All Posts By

David Ford

Single Vehicle Collision

Single Vehicle Collision – What Are My Rights?

While accidents involving motor vehicles are a frequent occurrence in Australia, one of the common misconceptions is that if your accident involves only your vehicle, you can’t claim compensation for any injury you might suffer.

Single-vehicle accidents are sometimes referred to as “blameless accidents”, in that no other party is at fault, and can commonly occur when a driver suffers a sudden illness such as a heart attack or stroke; when the vehicle suffers an unexplained mechanical or vehicle failure; or when the car unavoidably collides with an animal on the road, among other examples.

Under the no-fault compulsory third party motor vehicle insurance schemes that exist in most states and territories of Australia, someone injured in a single-vehicle accident can still make a claim for compensation but there are conditions and restrictions that apply, as we discuss in this article.

What does the law say?

After the NSW Government introduced the Motor Accidents Injuries Act 2017 (NSW) (“the MAI Act”) in December 2017, a new hybrid scheme of benefits and support under the state’s third-party insurance system was introduced to provide statutory benefits for up to 26 weeks after the accident where no person was at fault, and modified common law damages for persons with injuries other than ‘minor injuries’, where fault is established.

Statutory benefits can cover medical treatment, wage loss and funeral expenses. Any application for statutory benefits must be made within three months of the accident otherwise a claim to entitlements may lapse.

Claimants with minor injuries (defined as soft tissue and/or minor psychological injuries) or those who were wholly or mostly (‘mostly’ is defined in the legislation as contributory negligence of 61 percent or more) at fault in the accident are limited to six months of weekly payments of statutory benefits.

The statutory benefits payable under the MAI Act are payable by the relevant insurer who, in the case of a single-vehicle accident, is the insurer of the vehicle.

The MAI Act also ended the entitlement to gratuitous care damages – where a family member provides care to the injured person without payment – as either a statutory benefit or as common law damages. Costs incurred in employing someone to provide care services to the injured person, or to their dependents, is still recoverable as paid care.

The Act limits common law damages to economic loss (loss of earning capacity; costs relating to accommodation or travel; financial management of damages; reimbursement for income tax paid or payable on statutory benefits); and damages for non-economic loss where the injured person’s degree of permanent impairment is greater than 10% and their injuries are not ‘minor’.

Single-vehicle accidents that occur at work

If your accident occurs while you are at work or on a work-related journey, Section 3.35 of the MAI Act states that the injured person is not entitled to statutory benefits if compensation is instead payable under a workers’ compensation claim.

This created a problem where a workers’ compensation claim failed or the benefits ceased, impacting the injured person’s ability to make a motor accident CTP claim within the required time frame.

While an injured worker could pursue a common law claim, damages were limited to non-economic loss, lost wages and loss of earning capacity but not medical treatment and attendant care, which were considered statutory benefits.

Section 151Z of the Workers Compensation Act 1997, however, requires a claimant to repay out of the damages claim, all workers’ compensation paid, including treatment and care paid by the workers’ compensation insurer.

A problem arose because s151Z of the workers’ compensation legislation requires a claimant to repay out of the damages claim all workers’ compensation paid (including treatment and care paid by the workers’ compensation insurer).

This problem has been rectified by the Workers Compensation Legislation Amendment Act 2018 which now allows claims for treatment and care after a workers’ compensation claim has finalised; and allows a claim for statutory benefits to be made within three months after workers’ compensation payments cease. Because recovery actions arise only where there is a liability ‘to pay damages’, recovery actions apply only where the claimant has a non-minor injury.

Seeking legal advice

As is clear, despite your accident being ‘blameless’, it can be a complex and time-consuming process to claim compensation for an injury sustained in the incident. Dealing with insurance companies, differing pieces of legislation, and separate claims made at common law, require the expertise and experience of compensation lawyers.

If you’ve been injured in a single-vehicle accident and are unsure of your rights and entitlements, contact BPC Lawyers today. We’ve won multiple industry awards for our work in this complicated area so call us now on (02) 8280 6900 for a free legal consultation about your particular circumstances.

Injured at an Airport

I’ve Been Injured at an Airport. Can I Claim Compensation?

Whether you are there as a traveller or an employee, an airport is a busy – and potentially dangerous – place. For travellers, hazards may include slippery floors, crowded baggage claim areas, faulty stairs, escalators and more. For employees, working in congested areas or around large, complex machinery also carries certain risks. Of course, all of this begs a question. Can you claim compensation if you get hurt at an airport? Keep reading to find out.

Injured traveller’s and workers may be able to claim compensation for airport injuries

Your ability to claim compensation for an injury sustained while passing through or working at an airport depends on several factors. The most important of these is whether you have an insurance policy that provides coverage for accidents and injuries.

As an airline passenger, this type of insurance may be included with your ticket. Although flight/traveller’s insurance is quite comprehensive, it is crucial that you understand what’s covered and what’s excluded. By doing so, you’ll limit the chances that your claim is denied or disputed due to insufficient cover or misunderstandings. It is also imperative that you have evidence to support your claim.

If you’re an airport employee, you may be able to make a successful claim if:

  • You can prove that there was a violation of Australian occupational health and safety regulations; and
  • someone was negligent; and
  • that violation, coupled with negligence, caused or contributed to the accident in which you were hurt.

Qualifying airport injuries

Airport authorities/operators are legally obligated to provide a safe environment for travellers and workers. This means they must take reasonable steps to ensure that: 1) the airport is free from hazards; 2) that adequate warnings about existing or potential hazards are provided; and 3) that any hazards are addressed promptly.

Accordingly, you may be able to claim compensation if you suffered one of the following:

  • A slip, trip or fall injury;
  • a cargo or baggage injury;
  • a trolley or baggage carousel injury;
  • an injury sustained due to a hazard in the concourse;
  • any injury caused by inadequate, improper or otherwise defective infrastructure.

How to claim compensation for an airport injury

If you had current travellers’ insurance when you got hurt, you can simply claim compensation from the provider. However, if you didn’t get travel insurance or the provider says your injury isn’t covered, it is best to consult an experienced airport injury lawyer to discuss other options (if any).

For example, you may be able to claim compensation from the person/agency  responsible for your baggage or cargo injury. However, you will only be successful if you can prove that 1) the person/agency was negligent; and 2) that the negligence caused or contributed to your injury.

In any case, it is usually worth pursuing compensation. According to some estimates at least 200,000 travel insurance claims are made here each year.  Of those, only a handful (approximately 10 percent) are denied.

Making a claim for foreign airport injuries

You can claim compensation for an injury sustained at a foreign airport if you had international travel insurance at the time. These policies usually provide cover for cargo injuries, baggage injuries, inflight injuries and injuries sustained while you are in another country. However, not all policies provide all these types of cover. Therefore, as we have already noted, it is important that you understand what the policy includes when you purchase the insurance.

Foreign airport/destination injury claims can also be tricky because they often involve different laws and languages. To complicate matters even further, they may sometimes involve international agreements and other obstacles. At BPC Lawyers, our legal team has the skills and experience needed to ensure that you get the compensation you deserve.

In summary

No one wants to think about getting hurt while they’re traveling through or working at an airport. For travellers, an injury can easily ruin or force the cancellation of a holiday or business trip. For an airport employee, it can hinder their ability to do their job. The good news in either case is that it is possible to claim compensation for an airport injury.

As we have discussed, there are different methods for pursuing compensation depending on your specific circumstances. The best-case scenario if you were injured while travelling through an airport is that you had current international or domestic travellers’ insurance at the time. As long as the policy provided cover for your situation, you can simply claim compensation from the provider.

Airport employees can also pursue compensation for injuries sustained at work. In most cases, however, they must prove that the injury stemmed from negligence or a violation of applicable rules and regulations.

If you were hurt at an airport in Australia or abroad, our legal team is here to help. Contact us to schedule an initial consultation today.

hit and run accident

What to Do After a Hit & Run Accident

Have you been injured in a motor vehicle accident since 1 December 2017?

If so, your claim is governed by the provisions of the Motor Accident Injuries Act (NSW) 2017.

Being involved in a hit and run accident figures as a worst nightmare for most drivers. In such situations it is understandable to have visons of not being able to claim compensation because the party that caused you to be injured has ‘done a runner’.

Fortunately, this is not the case in NSW where insurers are required to be a part of the Nominal Defendant Fund, meaning a person injured by an unidentified vehicle can make a claim through the fund and not be left without adequate treatment or compensation.

First Things First

There are numerous reasons why another driver may flee the scene of an accident they caused. They could be driving under the influence of drink or drugs, they may be unlicensed, uninsured, or they may simply panic when visualising the likely costs of their act.

In any event, as the injured partner, your first priority is that you ensure the safety of yourself and anyone travelling with you by getting off the road and away from the accident scene. Emergency services and police should be immediately notified.

Once these urgent things have been attended to, it is important to try and collect as much information as possible about the accident scene and the car that hit you. This may involve you or someone with you consulting witnesses to see if they can identify the make, model, colour and any distinctive features of the other car, its licence plate number, a description of the driver and/or passengers in the car, and the direction the car was coming from.

Collect the names and contact details of any witnesses as these may be required later.  You should also try to make notes of the street name where the accident occurred, the closest cross street, any nearby landmarks, shops, or parks, the time of the day, weather conditions and direction you were travelling.

Provide all of this information to the police if they arrive at the scene or at a police station within 24 hours of the accident. You will also need to visit a medical practitioner to report any symptom or injuries and have them assessed. Be sure to obtain copies of both the police accident report and your medical report as these will be later needed for insurance claim purposes.

What do I need to do to make a Nominal Defendant claim?

Where the claim and driver that hit you remain unidentified, you can make a Nominal Defendant claim through the State Insurance Regulatory Authority. They will allocate you a CTP Insurer who will manage your claim and pay your compensation if your claim is successful. This claim needs to be made within 28 days from the date of the hit and run accident.

If the claim is successful, you can claim for:

  1. Medical, rehabilitation and hospital expenses (including any potential future expenses);
  2. Loss of earnings or earning capacity (including any potential future loss of earning capacity);
  3. Home modification and attendant care expenses, if seriously injured;
  4. Pain, suffering and loss of enjoyment of life;

In order for your claim to be successful, you will need to show that the unidentified vehicle did cause the accident. You must also show you undertook “due search and enquiry” to try and identify the offending vehicle, by methods such as speaking to witnesses, ascertaining whether any CCTV cameras in the area recorded the accident, and liaising with police.

Some of the tasks the insurer will require you to undertake are as follows:

  1. Posting an advertisement in your local newspaper asking for details of the driver or potential witnesses to your accident.
  2. Asking local businesses if they have CCTV footage of the accident (if your accident occurred outside a business).
  3. Attending homes near the scene of the accident to see if they are any witnesses.
  4. Posting on community social media page(s) asking witnesses to come forward.

After you have undertaken these steps, you will need to provide the insurer with details of the steps of the steps you have taken to identify the vehicle, any information you have obtained and copies of any online and/or newspaper advertisements forming part of your enquiries.

The insurer may also require you to provide them with further documentation.

The importance of good advice

As it is clear from the above points, there is quite a lot to do in order to make a successful Nominal Defendant claim, at a time when you may be recovering from injury and/or remain traumatised by the incident itself. In this circumstance, the importance of trustworthy legal advice and guidance is invaluable.

At BPC Lawyers, we are motor accident compensation specialists, with a number of industry awards to our credit. In terms of the things you need to do as outlined above, we can help you.

We can gather necessary evidence such as names, registration numbers and insurance details of the vehicles involved, as well as receipt for hospital care, medical treatment and medication.

By managing all stages of your claim within the relevant time frames, we can ensure you obtain the compensation you deserve to ease your pain and suffering,

For a free upfront consultation, if you have been involved in a hit and run accident, contact us today on (02) 8280 6900.

motor accident damages claim

Do You have a Motor Accident Damages Claim (non-minor injury) and You have been Self-represented up until the Present Time?

After 78 weeks from the date of your accident, you can settle your damages claim with the CTP Insurer.

If the CTP Insurer has agreed you are eligible for compensation for your injury, and pain and suffering, then you will receive an offer of settlement for those injuries in addition to any claim you may have for past loss of earnings and future loss of earnings.

If you are not eligible to receive compensation for your injury, then your damages claim will be restricted to compensation for past and future loss of earnings.

If you are self-represented then when you receive the offer of settlement from the CTP Insurer, and you decide to accept the offer, then you should be made aware of the provisions of Section 6.23 of the Motor Accidents Injuries Act 2017 (NSW).

This section provides that a claim for damages by an injured person cannot be settled within two (2) years after the motor accident (unless you are entitled to additional compensation for injury).  Furthermore, the claim for damages cannot be settled unless the following occurs:-

  1. The Claimant is represented in respect of the claim by an Australian legal practitioner, or
  2. The proposed settlement is approved by the Dispute Resolution Service (DRS).

Furthermore, the DRS is not to approve the settlement of the claim unless satisfied the settlement complied with any applicable requirements of or made under this Act or the Motor Accidents Guidelines.

It is suffice to say you should seek advice from a specialist accredited personal injury lawyer before accepting settlement of your damages claim.

At BPC Lawyers, we have accredited personal injury specialists who will advise you as to whether or not the offer of settlement from the CTP Insurer is reasonable and should be accepted by you.

If we are of the opinion the offer should not be accepted by you, then we can assist you in further preparation of your claim for damages to achieve the appropriate amount of compensation.

injured in a motor vehicle accident

BPC Lawyers – Best Advice from Specialists

Are you self-employed and have been injured in a motor vehicle accident after 1 December 2017?

The Motor Accidents Injuries Act 2017 provides reimbursement for loss of income for both employed and self-employed injured persons.  Whilst there are generally no difficulties in ascertaining the pre-accident earnings of an employed person, it is now apparent that CTP Insurers are finding it difficult to properly calculate the pre-accident earnings of a self-employed claimant.

Pre-Accident Weekly Earnings (PAWE) are defined in Schedule 1(4) of the Act.

“Gross earnings” is not defined in the Motor Accidents Injuries Act.  However, it is clear in the definition of PAWE, the term refers to the gross earnings received by an earner as an earner.  The issue for determination is therefore the amount of gross earnings received by an injured person in self-employment in the twelve (12) months before the motor accident, expressed as a weekly average.

We are presently acting for a number of clients who are self-employed and have a gross annual income in excess of $200,000.00 per annum.  Self-employed persons have a number of fixed costs which are deducted from their gross earnings to determine profit, such as:

  1. Rent;
  2. Leasing of motor vehicles;
  3. Office equipment;
  4. Computers;
  5. Secretarial services;
  6. Administration costs; and
  7. Depreciation.

Unfortunately, there have been instances where a CTP Insurer has taken in to account these fixed costs when calculating a self-employed person’s weekly earnings.  Despite the fact the injured person has been unable to work at all but is still incurring these ongoing fixed costs.

For example, one of our clients, who has gross earnings in excess of $200,000.00 per annum, was advised by the CTP Insurer they have calculated his weekly earnings to be the sum of $386.00.

This assessment is difficult to understand when the injured person’s weekly lease payments on a motor vehicle are in excess of $400.00!

At BPC Lawyers, we have the resources to be able to properly determine the weekly earnings of a self-employed person and will assist those persons in firstly seeking an internal review with the CTP Insurer. If this proves to be unsatisfactory, then we can proceed further with an Application for the matter to be determined by a Merit Reviewer appointed by the Dispute Resolution Service (DRS).

Calculate Car Accident Injury Compensation

How to Calculate Car Accident Injury Compensation for Accidents Occurring Before 1 December 2017

In a perfect world, obtaining compensation for injuries sustained in a car accident would be easy. In reality, it’s not. This is because the circumstances of your case dictate the type of compensation you can seek. On top of that, you can’t make a claim based on a simple estimate. Instead, specific methods must be used to calculate various types of compensation.

While a knowledgeable personal injury lawyer can certainly handle all of these matters for you, you can lessen your stress and uncertainty by learning the basics. Here’s what you need to know about calculating car accident injury compensation.

Types of compensation available in New South Wales

If you have been hurt in a road accident in New South Wales, you may qualify for compensation:

  • loss of income due to your inability to work because of your injury;
  • past and ongoing medical expenses due to injury;
  • continuous pain and suffering causing a loss of enjoyment with your life;
  • nurse or carer’s fees.

A brief explanation of each follows.

Loss of Income

If you’ve been unable to work because of the injuries you sustained in a NSW road accident, you can seek compensation for your loss of income. However, there is a significant catch.  This caveat is that the law limits the amount you may receive. Specifically, the  Motor Accident Compensation Act 1999 includes provisions for restrictions based on your  gross income. Under the law, that figure cannot be more than triple the average weekly earnings of New South Wales workers  in the most recent quarter. If it is, it is not counted. The maximum nett weekly earnings allowed is presently the sum of $5,008.00.

Past & Ongoing Medical Expenses

If you were injured in a road accident, the responsible party may be liable for payment of your relevant medical expenses.

Another important factor applies if you received government benefits to cover your medical expenses. If this was the case, these benefits should be refunded through the compensation amount. Any medical expenses that were covered by your own private insurance should be refunded the same way.

Ongoing Pain and Suffering

To be compensated for pain and suffering, you must meet a certain preexisting injury standard. This is calculated based on the percentage of your body adversely affected by the accident. To qualify, your injuries must permanently affect at least 10 per cent of your body. This percentage must be determined by qualified medical professionals based on strict guidelines.

The purpose of this is to prevent exploitation. However, this often has unintended consequences. In many cases, crippling injuries are wrongly dismissed for this type of compensation. Sometimes, amputation of fingers and toes, as well as permanent skin damage, don’t warrant compensation for ongoing pain and suffering.

The Motor Accident Compensation Act of 1999 also limits these claims. Specifically, it caps payouts on pain and suffering claims at $546,000.

Nurse or Carer’s fees

If you require special home care for your injuries after the accident you may be eligible for compensation. It doesn’t matter if your carer is a professional (nurse) or a friend, nor does it matter if you paid the carer or not. Keep in mind, however, that the Motor Accident Compensation Act 1999 also limits these payouts.  In accordance with this law, you must also prove that you required care for more than six hours per week and for more than six months.

How is compensation affected by contributory negligence?

The amount of compensation awarded depends on who is at fault. If the other person was solely responsible, compensation is awarded accordingly. However, an allegation of contributory negligence is a common legal strategy in personal road injury cases. When this happens, the lawyer for the defendant, or the defendant’s insurance provider, alleges that the injured party’s carelessness also contributed to the accident. If there is sufficient proof of this, both parties will share responsibility and the amount is allocated accordingly.

Basically this means that if your negligence also contributed to the accident, you won’t get as much compensation as you would otherwise. A percentage of fault in road accidents is calculated based on:

  • whether you exceeded the speed limit;
  • whether you were intoxicated;
  • whether you knowingly got in the car with an intoxicated driver;
  • whether you were wearing a seatbelt.

What if no-one was at fault?

Traffic accidents can be considered “blameless” meaning as a result of a sudden illness or vehicle failure.  Each case needs to be decided on the facts, and we can advise you in regard to this particular type of claim.

Your responsibilities regarding deadlines

In addition to everything we have just detailed, you should also be aware that there are strict deadlines for filing paperwork and other relevant material. Again, your lawyer should be able to handle most of this for you. However, there are also some things that you can and should do yourself. If you were injured in a New South Wales road accident you should:

  • Report the matter to police as soon as possible, but definitely within 28 days of the accident.
  • Serve a Personal Injury Claim Form (or have your lawyer serve one) within six months after the accident.
  • Get an officially sanctioned assessment of your medical condition within 12 months after it has been stabilised if you are seeking compensation for non-economic losses.
  • Serve any Section 85A paperwork (if applicable) within two years 18 months from the date of the claim.
  • Ensure your case is referred to Claims Assessment Resolution Service (CARS) or initiated in the District Court within three years from the date of the accident.

Contact us for help with your car accident injury case today

If you were hurt in a motor vehicle accident, your health and your recovery should be your first priority. However, it is also important that you get the compensation you need to cover relevant expenses. Time is of the essence, so contact us to arrange an initial appointment today.

Motor Vehicle Accidents Passenger Rights

What Are My Rights as a Passenger Involved in a Car Crash?

It’s something millions of people do every day – probably without a second thought – but in truth, you are risking your life every time you settle into the passenger seat in a motor vehicle. That’s because there’s always a chance that the person driving the car you’re in could do something to cause an accident, or you may get caught up in a crash caused by someone else. In other words, as a passenger you have no control over what happens while you are in the car. The good news, however, is that you do have certain rights as a passenger involved in a car crash.

Although applicable laws may vary, you generally have the right to:

  • Obtain certain information, such as the names, addresses, vehicle registration numbers, driver’s licence and insurance information of all drivers involved in the accident. If you have any trouble obtaining this material directly, you can get it from the police.
  • Receive help getting to a doctor or hospital if you were hurt. Even if you aren’t in pain immediately after the accident, you should still see a doctor who can treat and document any injuries that aren’t readily apparent.
  • Get a copy of the official accident report from the police.  Ask the investigating law enforcement officer when the report will be ready and how to get your copy.
  • Refuse requests for statements after the accident from another driver’s insurance company. If you do want to make a statement, be sure to consult a qualified personal injury lawyer first.
  • Consult with a lawyer specialising in this area.

Remember:

You are required to report the accident to the police within 28 calendar days after the accident unless a police officer attended the motor accident.

If you or a loved one were hurt in a car crash when someone else was driving, it is important to consult a qualified lawyer as soon as possible. Based on his or her experience, the lawyer can do an efficient assessment of the situation to determine if the injured party has a viable claim. If so, he or she can also determine who you should take action against, and what type of action is appropriate.

In some cases, this is an easy decision. Let’s say you sustained a nasty case of whiplash when the driver of the car you were riding in stepped on the accelerator instead of the brake, causing the vehicle to jump a curb and hit a building at a high rate of speed. In these circumstances, you would simply file a claim against the driver’s insurance provider.

But what if you sustained the same injury as a passenger in an accident involving another car? Should you file a claim against the insurance provider for the driver of the car you were riding in, or the other driver’s insurance provider? In this scenario, the answer is: “it depends”. Technically, you can make claims against both. However, in a situation in which only one driver was clearly at fault, you would only make a claim against that person’s insurance company.

If both drivers are at fault, insurance companies and lawyers will assess the contributory negligence of each driver to determine how blame is allocated and how compensation should be awarded. Because insurance providers seldom agree on the key issues, this process can be lengthy and contentious. Even so, chances are that you will be duly compensated -eventually.

But what if the insurance provider for one, or both of the drivers don’t want to provide the compensation that you are entitled to, or don’t want to compensate you at all? In those circumstances, you can sue the driver(s) and/or their insurance provider(s).

Depending on your unique circumstances, you may be able to secure compensation for:

  • Past and future medical expenses;
  • home care;
  • alterations made to your home that are necessitated by your injury/injuries;
  • loss of past and future income due to your inability to work;
  • loss of enjoyment of life (your inability to participate in activities that you enjoyed in the past).

If you were a passenger who was injured in a car accident, you may feel overwhelmed – especially if you can’t work and the bills are piling up. Even if you’re considering legal recourse, you may not know where to start. Or perhaps you just can’t cope with the thought of dealing with insurance companies or lawyers. With this in mind, it’s important that you have someone on your side who will help you get the compensation you deserve. At BPC Lawyers, we are here for you, so contact our Compensation Lawyers Sydney today.

aviation accidents

Aviation Injuries: What You Need to Know

In this podcast, Accredited Personal Injury Law Specialist, David Ford talks about the types of injuries people typically sustain on flights and what are the necessary actions the injured should do under certain circumstances.

Speaker 1: You’re listening to a BPC podcast.
Dan: You might be surprised, but the numbers of people injured on flights both in Australia and overseas is relatively high. In this context, it’s not, of course, always related to plane crashes. Well, to find out more, I’m with David Ford, a personal injury lawyer from BPC Lawyers who is an expert in aviation matters. David, what types of injuries do people typically sustain on flights?
David Ford: I think the best response to that is that, of recent times, I have been involved in a number of cases where I’ve acted, those passengers that have been scalded by hot coffee or hot tea, and sustained, in two cases, second-degree burns.
Dan: Wow, that’s fairly significant. What about other injuries typically that occur on flights? Like I’m assuming people might trip over, they might go to the lavatory, or the bathroom and slip and fall. Do you see that type of thing occurring?
David Ford: My experience in my previous cases, has been more so that a passenger has got up from their seat to either go to the bathroom, or perhaps stretch their legs, and there’s been no warning that there’s turbulence about to be encountered, and therefore the seatbelt sign has not come on. I know of one example where a lady left her seat to go to the bathroom, there was no warning as such, and the plane did hit quite severe turbulence. And as a consequence, she ended up fracturing her ankle. That case was settled.
David Ford: Each case depends, of course, on its facts. And I’ve always said to not only my clients, but also my friends and family members, it’s always wise to have your seatbelt fastened at all times, anyways, when you are on an aeroplane during the journey.
Dan: David, now, you probably should mention that these type of accidents, and potential action, legal action, that might arise, it’s always predicated on that whole basis of negligence, isn’t it? Trying to be able to prove that the airline, in this case, was negligent, and did not take the appropriate steps to minimise a foreseeable risk. Is that how it works?
David Ford: That is correct. Look, you must prove negligence. The definition, are they an accident, is that it’s an injury, must be caused by an unusual or unexpected event or happening that is external to the passenger. But yes, you must prove negligence.
David Ford: I can give a good example of another case that I had several years ago where my client was with his wife on a journey to, flight to Bangkok. They were joined by a passenger, sitting behind them, who was quite frankly, a bit intoxicated, and quite boring in his conversation. And he was drinking from his duty-free bottle of bourbon, which you’re not allowed to do on a plane. The air hostess, I think, once they observed that, but didn’t say anything to the gentlemen. Long story short, there was a fight, ensued, when they told this chap to go back to his seat and he hit my client over the head with a bottle of bourbon.
David Ford: It wasn’t a big case as such, but it was certainly resolved because that’s another example of where the airline should have taken steps to minimise the risk to that particular passenger from being assaulted by a fellow passenger. That’s another example.
Dan: David, now, listen, in relation to jurisdiction, I’m just thinking that, how does jurisdiction play out? So if you board a flight here, say in Sydney, and you’re on route to Los Angeles, and a debacle happens somewhere in-between, where does the jurisdiction lie?
David Ford: The jurisdiction lies in the fact that Australia is a [inaudible 00:04:09] to the Montreal Convention. And we have adopted that protocol, which sets out how people … Well, a number of issues in relation to air travel, but certainly, Article 17 deals with the basis upon which you can make a claim for damages. If you are, for example, I’ve had clients that were injured four hours out of Dubai, but they left Sydney, or Brisbane, or any major city in Australia, that’s where the jurisdiction comes from. Because you’re in the Montreal Convention, and the fact that you embarked, or even in the process of disembarking upon an Australian city.
David Ford: I have set out on our BPC website, a very good summary of the reason why you are entitled to make a claim pursuant to the Montreal Convention. So any client that needs to seek that information, can go to our website and see that particular article written.
Dan: Now David, in relation to more catastrophic injuries sustained in accidents, how do they play out? I’m assuming it’s the same sort of regime?
David Ford: Look it is. I was not involved to any great extent, but I did assist a solicitor who was involved in seeking compensation for parties that had family members on the MH370, the Malaysian aeroplane that disappeared in the South Pacific Ocean. And also, that particular lawyer was also involved in claims involving the MH17 Malaysian flight that was shot down over the Ukraine. Basically, those sorts of cases are what is known as similar to compensation to relatives claim, where you can claim for damages for the fact that you had a person or family member on the plane who, because of their untimely death, you’ve suffered consequentially, a financial loss.
David Ford: Those are the sort of claims that can be involved if someone therefore is, unfortunately, all those passengers were deceased. But if, as the consequence of some negligence, there was a death on the plane, that similar sort of claim can be made.
Dan: Now David, time limitations, in relation to these types of matters, is fairly strict?
David Ford: That is a very important question. The answer simply is this. You have two years, from the date of the incident, in which to commence proceedings, seeking compensation, under Montreal Convention. That time limit cannot be extended. It is a definitive period.
Dan: Now, what about seeking legal advice very early?
David Ford: Look, again, that’s a very important question. In all cases where you have to prove negligence, and you’d be surprised, even where you think it’s a case where it’s a clearcut case, where the insurer, well it is the insurer of the airline, but where the airline is liable, it is so important that you do contact a solicitor as soon as possible. Because the event, for example, one of the clients that, sustained quite serious second-degree burns, it was very important that I got a statement from not only the husband, but the father, but also the mother, as the circumstances around the accident, because they were very much upset and distressed at the time of the accident. And it was important to get the factual background in relation to the accident from them, while it’s fresh in their mind.
David Ford: Look, it’s just trite to say, after being in the … practising  in this jurisdiction for nearly 40 years, is that, no matter how good your memory is, your memory will, to a certain extent, fade, especially if it’s been quite a traumatic type of experience. And not only that, it may well be that in addition to the immediate family members, they may have been provided with contact telephone numbers of other people that witnessed the incident.
David Ford: It is always important in any case, to talk to independent witnesses to find out their recollection and record that recollection. As quite frankly, the courts tend to accept, I think more readily sometimes, in circumstances such as that the evidence of independent witness, whose got no actual financial interest in the outcome of the case.
Dan: The choice of a lawyer is important as well, I mean, given that this is a bit of a specialist area of law, isn’t it, within the realm of personal injury law, generally?
David Ford: It is. It’s far more specialised in the sense that the liability questions are important, and have to be determined. The actual quantum of damages, most good personal injury lawyers are able to put that together. But, I think the best way to answer the question is that there are a number of firms that do act on behalf of the insurance companies of these airlines. You tend to get, I think, a bit of an understanding as to their modus operandi, who you’re dealing with. It’s of assistance, I think, if you do regularly practise in the area, as opposed to someone who’s attempting to make one of these claims on a first occasion.
Dan: David, thanks for joining me.
David Ford: I appreciate that, thank you.
Speaker 1: Thank you for listening. If you have any questions, please call BPC on 0282806900.

 

 

minor injury in motor accident

What is “MINOR INJURY?”

If you have been injured in a motor vehicle accident since 1 December 2017, then your claim is governed by the provisions of the Motor Accidents Injuries Act (NSW) (2017).

After you have lodged a claim form with the green slip insurer seeking compensation for your injuries, you might have received a letter from the insurer, in which they advised they have classified your injury as being “minor”.

Pursuant to Section 1.6 of the Act, a minor injury is any one or more of the following:-

  1. Soft tissue injury;
  2. A minor psychological or psychiatric injury.

A soft tissue injury is defined in the Act as the following:-

“an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.”

If your injury is classified as being minor, then you will only receive statutory benefits for a period of six (6) months.

However, after the six (6) month period of benefits has ended, you may still be in a position where you are losing income as a consequence of your injuries and also require further ongoing treatment.

In many cases, you may have suffered an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) and unfortunately, such an injury is also defined as a soft tissue injury for the purposes of the Act.

However, if the injury to the nerve results in radiculopathy then it is not a minor injury.  The criteria for assessing whether radiculopathy is present, is set out in the guidelines.  For radiculopathy to be considered genuine, two (2) or more of the following clinical signs must be present:-

  1. Loss or asymmetry of reflexes;
  2. Positive sciatic nerve root tension signs;
  3. Muscle atrophy and/or decreased limb circumference;
  4. Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
  5. Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

We can assist you in finding out whether or not your injury has been properly classified as being minor.  If your injury is not minor, then you may be entitled to far more significant benefits than the statutory benefits as imposed by the Act.

Fracture

If you have sustained a fracture, which should be easily identified by plain x-ray, then prima-facia a bone fracture is not classified as a minor injury.  It will be necessary, however, to determine whether or not the fracture has long-term consequences which may enable you to pursue a claim beyond statutory benefits for past and future loss of income and in certain circumstances, depending upon the seriousness of the fracture you may be entitled to receive damages for non-economic loss (your bodily injury which results in permanent impairment and pain and suffering).

Scarring

If you have sustained an injury which results in permanent scarring to your body then this is not a minor injury.  Depending upon the severity of the scarring and its location on your body, there is a possibility you may be able to claim past and future economic loss if as a result you have suffered a loss of income, i.e. modelling or in the alternative, you suffer from a psychological or psychiatric injury which is not minor as a consequence of the scarring.

Please contact the accredited Personal Injury Specialists at Beilby Poulden Costello who will assist you in obtaining the proper amount of compensation to which you are entitled.

Gym Injuries & Compensation Claims

Gym Injuries and Compensation Claims

Before we know it, summer will be fast approaching and many of us will be wanting to shed a few kilograms acquired over the winter break by signing up for yet another gym membership. With this, every year, there is a significant spike in injuries being sustained at the gym and hence an awareness of your rights in the event of an accident, as well as what waivers may be included in the contract you signed in order to join the gym in the first place, is important to know.

Recent Events

Earlier this year, a gym made headlines when a fifteen-year-old boy was killed in an accident on the premises. Unsupervised, he was stuck underneath a 98-kilogram bar and remained that way for, what paramedics estimated to be, about half an hour before he was discovered. It was found that not only was the gym negligent in enforcing its supervision policy for gym members under the age of 16, but the staff was negligent in basic supervision as the injured patron had been undiscovered and incapacitated for so long.

After remaining on life support for a while, the boy’s family opted to turn it off and say goodbye to their child. Unfortunately, the accident could have been avoided by the basic fulfilment of gym policy and mitigated by someone finding the incapacitated teen sooner.

Personal Trainers and Liability

Many gyms hire personal trainers as contracted employees/“contractors” in order to reduce their own liability. Sometimes, this can make it more difficult for a client who is injured to seek legal remedy. In general, gym owners and personal trainers alike are considered to owe clients a duty of care. For the gym, they must take reasonable care in hiring the personal trainer (background checks, certifications, check with other employers, etc.). For personal trainers, they must take reasonable care that the exercise regime recommended by them to the client will not cause them harm.

It is important that if you are injured through a relationship with a personal trainer, you discuss your case with a lawyer to explore your claim options. In some cases, you will be able to bring a claim against both the gym and the trainer, whereas other times you will only be able to bring a claim against one or the other.

Liability Waivers & Gym Contracts

Everyone knows that signing a gym contract is a necessity for joining any gym, from the biggest 24 hours establishments to small boutique workout classes, all require a commitment. In this commitment, a liability waiver is often included. While courts are not strictly required to uphold the waivers in gym contracts (particularly unconscionable contracts that overly favour the gym’s interests), it is up to their discretion to decide how much of the gym’s liability you’ve agreed to waive. In general, if you were injured due to your own improper use of equipment, then your case will be weaker, whereas if you are injured due to faulty equipment, your claim will be stronger.

Negligence

If you are trying to file a claim against a gym, it is likely that you will be filing a claim of negligence. Australian law states that negligence is: “the failure to take reasonable care to avoid causing an injury to another person.” To prove this, you are required to demonstrate four things. First, that you were owed a duty of care. Secondly, that the defendant (the gym in this instance) breached that duty of care, either through failure to act or incorrect act. Third you must demonstrate that your injury or loss was foreseeable by a reasonable person in the defendant’s position. And finally, that your injury or loss was caused by the defendant’s breach of duty.

If you or a loved one have experienced an injury at a gym or because of a personal trainer, contact a lawyer as soon as possible. They will be able to examine your contract, discuss your case, and advise you about your potential claims.

Injured on the Roads while driving cycle. Contact BPC Lawyers today for help.

Your Rights as a Cyclist if you have Been Injured on the Roads

After 1 December 2017, if you are a cyclist and have been injured in a collision with a motor vehicle on New South Wales roads, then you will be able to claim damages pursuant to the provisions of the Motor Accidents Injuries Act (NSW) 2017.

Your claim can be made against the CTP green slip insurer of the motor vehicle or bus with which you had the collision and if the vehicle was unregistered then you are still able to bring a claim against the Nominal Defendant.

Pursuant to the provisions Division 2.4 of the Motor Accidents Injuries Act, the State Insurance Regulatory Authority (SIRA) is for the purposes of this Act the Nominal Defendant.

The writer has acted for many cyclists who have been seriously injured in accidents involving another motor vehicle.

It is now a common sight to see cyclists on our roads, both during the day and also at night.

The NSW Government has recognised this fact and has enacted new laws in relation to driver behaviour regarding cyclists.

Since 1 March 2017, drivers in NSW must leave at least one metre of space when passing a cyclist in speed zones of 60 km per hour or less. They must leave at least 1.5 metres in higher speed zones.

Furthermore, if it is safe to do so, drivers can cross centre dividing lines or continuous lane dividing lines to overtake a cyclist. They can also drive on painted islands and dividing strips to pass a bicycle when safe to do so. If it is not safe, drivers must slow down and wait until there is enough space to pass.

As far as cyclists’ behaviour concerning other motor vehicles, the minimum passing distance is not specified for cyclists and they are advised to leave sufficient room to avoid a collision when passing cars.

The writer has been involved in several cases where cyclists were thrown from their bicycle and sustained serious injuries and in one circumstance was rendered unconscious. It is therefore important if you are a cyclist at all time you have with you photo identification and also a mobile phone. It has also been mandated by the government there is a requirement for bicycle riders to produce photo identification when stopped by police who have suspected they may have committed an offence.

It is helpful if you also carry a photo ID in the event that a person or persons witness your accident and may wish to keep in contact with you and provide you with statement regarding your accident to assist you in your claim. I have been involved in a number of cases where the statements by independent witnesses were crucial in proving the cyclist was not at fault and the entire blame for the accident fell upon the driver of the motor vehicle.

It is always important to have a mobile phone with you to be able to photograph the registration plate of a motor vehicle if needed and also record details of the driver including taking a photograph of their driver’s licence.

All of this information will assist you when completing the Application for Personal Injury Benefits which is the new claim form required to be completed for all accidents after 1 December 2017 and must be lodged with the relevant CTP insurer within three months of the date of your accident.

There may also be circumstances where a cyclist has sustained injuries from falling off their bike because of defects in the road surface such as a pothole or other dangers such as loose gravel, however, these claims are governed by the provisions of the Civil Liability Act (NSW) 2002 and such claims against the local council, who are responsible for the maintenance of the road, require far more investigation.

The local council will endeavour to seek immunity from suit pursuant to the provisions of Section 43 of the Civil Liability Act. It will be necessary to seek the advice of an Accredited Specialist in Personal Injury Law with regards to proceedings of this nature.

If you are injured whilst riding your bicycle on NSW roads, then contact the specialist accredited lawyers at BPC Lawyers who will be able to provide you with immediate assistance.

Whiplash associated disorders

Whiplash associated disorders

“Whiplash associated disorders – (WAD)”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D R Ford

10 March 2017

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

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

One of the key factors when determining compensation payout is the expected age of retirement for the injured person.

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

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

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

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

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

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

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

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

This document had been served upon the CTP insurer.

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

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

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

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

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

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

If you have been injured and are seeking compensation, we can help. Compensation Lawyers Sydney at BPC Lawyers have represented injured Sydney and NSW residents for over 20 years, and we will be happy to offer a complimentary, free consultation to discuss your claim and determine whether you have a genuine claim for compensation.

David R. Ford, Special Counsel

Is it Possible to Claim Motor Accident Compensation If No One is at Fault? Call BPC Lawyers.

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

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

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

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

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

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

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

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

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

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

Furthermore, at Paragraph 73 Her Honour stated:-

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

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

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

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

David R. Ford, Special Counsel