In this video, Award-Winning Lawyer Scott Hall-Johnson answers the commonly asked questions relating to compensation and cycling accidents. Most importantly, strict time limits apply in these matters and seeking advice promptly is recommended.
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.
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| 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.
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| 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?
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| 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.
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| 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?
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| 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.
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| 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?
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| 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.
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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.
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| 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?
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| 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.
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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.
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| 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?
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| 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.
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| Dan: | Scott, thanks for joining me.
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| Scott: | That’s a pleasure. Have a good day.
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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.
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
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:
- Medical and hospital expenses incurred before the death;
- Damages for gratuitous care services provided prior to the death that were both received and provided by the deceased to other people;
- The loss of earning capacity prior to the date of death; and
- 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, otherwise known as non-economic loss damages, also do not survive to the estate. There is however an exception in respect of dust diseases. In that case, general damages including damages for loss of expectation of life can be awarded but only if the proceedings for the damages have been filed during the lifetime of the deceased.
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
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
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
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.
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.
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.
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.