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Scott Hall-Johnston

Bullying and Harassment in the Workplace

Bullying and Harassment in the Workplace – What Can You Do?

Bullying or harassment are rightly considered unacceptable practices in any part of society but what are your options for dealing with this behaviour if you experience it at your place of work?

In contemporary society, many – though certainly not all – employers and organisations will have detailed anti-bullying policies in place to deal with any instances of this behaviour. They do so because to ignore or fail to deal with bullying or harassing behaviour can leave them liable to later legal action for not providing a safe place to work.

There are a number of options you can take if you’re experiencing bullying or harassment at work, ranging from bringing it to the attention of the national Fair Work Commission, SafeWork NSW, or consulting specialist compensation lawyers about seeking workers’ compensation because you have sustained a psychological injury as a result of the behaviour. This article deals with the last circumstance.

What is bullying behaviour?

Bullying and harassment can take different forms and could constitute overt or less obvious behaviour. Essentially it involves verbal, physical, psychological or social abuse by a manager, colleague or another group of people at work.

Non-exhaustive examples of bullying behaviour include:

  • abusive or offensive language or comments directed at you;
  • aggressive and intimidating behaviour towards you;
  • belittling or humiliating comments directed at you;
  • sexual harassment, including unwanted touching;
  • practical jokes or initiation;
  • excluding you from workplace activities;
  • unjustified criticism or complaints.

The effects of bullying on a person are well documented. They can affect a person’s confidence and self-esteem, causing anxiety, depression and sleeplessness. Importantly for employers, these effects can also lead to a significant loss of productivity and wellbeing in the employee.

What should you do if you experience bullying and harassment at work?

The first thing to do is to check whether your company or organisation has an anti-bullying policy and, if so, what is the procedure for reporting this type of behaviour.

Secondly, if you’re confident and able to, you should directly inform the person responsible that you find their behaviour unacceptable and would like them to stop. You should also report the behaviour to an immediate supervisor, manager, health and safety or human resources officer, or a union representative.

Remember that employers have a duty to provide a workplace that protects the health and safety of their employees, including the psychological health of workers.

At this stage you may also want to consult a lawyer experienced in workplace and employment law issues to see what options you may have to stop the behaviour or seek redress for the damage it has caused to your life both at and outside of work.

Making a workers’ compensation claim as a result of bullying

If you believe bullying in your workplace has resulted in you having a psychological or psychiatric injury, you may be able to apply for workers’ compensation through the NSW scheme.

In order for a claim of this type to succeed you will need to provide medical evidence that supports your claim that you’ve suffered psychological or psychiatric injury as a result of workplace bullying. This evidence must distinguish your claim from those where an employee’s distress is caused by what’s called “reasonable management action” – such as having your work responsibilities changed, being transferred, demoted, disciplined, retrenched, dismissed or otherwise treated in a way that management can argue is reasonable.

Permanent impairment

In certain cases, a person may find they are unable to continue working due to the effects of serious workplace bullying. This may be said to cause permanent impairment, for which they may be eligible for a lump sum compensation payment. In order to prove this level of impairment, a specialist medical assessor –  trained in the exact method used to decide how much your psychological injury has affected your life and ability to function – needs to confirm that you have a permanent primary psychological injury that has produced at least 15 per cent “whole person impairment”.

It’s important to note that if you succeed in obtaining a lump sum payment for permanent impairment, any weekly workers’ compensation payments you may have been receiving will end.

If you believe your psychological or psychiatric condition has been caused by the negligence of your employer, work injury damages may also be available to cover past and future economic loss. Again, the 15 per cent whole person impairment threshold is used to determine this type of claim.

How can legal advice help?

Expert compensation lawyers such as the professionals at BPC will tell you that proving psychological injury as a result of workplace stress caused by something such as bullying is considerably more difficult than cases involving physical injury at work. But that’s not to say they are unheard of and the advice of legal professionals with expertise in this area is usually the difference between successful and unsuccessful claims.

In short, it can be a confusing and complicated landscape to navigate, particularly if you’re already experiencing anxiety and stress as a result of the bullying behaviour.

For this reason it’s highly advisable to seek out the guidance and advice of a law firm with expertise in workplace compensation claims help restore your quality of life and move on from the unreasonable behaviour of other people at your place of work. Contact award-winning BPC Lawyers today on 1800 431 572 for a free legal consultation.

Dangerous Recreational Activity

Injured Doing a Dangerous Recreational Activity? What You Need to Know…

As your parents probably told you, you can’t live your life wrapped in cotton wool. At some point most of us participate in a sporting, leisure or other recreational activity that has an element of danger. But what happens if you’re injured while doing so? Can you claim compensation for the effects of your injury?

In NSW, recreational activity is outlined in the Civil Liability Act 2001 (“CLA”) and includes:

  1. any sport (whether or not the sport is an organised activity);
  2. any pursuit or activity engaged in for enjoyment, relaxation or leisure;
  3. any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

In many of these situations, depending on the specific facts of your incident, you may be able to claim compensation for injury… that is, unless the activity is considered a ‘dangerous recreational activity’.

Dangerous recreational activities are defined in the CLA as those that involve a significant risk of physical harm, and injuring yourself while undertaking one will likely prevent you being able to claim any compensation.

What sort of activities are dangerous?

Much legal argument in cases involving dangerous recreational activity is devoted to whether the activity should be considered dangerous. Some examples of dangerous recreational activity – often found in the case law – including diving off bridges into bodies of water where the depth is uncertain or unknown, swinging off rope swings into rivers, shooting guns at night and riding bicycles in unsuitable environments.

Working out whether the activity poses a risk of significant harm involves an objective assessment – that of a reasonable person in the same position as the injured party – of the probability of physical harm and the seriousness of the harm which would or might then result. This degree of risk does not mean that it is “likely to occur” but is often expressed as “more than trivial”.

Using the reasonable person test, courts will generally assess both the nature and degree of the harm that might be suffered, as well as the likelihood of the risk occurring. Cases are often made more complex when factors such as time, place, competence, age and sobriety of the participant, equipment and the weather are considered as contributing to make a recreational activity dangerous.

How does the legislation treat dangerous recreational activity?

If you’re injured while undertaking a recreational activity that is considered dangerous and posed an obvious risk, and believe your injury is the result of another person’s negligence (such as that of the activity’s operator, for example), under the terms of the CLA that person cannot be held liable for the harm you have suffered.

To be clear, this means that where an activity poses a risk so obvious that a reasonable person in the same position would have identified it and refrained from participating in the activity, another person cannot be held accountable for your injury.

Many recreational activities will include a risk warning, perhaps provided by prominent signs or verbally by the operator of the activity before you undertake it. Where such a warning is provided in a manner that is reasonably likely to result in a person being warned of the risk before engaging in the recreational activity, the CLA says that no duty of care is owed to the participant in the activity in respect of the risk specified in the warning.

A couple of case examples

In a 2012 NSW Supreme Court case, Streller v Albury City Council, Mr Streller suffered severe injuries after attempting to do a flip off a rope swing into the Murray River. His case alleged that the Council owed him a duty of care to take reasonable precautions to avoid a risk of injury to him that was foreseeable, and that the Council had breached its duty of care by failing either to remove or properly supervise the rope swing; by failing to ensure that the water in the area was sufficiently deep for safe use of the swing; and by failing to warn Mr Streller that it was dangerous for him to dive into the water or to use the swing.

Mr Streller’s negligence claim was unsuccessful, the court finding that he had engaged in a dangerous recreational activity and that there was an obvious risk of harm associated with the activity.

In Goode v Angland decided in 2017, the NSW Court of Appeal confirmed the CLA’s statutory defence of “obvious risk” of a “dangerous recreational activity” can even apply to professional sports. Mr Goode, a professional jockey, made a personal injury claim against fellow jockey Mr Angland after he was injured during a horse race, accusing Angland of negligence during the race that caused his horse to fall.

Mr Goode’s claim failed when the Court of Appeal upheld the decision of the Supreme Court that found Mr Angland could not be held liable for Goode’s injury because professional horseracing was, by the terms of s 5K of the CLA, a “recreational activity” and therefore Angland could rely on the defence of obvious risk of a dangerous recreational activity.

In conclusion

There can sometimes be grey areas in determining whether a recreational activity is dangerous and poses an obvious risk. Other factors such as a person’s age and experience can also be called on when someone is injured while participating in a recreational activity.

Assessing all these variables requires the services of experienced personal injury lawyers. BPC Lawyers has won multiple industry awards in this specialist area of the law, and can help you work out your options if you’ve been injured during a recreational activity. Contact us today (02) 8280 6900 for a free legal consultation.

Contributory Negligence

What is Contributory Negligence?

In many personal injury claims, the facts are clear-cut.  One person is injured as a result of the fault of another person. If the person who caused the injury was careless or reckless, it may be legally classified as negligence. The person at fault must compensate the injured person for their losses.

But what happens if the person who got hurt also did something that contributed to the accident? This is where the legal concept of contributory negligence comes into play.

A complete or partial defence

The defendant will often raise the issue of contributory negligence and allege that the injured party was partially or largely responsible for the accident.

Let’s consider the following scenarios:

  1. A group of university students is playing Frisbee in a small park, and one of them throws the disc a bit too hard. Another student chases it onto the road without checking for oncoming traffic and is hit by a speeding car. The student, who sustains a broken leg and other injuries, sues the driver.

Here, the driver and student are both negligent. So the only issue for the court to decide is the extent to which the student’s negligence contributed to his injuries. This will determine how much compensation is awarded.

  1. A group of university students is playing Frisbee in a small park near a busy road. One of them throws the disc a bit too hard and his friend chases it onto the road without checking for oncoming traffic. The student who chases the Frisbee is hit by a car and sustains a broken leg and other injuries. However, the driver did not have time to avoid the student.

In these circumstances, the student who chased the Frisbee is entirely at fault. Therefore, the driver has no liability in connection with the accident.

Percentage of fault

The court will determine the extent of the contributory negligence by assessing the percentage liability of each party.  For example, in the first scenario detailed above, a court might determine that the injured student was 25% responsible and driver 75% responsible.  Accordingly, the damages payable would be reduced by 25%.

How compensation is awarded when there is a finding of contributory negligence

Before the introduction of the Law Reform (Miscellaneous Provisions) Act 1965, an injured party that was guilty of contributory negligence would be prevented from obtaining any compensation.

Since that time, the amount of compensation awarded is usually reduced by the same percentage as the plaintiff’s negligence. In other words, if a court assesses a plaintiff’s contributory negligence at 40%, the compensation awarded reflects a 40% reduction; if a court assesses the plaintiff’s contributory negligence at 50%, the compensation awarded is half of what would have otherwise been awarded, and so forth.

However, it is important to note that the specific rules addressing liability for contributory negligence are now detailed in each Australian state or territory’s relevant legislation.

Proving contributory negligence

Contributory negligence is a defence and therefore it is up to the defendant to prove that the plaintiff was partly to blame for the injuries that were suffered.  That is, the defendant must prove that the plaintiff failed to take reasonable precautions that would be exercised by anybody else in the same circumstances.  The defendant must prove that it was more likely than not that the injured party failed to take those precautions.

Criminal conduct and contributory negligence

All of this is well and good, but what happens if someone was injured while they were intoxicated? Or worse yet, what happens if they were the injured driver in a drink driving accident that also injured someone else?

In NSW, the answers to both questions can be found in the Civil Liability Act 2002 (CLA). It allows for a presumption of contributory negligence in any situation where an injured plaintiff was intoxicated. The act stipulates that compensation awarded should automatically reflect a 25% reduction, or a greater percentage determined by the court to be appropriate in the circumstances of the case, such as a drink driving matter.

In general, if someone gets hurt whilst committing a crime, a court can refuse to award any compensation whatsoever. However, if the court deems that too harsh, it also has the discretion to award some compensation.

Kids and contributory negligence

Earlier, we discussed a scenario in which a university student contributed to his own injury by running onto the street without looking. But what would happen if a young child did the same thing with the same outcome?

Children can be guilty of contributory negligence.  The law requires an assessment of what actions a person in the plaintiff’s circumstances, should have taken.  Therefore, the court will not usually find that a young child is guilty of contributory negligence.

If there is a finding of contributory negligence, any reduction of compensation is based on the child’s awareness and understanding of the situation, and how his or her actions contributed to it. In this context, it is important to note that a child of a certain age is expected to have the same awareness and understanding of a situation and his or her actions, as peers in the same age group.

If you have questions or concerns, we are here to help

If you were involved in an accident and have questions or concerns about contributory negligence, getting the right legal advice is critical. Contact us for a consultation and assessment to see if or how contributory negligence may affect your case today on 1800 517 329 or info@bpclaw.com.au

workers compensation sydney

Injured on Your Way to Work Or On Your Way Home?

If you have been injured on your way to work or on your way home, you may be curious as to whether or not you’re entitled to make a WorkCover claim or in fact, a Motor Vehicle Accident claim. It can be more complex than you think.

In this podcast, Accredited Personal Injury Law Specialist, Scott Hall-Johnston discusses what is critical in the consideration of these types of compensation matters.

slip and fall

Slip and Fall? What Compensation Can You Receive?

Public liability claims for compensation are available to a plaintiff after suffering an injury in a public place. While public places generally adopt appropriate safety measures to help minimise the risk of injuries occurring, accidents do happen every day and sometimes the consequences are very real.

Potential compensation claims can arise out of the following examples:

  • A slip and fall in a supermarket, shopping centre, retail centres and on footpaths;
  • accidents that occur at private residences;
  • accidents that occur at schools, in parks or on playgrounds;
  • injuries that occur due to a defective or faulty product;
  • animal attacks:
  • boat accidents; or
  • food poisoning.

Steps to establishing the grounds for negligence

In order to file a successful compensation claim, negligence must be proven. At the simplest level, to prove negligence it must be established that:

  1. A duty of care was owed; and
  2. the duty of care owed was breached; and
  3. the loss you have suffered was the result of this breach.

Negligence can be established if it’s proved that the person or business who owed the duty of care should have foreseen that an injury could possibly occur if the necessary precautions were not taken, or they did not make the public aware of the ‘danger’.

With regards to a slip and fall in a shopping centre, for example, if the shopping centre had failed to place a wet floor sign adjacent to a slippery floor prior to the slip, this is an example of negligence. The shopping centre, therefore, would have breached their duty of care.

What is claimable?

There are various entitlements that are claimable by a plaintiff when negligence is proven. These can include:

  • Medical expenses and rehabilitation treatment, which can include past or future costs for things such as pharmaceutical expenses, rehabilitation treatment and the costs of travelling to and from medical appointments;
  • domestic assistance, such as during care and home assistance. This sort of compensation is only awarded if the court is satisfied that the care is necessary for the injury sustained;
  • compensation for loss of income and earning capacity if the plaintiff is unable to return to work.

In cases specific to work, where a plaintiff suffers from an injury either on the way to work, on the way home from work, or during the course of their work, workers’ compensation benefits may be available. In the scenario where a plaintiff becomes permanently disabled as a result from the injury, they are also able to claim an early release of their superannuation funds, as well as a payout under a Total and Permanent Disability claim (TPD), if their superannuation fund provides this coverage and a medical professional certifies that the plaintiff is unlikely to work again.

Steps for making a personal injury claim

There are a standard set of steps that should be followed if you sustain an injury following an accident in a public place. These include:

  1. Reporting the incident and the injury you have suffered to the appropriate person. This person will usually be the owner of the business where the accident occurred.
  2. Lodging a claim either with the owner of the business or its insurance company.
  3. Seeking legal advice to ensure you are made aware of your legal rights and entitlements.

The next steps

Seeking legal advice is recommended if you find yourself involved in an accident in a public place which causes you to suffer an injury or injuries you believe were caused by negligence on the owner or business’ part. A legal expert can help you assess the amount of compensation potentially available to you, as well as help you through the process of filing a claim.

forklift injury

What to Do If You Are Injured by a Forklift at Work?

The details are scarce, but there are plenty of stories. A quick Internet search reveals that there were two highly-publicised forklift accidents in the Sydney area last year. One of them happened at a Banksmeadow business on November 29. The other happened at a Condell Park warehouse on May 11. Both were fatal, according to media reports.

Sadly, these were not isolated incidents. Between July 2014 and July 2016, for example, more than 1,300 workers were injured in forklift incidents. Three of the workers involved did not survive. Then, in 2017, SafeWork NSW prosecuted and issued fines to four NSW businesses totaling more than $830,000 “for incidents where workers were injured or killed by a forklift”.

In light of that, here’s what you need to know about how to avoid getting hurt in a work-related forklift accident and the actions to take if you are injured.

Know the basics

According to SafeWork NSW, a forklift or industrial lift truck is generally defined as a vehicle used to “used to lift, stack and transfer loads”. As such, they are commonplace in warehouses and other industrial or commercial workplaces throughout New South Wales.

In certain circumstances, forklifts are also dangerous. Serious or fatal workplace accidents involving or attributed to these vehicles usually happen when the victim:

  • Is hit by a forklift because of driver error, working too close to the forklift or inadequate traffic management;
  • is hit by a load a forklift was moving because the driver did not use an  attachment when one was needed, or while helping adjust or steady the load;
  • is not wearing a seat belt in a tip-over. The forklifts are prone to tipping while operators are turning on uneven or sloping ground.

Common injuries include but are not limited to:

  • Superficial and deep bruises;
  • broken bones;
  • crush injuries involving trauma to skin, bones, underlying tissue and internal organs;
  • back and spine injuries;
  • head injuries.

Due to the settings in which forklifts are most often used, construction workers and their counterparts working in manufacturing, food, trades, wholesale, transport, mining and agriculture are most likely to be involved in forklift accidents.

What are my options if I was injured by a forklift at work?

If you are an operator or another worker injured in a forklift accident at work, your options for legal recourse and compensation will depend on your specific situation.

Ordinarily, you will be entitled to claim workers compensation benefits and the accident is a motor accident within the meaning of the Motor Accidents Injuries Act which may mean that you can make a third party claim for damages.

You may be able to pursue a civil claim if you can prove that someone’s carelessness contributed to or caused the accident. However, the best way to ascertain this is to consult a qualified lawyer who can thoroughly assess your circumstances and determine whether you have a viable case.

You may also seek compensation if you can prove that your employer’s failure to maintain “suitable conditions” contributed to or caused the forklift accident. This is because all New South Wales employers are legally obligated to:

  • make safe work systems available;
  • take care of all relevant equipment/machinery and make sure it’s working properly;
  • provide a safe working environment;
  • ensure that all employees have sufficient training and supervision;
  • provide and maintain adequate facilities.

How compensation is awarded

Compensation in forklift accident cases is generally awarded based on several factors. These include but are not limited to the severity of the injury, your age, your overall health, and your occupation.

As in other types of personal injury cases, you may seek compensation for costs incurred due to hospitalisation and other treatment; medical expenses; rehabilitation costs, such as those incurred for physiotherapy and similar treatment; home assistance (if any); loss of past and future income due to the inability to work; and loss of superannuation (if applicable). You may also request compensation for “general damages” such as past and future pain and suffering.

A case in point

In one case, a 65-year-old man injured by a forklift at his Sydney workplace received more than $600,000 in compensation.

The victim reportedly suffered “multiple internal injuries requiring surgery as well as soft tissues to his neck and back” after a co-worker driving a forklift ran into him.

As a result the man had to take a considerable amount of time off work before he could return to light duty. And in spite of his age, he had reportedly intended to keep working  for at least five more years, or as long as he could do so. Unfortunately, however, he never recovered fully enough to do that.

Upon evaluation of the situation, the man’s lawyers determined he was eligible not only to make a Workers’ Compensation claim, but also to pursue a motor vehicle accident claim. This goes to show the importance of getting the proper legal advice from someone qualified to assess your situation as soon as possible. Don’t leave anything to chance. Contact our Sydney Compensation Lawyers for an assessment of your forklift injury case today.

Time Limits For Workers Compensation Claims

Time Limits for Workers’ Compensation Claims

Like most areas of law, workers’ compensation involves serious time restrictions. These are made all the more serious by the potentially devastating long-term health effects that can go hand-in-hand with such a claim. The most pressing questions you will likely have are: “How much is this going to cost and where am I going to get the money to pay for it?!” When you have suffered an injury, the last thing on your mind will be meeting deadlines but unfortunately, in order to get the compensation that you are owed, paying close attention to time limits is a must.

When Can I Make a Workers’ Compensation Claim?

Four conditions must be met in order for an injured party to file a workers’ compensation claim. First, and most obvious, the worker must be an employee. Second, the employee in question must have suffered an injury or medical condition that a medical practitioner has diagnosed. The injury or medical condition must have been sustained in the course of employment and where the employment itself substantially caused the injury or condition. Finally, the employee has suffered or is suffering an economic loss due to the injury.

Notifying the Appropriate Parties

When the injury occurs, the injured employee needs to notify their employer of the incident and resulting injury or condition. The employer must be notified, in writing, of the injured worker’s name and address, what the injury is and how it occurred, and the date that the injury occurred.

Time Limits

In general, all workers’ compensation claims must be made within six months of the date that the injury occurred. However, this limit can be extended for up to three years if certain circumstances are met.

Exceptions

In circumstances where reasonable cause can be shown, the time limit can be extended from six months to three years. Reasonable cause may be shown in cases where there is an absence from the state, there has been a mistake, or in cases where the employee discovers their injury after the fact. In the event the injury or condition is not known until much later (for instance, whiplash, cancer, vision, or hearing problems), the time limit for filing a claim starts not at the time of the injury but at the time that the employee becomes aware of the injury and what caused it.

What Might Cause Someone to Miss the Deadline?

Aside from the obvious answers of mistake, confusion, or simple forgetfulness (all of which can be remedied by the involvement of a professionally trained workers’ compensation attorney) there are a few other reasons the claim might be made late.

Belief that the Injury Will Heal

As mentioned before, some injuries may take time to manifest in serious symptoms. Sometimes, what seems like a minor injury ends up having more serious consequences. In these scenarios, an injured employee might try and wait to see if the injury or condition goes away on its own. However, this can not only prevent them from recovering the appropriate amount of compensation, but might cause the injury to get worse in the meantime.

Fear of Retribution

Another reason that an injured employee might wait to report (or not report at all) is fear that they will experience discrimination from their employer. It’s a competitive world and no one wants to be seen as ‘troublesome’. However, there are laws in place to protect employees from being dismissed or punished for filing a workers’ compensation claim.qq

To meet important deadlines with any workers’ compensation claim, it is vital to act as soon as possible and get in touch with an experienced workers’ compensation lawyer who can help you stay on track with your claim.

injured at work

Injured at Work? Don’t Forget About Your Superannuation Fund

Most Australians know that they can file a workers compensation claim if they get hurt on the job. But did you know that may not be your only option? You may also be able to make a claim through your superannuation account. This is because superannuation programmes generally offer various types of insurance coverage. This article provides a basic overview to familiarise you with this issue.

In general, insurance provided through your superannuation will provide coverage for any illness or accident resulting in an injury that prevents you from working.  However, one of the most fundamental and crucial issues to understand in this context is that there may be different rules associated with the insurance provided through different superannuation programmes.

Some funds will only offer insurance to active members – those who are making contributions – while others will continue to provide cover once you’ve stopped contributing.  In some cases you won’t be eligible for the coverage unless you ‘opt-in’. If your superannuation fund offers ‘default cover’ for its members, however, you will automatically qualify for the coverage. Many policies also allow you to make a claim even if you are no longer working and are not currently insured – but only if you were covered at the time you were hurt.

Another important point to bear in mind is that just because you have coverage, it doesn’t mean your claim will be successful. It is not unheard of for a fund to deny a claim without a valid reason, and so it is essential that you consult an experienced lawyer prior to pursuing this option.

The Types of Claims Available

A lawyer who is well versed in this area can do a comprehensive review of your situation and discuss what you must do in order to prove total and permanent disability (TPD).  A TPD claim is one in which you must demonstrate that you can no longer do the type of work you were doing when you were hurt, or any type of work for which you are qualified based on your education, training or experience.

The reason this is so critical is that TDP, or ‘disability cover’, is the type of insurance coverage most often offered as ‘default cover’ by superannuation funds. Furthermore, successful TPD claims typically result in single (lump sum) payments rather than payments made over time. How much you will get depends on several factors including the extent of your injury and your policy terms.

Depending on your unique circumstances and the provisions in your superannuation insurance policy, you may also be able to make claims for temporary disability or income insurance.  If you make a successful claim for the former, you’ll most likely get monthly payments until you can resume working. A successful income insurance claim usually results in compensation for up to 80 percent of your average income, with payments being made for a maximum of two years. You should also be aware that you can usually make these types of claims through your superannuation fund even if you’re already receiving reimbursement through workers compensation, and that you can make your superannuation insurance and workers compensation claims simultaneously.

More Than One Super Fund?

Another question that often arises in this context is what you should do if you have more than one superannuation account. If you follow conventional wisdom, you may be tempted to combine all of your accounts so you don’t have to pay any fees or premiums on any funds not in active use. That can be detrimental for insurance purposes, however, because different superannuation insurance programmes have different rules. If you combine all of your accounts without getting the proper advice, you may end up with insurance that doesn’t meet your needs.

In summary, if you have a superannuation account, you also have options if you are hurt at work. In addition to pursuing a claim through workers compensation, you may also be able to make a claim through the insurance associated with your super fund. Because different insurance plans offered through superannuation funds have different rules, you may have to opt-in to ensure that you have cover. In most cases, you will probably have ‘default cover’ as an active participant in a super fund but in order to make a successful claim with this type of insurance, you must usually prove that you have TPD. Finally, you should always consult a qualified professional about the insurance ramifications before you consolidate multiple superannuation accounts.

If you have been hurt at work and you want to know more about your options for seeking compensation through your super fund, it is important to get proper legal advice as soon as possible. Contact our Compensation Lawyers Sydney for a free case evaluation now.

medical assessments for personal injury

What You Need to Know About Your Personal Injury Medical Assessments

In this podcast, Accredited Personal Injury Law Specialist (NSW) and Multi-Award Winning Lawyer, Scott Hall-Johnston discusses the role of medical assessments during your personal injury claim and what to do to best prepare for them.

Scott:

Good morning, Dan. There are two types of examinations that will usually occur. One is an examination that might be arranged by your lawyer so that there can be objective evidence about the nature of the injuries you’ve suffered, and to give some support for the claim for damages or compensation. The defendant also is typically allowed to have you examined by an expert of each choice, and it will want to have you looked at by its own doctor so that it can get an independent view of the nature of your injuries.

 

Dan:

And, Scott, what happens with that body of medical evidence? Where does it all go? You know, you’ve got one doctor that may say “A” and another that says “B”. What happens with it?

 

Scott:

Well, the theory is, of course, that all experts will come up with the same opinion, but experience tells us that will vary and frequently be the case, and typically doctors verge in their opinions. The resolution of that issue is typically by the court, so usually, the Judge will be asked to decide which opinion is preferred.

 

Dan:

And in the case that a matter doesn’t go to court, because a lot of these types of cases don’t actually end up in a court, is there sort of negotiation between the parties at some point?

 

Scott:

Of course there is, and each party will rely upon its own opinion and suggest to the other party that that opinion should be preferred. So the medical report is used as a tool in the negotiation when you’re able to look at settling your claim.

 

Dan:

And Scott, what about preparation for these medical assessments? Does a person need to prepare differently for the type of medical assessment they’re undergoing?

 

Scott:

Look, if a person’s not used to being examined, then they should certainly be thinking about what’s going to happen before the examination takes place, irrespective of who the examination has been arranged by. Typically, the doctors don’t like spending a lot of time taking histories, and usually, the experience is that the doctor doesn’t have sufficient opportunity or is unwilling to listen to all the facts.

 

It will help a process greatly if the patient or client can be very ready with the correct answers so the doctor knows what they need to provide the report.

 

Dan:

Just in terms of the frequency of these medical assessments, how often do they occur, and are they different for different types of injuries or personal injury matters?

 

Scott:

Yeah, of course they will be. There are different horses for different courses. But what your lawyer will usually require is some independent medical evidence that backs up the treating doctor’s reports in each field or speciality. Typically, your lawyer won’t arrange an appointment until your case is ready to be settled or to go to court, otherwise the evidence may need to be obtained again.

 

The defendant is entitled to have an examination at reasonable notice with the specialist of its choice. That is to say, a defendant can’t doctor-shop and send you to more than one specialist in each field of expertise.

 

Dan:

It can be an overwhelming sort of experience for clients. Is preparation and having notes with you around the facts, is that the best way to prepare?

 

Scott:

I don’t think notes help. The problem with notes is the doctor will sometimes ask for it, and any material that’s available can be subsequently brought before the court or the tribunal. But as you say, Dan, it is a good idea to prepare and have in mind what’s happened in the accident and the effects that it’s had upon the person, so that they can give a clear history and be ready with the facts to be able to tell the doctor exactly what’s occurred.

 

Dan:

Scott, thanks for joining me.

 

Scott:

That’s a pleasure. Have a good day.

 

 

No Win No Fee by BPC Lawyers

What Does “No-Win, No-Fee” Mean?

The obligation of a client to pay costs and disbursements to a lawyer is required to be agreed upon and set out in a Costs Agreement.

The Costs Agreement will deal with issues such as the hourly charge rate of the lawyers, when payment is to be made, the estimate of the total fees that are likely to be incurred and the types of disbursements that will also be charged.

A “no-win, no-fee” agreement relieves a client from paying legal fees unless and claim is successfully concluded. That is to say if the case is lost or does not end in a successful outcome, then the client is not required to pay the solicitor’s costs.

A successful outcome will be defined in the Costs Agreement, but usually refers to a settlement involving a financial benefit to the client or a judgment in favour of the client.

“No-win, no-fee” agreements are looked at favourably by many clients because not only does the agreement have the effect of reducing the client’s liability to pay legal costs, but will also instil in the client a confidence that the solicitor believes that the claim is likely to succeed. After all, why would a solicitor be wasting time and money in pursuing litigation if the claim was not likely to be won?

Party/Party Legal Costs

Ordinarily, the court will order that an unsuccessful litigant pay the successful litigant’s costs of a court case. Those costs are usually required to be paid on a party/party basis.

As a rule of thumb, party/party costs cover about two-thirds of the total amount of costs that have been incurred.

It is important to understand that a “no-win, no-fee” agreement does not operate to remove the client’s liability to pay an opponent’s legal costs if the claim is lost.

As with all Costs Agreements, it is important that you properly understand the “no-win, no-fee” Costs Agreement before the lawyer starts work. Whilst “no-win, no-fee” Costs Agreements are significantly more attractive than most Costs Agreements, there can be issues that you will need to discuss with your lawyer.

 

When is an accident partially your fault? Contact BPC Lawyers.

When is an accident partially your fault?

Contributory Negligence

Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.  

The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered. The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said: 

An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”  

Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said: 

“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”  

As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.  

Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002. The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.  

Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed. 

Scott Hall-Johnston 

BPC

Can your Personal Injury Claim continue after you die?

Can your Personal Injury Claim continue after you die?

When a plaintiff dies before their claim is finished, can the estate still recover damages and, if so, what damages are available?

Since the Law Reform (Miscellaneous Provisions) Act 1944, a damages claim can be bought on behalf of the estate by the personal legal representatives to recover damages that the deceased would have received.

Only economic loss damages are recoverable in the estate action. That is:

  1. Medical and hospital expenses incurred before the death;
  2. Damages for gratuitous care services provided prior to the death that were both received and provided by the deceased to other people;
  3. The loss of earning capacity prior to the date of death; and
  4. Funeral expenses.

The estate cannot claim damages for lost earning capacity past the date of his or her death (that is, during the “lost years”) and exemplary or punitive damages are not available.

General damages, which is compensation for pain and suffering and otherwise known as ‘non-economic loss damages’, however survive to the estate in the event that the death was not caused by a negligent act.  If the death was caused by the negligence of the Defendant, then no general damages may be awarded.

The injured person is usually a very important witness in their own claim.  Therefore, it is not only the availability of the remedy that is important but you will need to carefully consider whether the case can be proved without that evidence being available.

Scott Hall-Johnston

BPC Lawyers

Satisfactory Explanation For Late Motor Accident Compensation Claim

Satisfactory Explanation For Late Motor Accident Compensation Claim

Late making of claims under the Motor Accidents Compensation Act (1999):

Requirement for a “Satisfactory” explanation

 You should refer to our earlier article in relation to the making of late motor accident claims. This paper adds to the topic in relation to the need for an explanation not only to be full, but also to be satisfactory.

The High Court considered the meaning of satisfactory delay in Russo v Aiello [2003] 215 CLR. At 463, Gleeson CJ said:

“What would justify a reasonable person in a position of the claimant ‘experiencing’ a delay? It is impossible to give an exhaustive list of possible justifications. Delay in the onset of symptoms is one example; and as an example of some relevance to this case. It is to be noted that what the Act requires is justification for the delay; not demonstration of the delay caused no harm….The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it.”

In Walker v Howard [2009] NSWCA 408 the Court of Appeal (sitting as a bench of five) considered the case of the claimant who was suffering serious brain damage. They suggested the case gives useful guidance as to the attributes the claimant that ought be considered when applying the objective tests under s.66(2) of the Act, that is the “reasonable person in the position of the claimant” test.

Firstly, the Court said that the position of a claimant with a disability includes that disability:

“….that placement of a fictional person in that position could be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable in the claimant’s position….The phrase ‘position of the claimant’ is not limited in terms of the personal or physical characteristics of the claimant. It connotes aspects of a place and circumstances relevant to the enquiry….. It can be acceptable that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the ‘position of the claimant’….. to the extent that the test requires the subjection of the reasonable person in the position of the claimant to their circumstances in the full explanation and a “justification” of experiencing them, such a constraint demands normative evaluation”.  

Young, JA noted that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant includes the age, sex and capacity of the claimant as well as her or her cultural background.

In Figgliuzzi v Yonan [2005] NSWCA 290 the Court considered the earlier but similar incantation of the satisfactory explanation provisions in the Motor Accidents Compensation Act 1988 and held that that the explanation for the failure to lodge the claim within the time prescribed was not satisfactory because she had failed to obtain legal advice in a timely fashion.  McColl, JA makes clear in Figgliuzzi at [124] FF, the Act is one of many statutory schemes whereby the legislature has fixed definite time limits for the prosecution of civil claims because, “the public interest requires that disputes be settled as quickly as possible.” (CF Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 per McHugh, J). Unlike other limitation provisions, however, those fixed by MA are not absolute. The various authorities Her Honour collects in that judgment clearly “….demonstrate that a legislative concern with a prompt notification and timeous resolution of claims for damages arising out of motor vehicle accidents” and “what would constitute justifiable delays to be considered in the light of these legislative purposes”. The majority held that determining whether a claimant has provided a satisfactory explanation involves a ‘normative judgment’. Arising from the accident, Ms Yonan had complimentary rights under the workers compensation and motor accident legislative regimes. Ms Yonan who was employed by the Legal Aid Commission as a clerk offered as her explanation a belief that having made a claim for workers compensation she was not then able to claim damages under the motor accident regime.

At [95] Tobias JA, said:

Accordingly, the critical question concerns behaviour of a reasonable person in a position of the [claimant] who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because the accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act. Would that reasonable person in the respondent’s position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practise or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?”

Santow JA, did not accept the view of the majority that it was unreasonable for her not to have sought legal advice and to have relied upon her ‘bush’ legal analysis. In dissenting, Santo JA said at [24]:

“For a person to have a civil claim under two regimes, namely workers compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive. Therefore she did not feel the need to verify her belief when that belief was ex-facie reasonable does not to my mind render that belief unreasonable. A reasonable person in [the claimant’s] circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief intrinsically irrational, that her own employer by its actions had implicitly confirmed. Her employer did so by requiring her to complete a workers compensation claim form. The Commission neither then, nor subsequently, informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work. While [the claimant’s] ignorance of the law did not of itself excuse her from complying with the statutory time period,…..nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”. I would therefore have reached the same conclusion as the primary Judge in this matter, applying the reasonable person test.”

More recently, Colefax DCJ in the unreported decision of Annetts v Bone & Anor, 04 December 2014 made reference to the following normative considerations:

(a)      The limited formal education of the plaintiff;

(b)      The knowledge or belief of the plaintiff that his condition was caused by the collision;

(c)      The fact that the plaintiff took little time off work because of the injury for the first ten years after the accident;

(d)      That the plaintiff was not out of pocket in relation to expenses associated with treatment of his injury because of the payments of workers compensation;

(e)      The plaintiff had a broad knowledge of a separate method of compensation for injuries sustained in the motor vehicle accident other than workers compensation;

(f)      The separate methods of compensation not only had time limits but also thresholds, thresholds which did not appear to have been exceeded until ten years after the accident;

(g)      The separate method of compensation provided that if proceedings were commenced and lost an adverse costs order would be made and could be enforced against the plaintiff;

(h)      Finally, a serious deterioration in the plaintiff’s condition ten years after the accident.

In Gedel v Tihic [2012] NSWDC 87, Leavy DCJ, considered the explanation offered by a plaintiff who upon medical advice did not initially believe his injuries to be serious.  His Honour said:

A reasonable person in the circumstances of the plaintiff would have more likely put up with a measure of discomfort experienced by the plaintiff…. and would most likely to have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve.”

And in relation to the delay following the plaintiff’s initial consultation with his solicitors:

In that regard, he was also required to come to grips with flow-on effects of these matters concerning his employment and his financial obligations generally as well as very real and worrying concerns over his mortgage liabilities and commitments… It is therefore not surprising and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result became to a degree un-focused and disorganised concerning his personal affairs.”

The reasonable person test involves a degree of objective analysis which may vary according to assumptions made about the person. Further, the position of the claimant is not limited to merely personal or physical characteristics, but has been said to involve both injuries suffered in the accident (including any disabilities suffered) and the circumstances relevant to the delay. The test in Walker is an objective test that is whether a reasonable person would have been justified in experiencing the delay and involves a normative evaluation of the claimant’s behaviour in this regard. What is required is justification of the delay, not demonstration that the delay caused no harm or prejudice to the insurer.

In Brierley v Ellis [2014] NSWCA 230 (17 July 2014), the Court of Appeal held that where there was no objection made by the insurer to evidence being produced by way of statutory declaration, and no contradictory evidence is tendered, the evidence should be given no less weight than if the information contained had been provided by way of oral evidence.

Scott Hall-Johnston

BPC

Late making of claims under the Motor Accident Compensation Act (1999)

Late making of claims under the Motor Accident Compensation Act (1999)

The Motor Accidents Compensation Act 1999 (“MACA”) requires the making of a claim for personal injury damages arising from a motor vehicle accident within six months of the date of that accident (s.72(1)).

The claim is to be lodged with the third party insurer where one exists or otherwise against the person against whom the claim is made (s.72) (2).

The claim must be in the form approved by the Motor Accidents Authority (s.74).

Late making of claims

This article deals with the requirement that an explanation be “full”.

There are two provisions in MACA which are necessary to consider.  These are s.73(1) and s.66(2).

S.73(1) provides:

(1)  “A claim may be made more than six months after the relevant date for the claim under s.72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim.  The explanation is to be provided in the first instance to the insurer”;

S.66(2) provides the definition of a full and satisfactory explanation:

In this chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or to have been justified in experiencing the same delay.

Full explanation

In Walker v Howard [2009] NSWCA 408, the Court held that the requirement for an explanation to be full does not call for perfection. Nor does the section call for “prolix” or “burdensome recounting of every moment that has elapsed”. Diaz v Truong [2002] NSWCA 265.

In Ellis v Reko Pty Ltd [2010] NSWCA, the Court of Appeal stated:

            “The word ‘full’ is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the Court should be asked to draw inferences for correspondence etc, at least where that is not obvious.”

And in Dias v Trong [2002] CA 265, Hodgson, JA said that what was required to satisfy the requirement for a ‘full account’ was:

            “A full account of the acts and omissions of the claimant and of persons acting on behalf of the claimant, insofar as those acts and omissions are relevant to the explanation for the delay.”

Mason, P said in Bulla v Black [2005] NSWCA 45:

          “The complete explanation is, of course, an explanation of what actually happened, warts and all”.

In Russo v Aiello [2003] 215 CLR 463 Gleeson, CJ said in relation to the concept of the explanation being full:

“A full account of the conduct, including the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation. The word “full” takes its meaning from the context. It refers to the conduct bearing upon the delay and the state of mind of the claimant.”

We will shortly prepare a further article dealing with the requirement that an explanation be “satisfactory”.

Scott Hall-Johnston

BPC Lawyers

Armed Hold-Ups Compensation Claims

Armed Hold-Ups

Beilby Poulden Costello have had a number of successful claims recently acting on behalf of the victims of robberies. One of those cases involved a lady who was the subject of an armed hold-up whilst working for a fast food restaurant and another was employed to look after the takings from the gaming area at a hotel. In each case we have been successful in demonstrating that the appropriate measures were not taken to ensure the safety of our clients, as a result of which they have suffered loss and injury.

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Cross-Examination: Making Life Easier in the Witness Box

Cross-Examination: Making Life Easier in the Witness Box

I hope for your sake that you never have to be cross-examined; it is never an easy or pleasant experience.

Questions are often confusing and repetitive and it is difficult in the moment to determine exactly the right words to use.  I have been required to give evidence on several occasions and have never enjoyed the experience.

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

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

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

If you would like to discuss the rules of giving evidence, you can contact our Scott Hall-Johnston, or one of the other lawyers at BPC, to discuss the other rules about giving evidence.
About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Worker Receives Compensation Prior to Stabilisation of All Injuries

Worker Receives Compensation Prior to Stabilisation of All Injuries

Scott Hall-Johnston, a partner at Beilby Poulden Costello, recently represented a woman who suffered an injury in the course of her work.

The Facts:

The plaintiff, in the course of her work, fell and suffered injury to both knees and her spine. A workers compensations claim was lodged and she was deemed to have permanent injury to her right knee and spine. The injury to her left knee, although considerable, had not stabilised and could not be assessed. The Workers Compensation Commission determined that because the injury to the left knee had not stabilised, it would be inappropriate to pay compensation until such time as it did.

The Judgment:

The NSW Court of Appeal found that there is no reason why a worker cannot be paid compensation in respect of injuries that have stabilised, and at a later time, be paid compensation for injuries which have not yet stabilised.

Effect of the Decision:

The decision has ensured that workers who suffer multiple injuries in the course of their work are entitled to claim compensation prior to the stabilisation of all injuries. This decision guarantees that workers don’t suffer an unfair delay in gaining compensation as a result of injuries suffered at work.

If you would like to discuss your rights, please contact one of the solicitors at Beilby Poulden Costello on 8280 6900.
Case Source: Worker Receives Compensation Prior to Stabilisation of All Injuries

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

Understanding Medico-Legal Examinations

As part of your personal injury claim you will be asked to go to a medical examination probably both on behalf of your solicitor and on behalf of the insurance company. The following will help you understand the examination and your part in it.

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