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Kate Henderson

Slip and Fall? How Much Compensation Can I Claim in NSW?

Slip and fall incidents can result in serious injuries. Victims often sustain head injuries, broken bones, back and neck injuries, and more. Depending on the severity of their injury, a victim may require extensive medical treatment and face a long recovery. During this time they may be unable to work, compounding financial and emotional stress.

If you were injured in a slip and fall accident stemming from another person’s carelessness, you may be able to make a compensation claim. While it is true that some cases end with substantial settlements or awards, the amount an injured person is entitled to depends on the specific situation and medical evidence obtained. Here’s what you should know in order to manage your expectations.

The case assessment

The first step (after you’ve reported the fall and received medical attention) is to consult a qualified personal injury lawyer. Choose one equipped with the skills and experience to evaluate your circumstances. He or she will assess:

  • the cause of the slip and fall accident;
  • where it happened;
  • the extent of your injuries;
  • the extent of costs incurred for medical treatment, hospitalisation, rehabilitation and so forth;
  • your inability to work (if applicable);
  • financial hardship;
  • any other relevant issues.

To facilitate this process, when meeting with a lawyer you should bring the following:

  • CCTV footage (if available). Following a slip and fall injury, always make enquiries about whether the incident was captured on CCTV and if so, ask the occupier not to delete the footage;
  • an incident report (if available);
  • clear photographs of the possible causes of the accident and the conditions at the scene depicting the cause of your injury;
  • all medical reports within your possession such as hospital discharge summaries documenting your injuries, treatment and future treatment requirements;
  • copies of medical bills, prescription receipts and so forth;
  • proof of loss of earnings such as pre-injury pay slips showing your regular earnings and post-injury records confirming time required away from employment;
  • witness statements;
  • any other material documenting the time, date, location and cause of the accident.

During this initial stage, your lawyer is likely to ask you about other ways in which your injury has changed your life. For example, you may be asked about your ability (or inability) to perform routine tasks (such as shopping or household chores). Your lawyer may also ask how your injury has affected your ability to do the things you used to enjoy (such as exercising or playing with your kids). Finally, your lawyer may ask about your mental health prior to and after the accident.

With this information in hand, your lawyer can devise a legal strategy and provide tailored advice to you. At this stage, he or she may also provide a rough idea of how much you can claim however this will depend on stabilisation of your injuries and the medical evidence obtained.

How is compensation calculated?

Your lawyer will obtain evidence and proof of your losses to establish the value of your claim. This is then used to determine how much compensation you are likely to receive.

However, you should be aware that there is no set formula for this calculation. This is because no two people, and no two slip and fall cases, are exactly the same. Even if you sustained the same injury or injuries as someone else, your road to recovery will probably be quite different.

So when it comes to compensation, think of it this way. What would your life be like if you had not suffered the injury? What will the future hold as you continue to recover from your injury? In this context, some specific questions should be addressed. One is whether you will be able to keep working (assuming you were working before). Another is whether you will be faced with ongoing expenses associated with your injury.

Remember, the purpose of compensation is to restore you to a position in life where you are likely to have been if the injury had not occurred. Depending on the circumstances of your accident and where the injury occurred, your entitlement to compensation will be governed by legislation however your lawyer will advise you further in this regard during the initial meeting.

Proving your case

Areas and buildings that are accessible to the public must be safe, cleaned regularly and well maintained. This means you may be able to seek compensation if you were injured in a slip and fall accident due to negligence at a:

  • grocery store;
  • rental property;
  • school yard;
  • sporting event;
  • shopping centre;
  • car park;
  • or any other public place or building.

To make a successful claim, however, you must prove that the owner or occupier of the premises is at fault, because he or she:

  1. didn’t identify a potential hazard (such as a damaged step or footpath), or failed to correct and/or failed to warn of the hazard by blocking it off or providing adequate signage;
  2. created the hazard by doing something such as spilling something on the floor that you walked on and fell or constructing an unsafe structure/hazard.

However, determining who was at fault isn’t always easy. Let’s say, for example, that a patron in a hotel bar spilled his or her drink and no one cleaned it up, leading to your slip and fall accident. Or what if a waiter in a restaurant dropped a bowl of soup or ice cream, with the same results? Who should you make your claim against? This is why securing the services of an experienced personal injury/public liability lawyer is so important.

Contributory Negligence

In addition to proving that someone else’s negligence caused your slip and fall, you must also prove there were no mitigating factors in order to be fully compensated. Specifically, you must prove that your own carelessness did not contribute to or cause the accident. This means you must demonstrate that you weren’t distracted, intoxicated, or acting foolishly when you slipped and fell. If there was some fault on your behalf, it is likely that your compensatory damages will be reduced to take into account contributory negligence.

If your personal injury lawyer determines you have a valid claim, you can seek compensation for pain and suffering, past and future loss of earnings, past and future medical expenses and other special losses suffered due to your injury. In many cases, these matters can be settled on an unlitigated basis prior to hearing, so your case may not have to be determined by a Court.

At BPC Lawyers, we have considerable experience and success handling personal injury cases. If you were injured in a slip and fall accident and need legal advice or representation, please contact us today.

how to find a personal Injury lawyer

How to Best Choose a Personal Injury Lawyer to Handle Your Claim

Life is unpredictable and unexpected injuries can occur resulting in the need to engage a personal injury lawyer. Retaining a personal injury lawyer is an extremely important decision which often needs to be made in very stressful circumstances.

Most personal injury lawyers in New South Wales offer a free initial consultation for prospective clients in order to discuss potential claims. This is an opportunity to meet in person so that the lawyer can advise whether or not you have a viable claim and you can decide whether or not you feel comfortable and confident with the lawyer and wish to retain their services.

It is imperative that you retain a lawyer who is right for you and your specific claim. Different lawyers have their own unique styles and methods of practice however it is important that a client feels confident in the abilities of their legal representatives and comfortable contacting the lawyer to discuss the claim as it progresses and to provide instructions along the way.

It is a good idea to research the lawyer’s reputation and current personal injury experience. It is important that the lawyer has recognised experience dealing with insurers and defendant’s lawyers and resolving personal injury claims. It is also prudent to consult a lawyer as soon as possible as there are time limits governing personal injury claims.

The common law and legislation governing personal injury claims is constantly evolving. It is important to engage a lawyer with up to date specialist expertise and knowledge in the specific area of personal injury litigation. There is a significant advantage in retaining a lawyer who is an accredited specialist in personal injury law certified by the Law Society of New South Wales. Gaining accreditation through the Law Society of New South Wales offers legal practitioners a recognised means of differentiation with certified expertise in specialised areas of law. Specialist accreditation also assists members of the public and the legal profession identify solicitors who have expertise in a particular area of law such as personal injury law. It is prudent for a client to retain a legal practitioner who is an accredited specialist in personal injury law on the same basis that a patient would inevitably consult a specialist rather than a general practitioner in relation to complex medical issues and treatment options.

Preparation prior to the initial consultation is also extremely beneficial. In addition to having relevant documentation and information available for review by your prospective lawyer, it is a good idea to prepare a list of questions to take with you to the first meeting. Examples of questions that you may wish to ask your prospective personal injury lawyer are as follows:-

  1. How many personal injury cases in this particular area of law has the lawyer handled?
  2. What percentage of the lawyer’s practice is in this particular area of personal injury law?
  3. How long has the lawyer been in practice and/or been a recognised accredited specialist in personal injury law?
  4. Will the lawyer handle the case personally or will it be passed on to other legal practitioners or support staff within the firm?
  5. If other lawyers or staff will be performing work on the file, is it possible for you to meet them?
  6. What issues does the lawyer identify in relation to your particular claim?
  7. How long is it anticipated that your case is likely to take?
  8. What type of experts does the lawyer intend to engage to obtain expert evidence in support of your claim?
  9. You should also ask about legal costs as personal injury lawyers are required to disclose information about how they charge and provide a costs agreement to prospective clients.

If you or a loved one has suffered injuries in compensable circumstances, you need an experienced personal injury lawyer with specialist expertise and knowledge of the laws governing the particular claim. It is not wise to engage the first law firm you see advertised on television or a billboard. A better strategy is to ask family, friends or lawyers who practice in other areas for personal recommendations. You may also conduct online searches using keywords that describe your specific claim such as “personal injury lawyers NSW”, “medical negligence lawyers NSW”, “motor vehicle accident lawyers NSW” however personal recommendations are generally the most reliable source of referral.

BPC lawyers are a boutique law firm who specialise exclusively in personal injury claims for plaintiffs. All of our partners are accredited specialists in personal injury law certified by the Law Society of New South Wales. We pride ourselves on providing a personal level of service to ensure a good working relationship with each of our clients. Many of our clients are in vulnerable situations due to their injuries and having a lawyer who is familiar with their file and who is friendly and approachable as the claim progresses removes a lot of the stress associated with litigation.

Feel free to take advantage of our no obligation initial consultation to investigate your potential personal injury claim. At BPC Lawyers, we don’t promise the world only to send your case to a junior lawyer. Your case will be managed by a partner, ensuring you get the best level of service, support and results. We take pride in being the lawyers who other lawyers trust. BPC Lawyers have specialised in compensation claims for plaintiffs for over 30 years, ensuring our clients receive the compensation they deserve.

what to bring to first appointment

What to Bring to Your First Personal Injury Appointment

For many of us, the thought of seeing a lawyer can be overwhelming, but there are some things that you can do, particularly at that first consultation that will not only alleviate the stress but also ensure that your first meeting with your lawyer is productive.

In this podcast, Kate Henderson, an Accredited Personal Injury Specialist and a Multi-Award Winning Lawyer discusses the topic.

 

Transcript:

Dan:

Kate, this can often be a stressful occasion for clients. What can they do to ease their stress?

 

Kate:

The more information that a client can bring to the initial appointment the better so that the lawyer can understand the issues. A little bit of preparation and gathering documents always helps.

 

Dan:

And, Kate, is there any specific that is really useful for the person to bring to that first consultation?

 

Kate:

We need to have details of the accident, or the circumstances surrounding the injury, so the first bit of evidence, for example in a motor vehicle accident, that is always good is if there’s a police report. If the client can gather the police report, or at least have the police event reference so that we can obtain that document ourselves. Or, if it’s not a police matter but there’s been an injury on property, a incident report that will have details of what’s happened in a contemporaneous record with date and time, and circumstances, and any witnesses. That’s really the most important document to bring so that we know precisely what’s happened, what’s been recorded, and we can identify any witnesses and be able to contact them. That’s focusing on liability. The other thing that we need is details of medical providers. So, if a client can bring details of names and addresses of all their treating doctors we can then have the client sign medical authorities and we can obtain the relevant medical records.

 

That said, some clients are very overwhelmed by what’s happened to them, so we do understand that sometimes a client just isn’t in a position to gather that material. We can certainly do it, it just means that the process sometimes takes a little bit longer. But there’s no need to be stressed leading up to that appointment. We see clients on a no-obligation basis, so if they come in and they prepare a list of questions and things that they need to get their head around, that’s always good. It helps the professional relationship moving forward if both parties are comfortable with each other and know exactly what’s needed.

 

Dan:

Kate, what if they want to bring a support person? Is that completely okay as well?

 

Kate:

Absolutely. It’s sometimes a good idea to bring a support person because there’s normally a lot of information to digest and sometimes it helps to have somebody else that’s been present. We’ll always confirm things in writing though. Sometimes matters can be quite personal and people would prefer to keep those matters to themselves, so that’s fine. It’s really a matter of individual choice. So, if a client wants to just come alone that’s totally fine as well, and we’ll always confirm what’s been discussed in writing, and what’s required moving forward. But if a client likes to have another family member, or friend, or some other emotional support that’s absolutely fine as well.

 

Dan:

Kate, thanks for joining me.

 

Kate:

You’re welcome.

 

Dan:

That’s Kate Henderson, an accredited personal injury law specialist. Now, certainly the take-home message for listeners who may have suffered an injury is that, while it’s useful to have information of that first consultation with your lawyer, if you haven’t any don’t feel discouraged, as many people in these circumstances often don’t bring anything with them to that first meeting.

 

 

 

Statutory Paybacks to Centrelink and Medicare

Statutory Paybacks to Centrelink and Medicare Following Receipt of Compensation

In most cases, standard settlement terms allow a period of 28 days for payment of settlement monies to a claimant following receipt of statutory “clearances” from Medicare and Centrelink. A compensation payer has statutory obligations to notify Centrelink and Medicare following resolution of a claim and to attend to statutory paybacks prior to releasing settlement/judgment monies.

Centrelink

Part 3.14 of the Social Security Act 1991 (Cth) imposes an obligation on a “compensation payer” to reimburse the Commonwealth any “compensation affected payments” received by a “compensation recipient” during the “lump sum preclusion period”. This means that a person who is responsible for the payment of compensation to a claimant must reimburse the Commonwealth any compensation affected payments received by a claimant during the relevant preclusion period. The preclusion period is calculated by reference to Section 117O of the Social Security Act. The preclusion period varies in each individual matter as a formula is applied based on the settlement/judgment amount and whether a claimant has received periodic compensation payments, a lump sum compensation payment or both.

Compensation affected payments include a range of social security benefits including unemployment benefits, various disability pensions and other payments and allowances. A full list of relevant payments may be found in Section 17 of the Social Security Act.

Liability to reimburse Centrelink generally arises following settlement/judgment if a claim for economic loss has been made. A compensation payer must notify Centrelink of the settlement/judgment amount. Centrelink then applies the statutory formula and provides written notice to a compensation payer confirming the recoverable amount. Upon receipt of a recovery notice, the compensation payer becomes liable to repay the amount specified in the notice. It is a strict liability offence for an insurer to make a payment to a claimant before any monies owing to the Commonwealth have been reimbursed. The insurer’s liability to the Commonwealth is discharged upon payment of the amount specified in a recovery notice.

Liability to reimburse Centrelink usually only arises in circumstances where a claim for economic loss has been pursued by a claimant. For claims that resolve without a component for economic loss, a request for a clearance usually results in a clearance being issued confirming that no payback to Centrelink is required. Insurers usually request a clearance even in such circumstances so as to ensure that they have discharged any liability to the Commonwealth.

In order to avoid unnecessary delays in receiving settlement/judgment monies at the conclusion of a claim, it is important to notify Centrelink and request a clearance as soon as possible.

Lawyers who act for claimants must ensure the prompt execution and return of all necessary documentation so as to avoid unnecessary delays. Lawyers must also ensure that all documents are completed properly otherwise they are likely to be rejected by Centrelink resulting in delays and financial hardship to claimants who have had their Centrelink benefits suspended following settlement/judgment.

In circumstances where a claimant is suffering financial hardship or has other extenuating circumstances, it is recommended that lawyers contact Centrelink directly to request that a clearance be given priority. This information should also be conveyed to the insurer or the insurer’s legal representatives at the time of settlement so as to avoid unnecessary delays.

Medicare

The Medicare payback scheme is governed by the Health and Other Services (Compensation) Act 1995.

In circumstances where a claimant has received Medicare benefits arising from medical expenses in respect of the compensable injuries for which compensation has been claimed, the total value of the benefits must be reimbursed to the Commonwealth if the claim resolves for a sum in excess of $5,000.00.

The “notifiable person” (usually the insurer or compensation payer) must notify Medicare in writing within 28 days of the date of judgment or settlement. Notification may be made by completing a Section 23 Notice titled “Medicare Compensation Recovery Notice of Judgment or Settlement”.

It is important that lawyers acting on behalf of claimants promptly request a Medicare History Statement following lodgement of a claim so that all Medicare benefits previously received in respect of a claimant’s compensable injuries may be identified and a Notice of Charge issued. A Notice of Charge is only valid for a period of 6 months and it is therefore important for lawyers to regularly update these notices to ensure that a valid Notice of Charge is available at the time of settlement.

A claimant is required to complete the Medicare History Statement to the best of his or her recollection and does not need to cross reference each individual benefit with records obtained from treatment providers. Medicare will contact a claimant if an issue arises or if there appears to be an error. It is extremely important that a claimant completes the Medicare History Statement promptly and returns the completed documents to Medicare. If the documents are not returned to Medicare within the prescribed timeframe of 28 days, Medicare will deem all listed benefits as being related to the claim and will issue a “deemed” Notice of Past Benefits for the full amount whether or not such benefits were in fact related to the subject claim.

To avoid unnecessary delays in claimants being paid the full amount of their settlement/judgment monies, lawyers acting on behalf of claimants should attempt to ensure that there is always a valid Notice of Charge retained on file so as to avoid the need for advance payments. A copy of a valid notice should also be provided to the insurer at the time of settlement so as to avoid an advance payment inadvertently being made.

If there is a valid Notice of Charge at the time of settlement, this amount can usually be included as part of a claimant’s claim for out of pocket expenses. A compensation payer is then only required to attend to payment of the amount specified in the Notice of Charge to discharge their liability to Medicare following settlement/judgment.

If there is no valid Notice of Charge at the time of settlement/judgment, an “advance payment” representing 10% of the total settlement/judgment sum may be made. In the event of an advance payment being utilised, notice must be provided to a claimant pursuant to Section 33A of the Act of the intention to make an advance payment. Any advance payment must also be made within 28 days of the judgment/settlement. Medicare then have a period of 3 months to conduct a reconciliation and issue a refund once the payback figure has been determined.

Claimants can avoid the need for a 10% advance payment being made in circumstances where there is an expired Notice of Charge but no additional injury related benefits have been paid since the last Notice of Past Benefits was issued. In such circumstances, a claimant may complete a Section 23A Statement and return it to the compensation payer with the other settlement documentation. The insurer will then only be required to pay the amount specified in the expired Notice of Past Benefits.

It is an offence for a compensation payer to pay the claimant any part of the compensation amount unless the required payment has been made to Medicare or the specified amount has been withheld from the claimant. In the event that settlement monies are disbursed prior to reimbursement to Medicare being made, a compensation payer is liable to make the payment over and above the settlement funds. Criminal sanctions also apply as a result of failure to comply with such obligations.

Want to Assess damages in Nervous Shock Claims. Contact BPC Lawyers Today.

Assessment of damages in Nervous Shock Claims

BPC Lawyers have successfully acted for many plaintiffs in respect of nervous shock claims pursuant to the provisions of the Civil Liability Act 2002.

Nervous shock claims can be brought by a person suffering pure psychiatric injury following circumstances that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

In order to succeed in a nervous shock claim, it is necessary to obtain medical evidence diagnosing a recognisable psychiatric condition which must be more than a normal grief reaction.

Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock as follows:-

Section 30(2)

The plaintiff is not entitled to recover damage for pure mental harm unless:

  • the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or 
  • the plaintiff is a close member of the family of the victim.”

A reference to a “close member of the family” is limited to a parent of the victim, the spouse or partner of the victim, a child or step child of the victim, or a brother, sister, half-brother or half-sister, or step brother or step sister of the victim.

Strict time limits apply to claims for personal injury including nervous shock claims. A 3 year limitation period is imposed in relation to commencement of legal proceedings which runs from the date of the relevant event.

It is often difficult to assess the amount of damages in nervous shock claims. BPC Lawyers successfully acted on behalf of a mother who suffered nervous shock as a result of the traumatic events surrounding the birth of her child. As a result of medical negligence, the plaintiff’s son is profoundly disabled. BPC also acted on behalf of the child in separate proceedings successfully achieving a substantial confidential settlement to cover his extensive lifetime care, medical treatment and therapy needs and other associated losses.

The decisions of the Supreme Court of New South Wales and the New South Wales Court of Appeal in relation to the mother’s claim are summarised below to provide some guidance in relation to the assessment of damages in nervous shock claims and personal injury claims for reduced earning capacity.

Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863

This case concerned the psychological impact of the defendant’s negligence during the birth of the plaintiff’s son who was profoundly disabled and requires lifetime care and support due to his birth related injuries. The plaintiff pursued damages for nervous shock including economic loss as she had been unable to return to employment following the birth of her significantly disabled son.

At a very late stage of the proceedings, the defendant finally admitted breach of duty of care. It was left for the Court to consider the extent of damage suffered by the plaintiff and the quantum of damages arising from the negligence.

Both parties tendered medical evidence and the psychiatric and psychological experts participated in a joint conclave and produced a joint report prior to the trial. These experts also gave evidence concurrently during the trial. The plaintiff relied on expert evidence from Dr Stephen Allnutt, psychiatrist and Ms Rafaela Luca, psychologist. The defendant relied on evidence of Dr Lisa Brown, psychiatrist. Ultimately, the trial judge preferred the opinions of Dr Allnutt and Ms Luca and rejected the expert opinion of Dr Brown whom the trial judge found under appreciated the magnitude of the plaintiff’s injuries.

The plaintiff claimed damages for economic loss arising from her psychiatric injuries. The defendant submitted that the plaintiff had made a choice not to return to work so that she could care for her disabled son and that it was open to her to employ carers and return to some form of employment. This issue was addressed by lay evidence and the medical experts. Dr Allnutt and Ms Luca gave evidence in respect of the plaintiff’s preoccupation with her disabled son, difficulty concentrating on other tasks and her related anxiety and inability to trust others to care for him. The plaintiff lacked trust in the medical profession and felt strongly that she had to be available to her child when required. There was a constant risk that her son’s condition would deteriorate at short notice including vulnerability to seizures and hospital admissions requiring a high level of vigilance and constant concern and attention. This heightened, ongoing stress was not conducive to recovery and any work environment would require flexible work practices and a supportive employer.

The trial judge found that there was no issue that the plaintiff would have returned to her pre-injury full time employment at the expiration of her 12 months maternity leave but for her psychiatric condition. The trial judge found that with appropriate treatment and support, the plaintiff could probably work part time but practical issues limited her return to work. The trial judge considered that the plaintiff would require at least 18 months of treatment and then she assessed the plaintiff’s working capacity to be no more than 50%. The trial judge then considered the realistic prospects of the plaintiff exploiting her theoretical earning capacity and concluded that those prospects were effectively non-existent. Accordingly, the trial judge determined that damages for future economic loss should be assessed on the basis that the plaintiff would not be able to exploit any residual earning capacity before retirement age. Significantly, despite the fact that the Court found that the plaintiff had a theoretical earning capacity, no evidence was led by the defendant of the availability of work which would meet her capacity. Accordingly, the plaintiff received a full award for future economic loss and loss of superannuation calculated on the basis that she had no ability to exercise any residual earning capacity for the remainder of her working life.

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 per Simpson JA with Macfarlan and Meagher JJA agreeing

The defendant appealed the above decision of the Supreme Court of New South Wales. The New South Wales Court of Appeal has provided a helpfully detailed headnote, summarising the appeal as follows:-

“The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what employment remained open to the respondent. Further, it was contended by the appellant, that the primary judge ought to have taken the approach outlined in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 which concerns the assessment of the chance that circumstances other than the defendant’s negligence would, in any event, have brought about the injury of which the plaintiff complains.

In relation to the first basis, the Court was satisfied that the primary judge was not in error in accepting the opinions of Dr Allnutt and Ms Luca over that of Dr Brown. The Court considered that the appellant had not advanced sufficient reasons to prefer the opinion of Dr Brown, particularly given that the weight of the remainder of the evidence did not support that opinion.

In addressing the second basis, the Court affirmed the approach taken by the primary judge in assessing future economic loss. In particular, the Court affirmed that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit any residual earning capacity lies on the defendant, taking into account all of the circumstances that apply to the plaintiff. No error was demonstrated by the appellant in this regard.

The Court held that assessment on Malec principles was not appropriate, there being no issue that the appellant’s negligence was the cause of the respondent’s condition, and it was not part of the appellant’s case that there was a chance that the respondent would, without the appellant’s negligence, have suffered disabling psychiatric injury.”

In light of the above, the appeal was dismissed on the following basis:-

  1. The primary judge was not in error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown.
  2. The primary judge was not in error in not applying the approach discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. The chance that the respondent would have developed the injury was accounted for in the conventional allowance made for “vicissitudes”.
  3. The primary judge was not in error in casting an onus on the defendant to prove that the plaintiff could exploit any residual working capacity.
  4. There is not a sufficient basis to conclude that the award of damages to the respondent should be reduced due to any settlement reached on behalf of her son.

BPC successfully acted on behalf of the plaintiff in relation to the above trial in the Supreme Court of New South Wales at first instance and was successful in the New South Wales Court of Appeal in having the appellant’s appeal dismissed.

BPC Lawyers has also successfully acted for many plaintiffs suffering nervous shock and psychiatric injuries as a result of negligence. If you believe you have a claim for nervous shock, we can offer a complimentary consultation to discuss your options and to provide legal advice in relation to your prospects of success in pursuing a claim. We confidently back ourselves to represent you with a “no win, no fee” guarantee.

Please do not hesitate to contact our offices in order to discuss a potential claim. 

Kate Henderson

28 August 2017

Civil Claim against the Police

Civil Claim against the Police

It is acknowledged that the job of a police officer is very important to society and police officers deal with extremely difficult situations.

Police have numerous responsibilities and powers. However, circumstances sometimes arise in which physical force is used unnecessarily causing injury. These circumstances may give rise to a claim against the police if the physical force or conduct was not warranted.

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

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

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

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

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

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

Our client claimed aggravated damages on the basis that:-

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

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

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

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

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

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

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

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

Kate Henderson

31 January 2017

BPC Lawyers successful in the High Court of Australia

BPC Lawyers successful in the High Court of Australia

Extremely important decision for severely injured plaintiffs

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

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

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

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

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

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

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

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

The High Court also stated as follows:-

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

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

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

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

Multiple Causation in Medical Negligence Claims

Multiple Causation in Medical Negligence Claims

Elayoubi v Zipser [2008] NSWCA 335

This case is a very good example of an unusual outcome that may occur in the event of two defendants having failed to warn a patient of a particular outcome (multiple causation).

In this case, the mother of the plaintiff had undergone a classic caesarean section with respect to the birth of her first child. This meant that she should not have been allowed to proceed to vaginal delivery of her second child (the plaintiff). The mother could not remember the advice (if any) that had been provided to her following the birth of her first child. At the time of her second pregnancy (with the plaintiff many years later) she attended upon another obstetrician and hospital. Each of them negligently failed to enquire of the first hospital about the nature of the first caesarean section delivery.

The first defendant failed to record the nature of the operation that was clearly a classic caesarean rather than a lower segment caesarean section (that would have permitted vaginal delivery). If only one of these sets of defendants (ie. the first hospital as opposed to the second hospital/obstetrician) was negligent, then the plaintiff would succeed. However, curiously, if both of them were negligent then the plaintiff, on a conventional approach, might not have been able to establish causation for the reason that the first hospital’s negligence in failing to record the procedure could not be said to have led to any damage in the event of the second defendant having failed to make an enquiry about the nature of the first caesarean section delivery. Basten JA suggested in such circumstances, on the “normative” approach, both defendants would be liable.

The plaintiff suffered spastic quadriplegia and intellectual disability and it was common ground that his condition was the result of deprivation of oxygen during the birth process, consequent upon a uterine rupture. The plaintiff failed at first instance in the Supreme Court of New South Wales but succeeded on appeal. Judgment was ultimately entered in favour of the plaintiff against the first, second and third defendants in the sum of $7,281,319.00 plus costs.

This summary is provided by Kate Henderson, a senior solicitor at BPC lawyers. Kate is an accredited specialist in personal injury law and has a particular interest in medical negligence claims including birth injury claims. Kate has acted for a number of plaintiffs suffering cerebral palsy as a result of adverse birth events. Kate has successfully acted for plaintiffs suffering cerebral palsy in New South Wales, interstate, in the United Kingdom and Singapore. For more information or to speak with Kate, please contact us on (02) 8280 6900 or kate@bpclaw.com.au.

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