of the manufacturer, & (2) that the scope of liability included the injury that was caused…meaning that the harm could be reasonably foreseen as a result of negligence.
  1. Breach of Contract: If a buyer enters into a contract with a seller, and the product contracted for caused injury or illness due to defect, the buyer may be able to seek relief against the seller under the theory of contract law. Less popular than the other two theories of relief, the remedies for this cause of action are often limited by the language of the contract itself. Often, there will be a distribution of liability for any defect outlined in the express and/or implied terms of the contract.
  2. Breach of Australian Consumer Law: A theory of strict liability, a breach of the statutory duty of the ACL will hold manufacturers directly liable to plaintiffs for both personal injury and property damages that are the result of a defective product. Under the ACL, a product will be deemed ‘defective’ when ‘their safety is not such as persons generally are entitled to expect.’
    1. Causation: Under ACL, causation may be demonstrated by either showing that the plaintiff has suffered a loss or damage due to a safety defect or by showing that the manufacturer failed to comply with a consumer guarantee and the plaintiff suffered injury as a result.

Products liability claims often involve a variety of different legal concepts including (but not limited to) contract law, statutory law, business law, personal injury, and insurance law. Because of this broad intersection of legal topics, these cases can become very complex and, without the experienced guidance of a lawyer, may drag on forever and become costly and frustrating. Reach out to today to discuss your case with a trained products liability lawyer whose expertise will help you represent your best interests and receive proper compensation for your suffering

Medical Negligence Claims FAQ's

Medical Negligence: The Commonly Asked Questions Answered

If you have suffered from medical negligence, then it’s likely you have plenty of questions needing to be answered. In this podcast, Sydney Personal Injury Lawyer, Courtenay Poulden addresses those questions and reiterates the importance of getting legal advice very early.

 

Dan:

Every year thousands of people undergo surgery or other types of medical interventions and it’s not surprising, giving the sheer volume, that mistakes or oversights occur. What happens when they do and, more importantly, what can you do about it? Well, today I’m with Courtenay Poulden, an Accredited Personal Injury Law Specialist and Multi-Award Winning Lawyer. Courtenay, what should people personally do in these types of matters?

 

Courtenay:

Well, it’s promptly getting advice quickly. A lot of people are under the misconception that every failed medical procedure is due to negligence but they need to find out whether there’s something the doctor or the hospital or the nursing services have done that really is more than just one of the normal consequences of a medical procedure.

 

Dan:

How do they find this information? Is it, do they access reports or what do they do?

 

Courtenay:

The first step’s to get hold of the records from the various doctors who are involved or hospitals that have been involved, have them reviewed initially by lawyers such as us, and then ultimately refer them off to an independent doctor who can comment on the performance of the doctor or the hospital involved.

 

Dan:

Courtenay, is it the case that prior to your first consult with a person that may have suffered a potential medically negligence matter that they should acquire all those files through freedom of information first and then bring them to you?

 

Courtenay:

No, no, no, we’ll do all that for them. What we need people to do is contact us, let us have a general discussion and meet with them to talk about what’s happened. Then, if we decide that the case is worth investigating we’ll go ahead and get all of those for them.

 

Dan:

What about time frames? Now I know generally personal injury matters are very, very tight. In medical negligence matters, generally is there a time frame?

Courtenay:

It’s pretty much the same. They’re governed by the Civil Liability Act which is a general rule imposed at the three year limitation period. That’s not three years necessarily from the date of the medical procedure or hospital admissions, that’s three years from the date that you know you’ve got a case, when your cause of action is what the law calls discoverable. When you’re at that stage your three years start and it’s pretty strict from then on so it’s not the sort of thing to mark around and put out of your mind and think you can come back to it three or four years down the track.

 

Dan:

How long do these matters typically take? If there’s an action when would people start to see a damages payout?

 

Courtenay:

Well, that depends pretty much on the complexity. There’s some pretty easy cases where if you went in the hospital and you had to have your left leg operated on and they did your right, that would be a pretty easy case because there’d be no dispute about fault and those types of things. Mostly in medical negligence sort of cases the issues are pretty complex. The reason for that is that most people go into hospital or go and see a doctor when they’ve already got a problem. What we’re talking about is the extent to which that problem has been made worse or you’ve got other additional complications.

 

It’s normally not as easy as some other cases where someone starts all afresh without any injuries like a car accident. In these sort of cases you’ve got to take into account the fact that you had a problem in the first place, that’s why you went to the doctor. That’s why it makes it a little bit more complex than your sort of run of the mill court cases or compensation cases.

 

Dan:

These cases don’t always involve surgery do they? I suppose that by and large that they take up a fair proportion of them but …

 

Courtenay:

Well, I wouldn’t say that. I think for the by and large it’s not surgical type cases.

 

Dan:

Okay.

 

Courtenay:

The ones we most commonly see involve failure to perform surgery or failure to intervene when there’s been investigations done that should have indicated to a doctor to do something or where the investigations weren’t done at all because the doctor didn’t think that that test was necessary. Rather than it being so much the result of some active procedure it’s often a failure to act. Pretty common cases, for example, are late diagnosis of cancer. You go along to a doctor or a hospital, have a number of tests done which you show later down the track should have been an indication of the early incidence of cancer, for example.

 

If that’s so, that’s the failure of anybody to intervene an act that might be the negligent act.

 

Dan:

I suppose a take on message, Courtenay, is for people to get advice very promptly on these matters.

 

Courtenay:

That’s certainly the case because records should be obtained early. If there’s witnesses who are not doctors such as other family members who were present, their statements and evidence become vital so, yeah, there’s no reason to delay at all. On the contrary, you should get onto it quickly so that you also get some peace of mind as well, I think that’s pretty important for most people who are suffering sickness or illness.

 

Dan:

In terms of BPC, a free initial consult and no obligation consultation?

 

Courtenay:

Absolutely. Yeah, absolutely we will see someone. We will make a decision from an early … We do a bit of our own which doctor type inquiries from people we do know. We speak to doctors who we’ve had in cases over the years, just if to get a general idea whether a matter’s worth investigating. If so, yeah, we’ll do all those investigations at no cost. Of course, if the matter goes ahead they’ll be a fee arrangement, if it doesn’t it’s nice to have been able to help you and best wishes.

 

Dan:

Courtenay, thanks for joining me.

 

Courtenay:

My pleasure.

 

What Goes On At BPC

What Goes On At BPC

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

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

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

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

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

Courtenay Poulden

24 March 2017

Liability For Passenger Death Or Injury On An Airplane

Liability For Passenger Death Or Injury On An Airplane

BPC Aviation Personal Injury Section

Liability for passenger death or injury on an airplane

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

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

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

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

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

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

Extent of liability

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

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

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

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

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

Where can claims be made?

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

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

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

Authors:

Courtenay Poulden – Partner

David Ford – Special Counsel

Practical Guide to National Disability Insurance Scheme & Compensation

A practical guide to the National Disability Insurance Scheme and Compensation

One of the regular concerns we have as personal injury lawyers is trying to give advice to plaintiffs (and indeed defendants) at settlement conferences as to what the net position will be taking into account such matters as Medicare and Centrelink refunds.

It is often necessary to make some educated guess as to what Centrelink may require by way of a payback or what the preclusion period for receiving benefits may apply in the future.

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

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

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

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

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

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

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

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

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

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

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

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

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

Amount of compensation

$4,000,000.00

Step 1.2 – reduction for Centrelink and Medicare

$11,380.00

$3,988,620.00

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

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

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

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

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

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

Courtenay Poulden

6 December 2016

Whose Fault, Doctor or Hospital

Whose Fault, Doctor or Hospital?

The Supreme Court recently had occasion to look at the respective responsibilities of a hospital and a treating specialist when a patient tragically died in Newcastle Private Hospital.

In this case the patient died after undergoing elective surgery. The deceased’s family brought a claim for their nervous shock and for the loss of the financial benefit of the deceased.

In the case of Stefanyszyn -v- Brown & Newcastle Private Hospital, the specialist doctor admitted that he had breached his duty to the deceased. He filed a Cross Claim arguing that the hospital was at fault as well.

What happened to the deceased is that a loop of suture material was inadvertently looped around the deceased’s bowel resulting in a blockage and the onset of infection.

The specialist said that there were a number of steps that could have been taken by the hospital staff during the recovery process which should have been followed and communicated to him so that he could properly assess the deceased’s condition.

There are some very important comments in the Judgment of Justice Schmidt about the way in which a hospital and its specialist doctors have a responsibility to take reasonable care for a patient. The basis of a hospital’s duty arises out of the hospital/patient relationship. There is a distinction between the duty owed by a hospital which functions as a place where medical care facilities are provided for the use of physician and his patient, and that of a hospital which functions as a place where a person in need of treatment goes in order to obtain treatment provided by the hospital. The treatment provided in an Emergency Department of a hospital provides a common place example of the latter. In the former case, the patient’s use of the hospital is the result of an arrangement made between the hospital and the physician by which the physician is granted hospital privileges. In such cases, the hospital is not responsible for the negligence of the physician. The hospital is only responsible for those employed to provide the services the hospital provides to the patient.

In the result it was concluded that the duty which the hospital owed the deceased extended not only to the nursing and paramedical services it provided her, but also to the services which should have been provided to her by all members of the clinical team it assigned to help the specialist.

The Court found that both the specialist and the hospital each independently owed a duty of care to the deceased. While those duties no doubt overlapped given the way that the care was administered, the respective duties never passed from one to the other.

Justice Schmidt ultimately found that the hospital failed the deceased in a number of respects and apportioned liability between the specialist and the hospital.

We are regularly called upon to advise in hospital negligence cases and this decision provides some guidance on how Courts will examine cases where there is fault in more than one party.

Courtenay Poulden