Category: Blog

Lodging a Worker’s Compensation Claim form – when and why? 

Introduction  

A worker who is injured at work is entitled to compensation benefits including (subject to restrictions) payment of medical expenses, compensation for wage loss and compensation for permanent impairment suffered.

Need help with filling Work Injury Claim Form? Contact our workers compensation lawyer.

Injuries suffered in the course of employment can often need little by way of time off work or treatment. However, even the most innocuous incident can lead to considerable financial and medically disastrous results. They can, at first, seem not to have caused much by way of damage.

However, it can take considerable time for symptoms to materialise or an employee may fear for their job if they make a claim.  

When? 

It’s imperative that workers lodge incident reports and workers compensation claim forms for all incidents to which they have suffered injury.  

These forms are available from your employer and must be provided upon request. 

It is also advisable to seek medical attention by your local medical physician so that your medical condition is documented and you obtain an opinion as to the severity of your condition. 

This claim form must be as comprehensive in detail as possible, including all injuries suffered, even when the symptoms seem mild at the time. 

Why? 

The Workers Compensation legislation sets time limits for the lodgement of claims. Any delay could mean that you lose the right to compensation.  

You must inform your employer that you have suffered an injury as soon as possible: Section 254 Workplace Injury Management and Workers Compensation Act 1998 (NSW) 

If you did not inform your employer and wish to make a claim, you must show special circumstances, including: 

a/ That the employer hasn’t been placed into a position of disadvantage in responding to or dealing with your claim, 

b/ You did not tell your employer due to your “ignorance, mistake, absence from the State or other reasonable cause”, 

c/ Your employer knew about your injury anyway, or 

d/ Your employer reported the circumstances to the nominal insurer. 

You must also then lodge your claim for compensation within 6 months of the injury: Section 261 Workplace Injury Management and Workers Compensation Act 1998 (NSW).   

If you lodge a claim after the six month period, you must show special circumstances, including: 

a/ You didn’t lodge you claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND you made the claim within 3 years of your injury; 

b/ You didn’t lodge a claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND your work incident has caused serious and permanent disablement;  

c/ The insurer accepts your claim and fails to mention this issue, or  

d/ Your injury was only realised after the incident and you have complied with one of the conditions listed above. 

Conclusion 

We strongly advise you to immediately lodge a claim for workers compensation and notify your employer of any injury. This will ensure your rights to compensation aren’t taken away from you, especially if there is a delayed or late onset of a serious condition.  

Indeed, I have come across many situations where employers have attempted to convince workers not to make workers compensation claims, instead agreeing to meet their time off work and treatment expenses themselves.  

Whilst workers may wish to keep their employer happy for reasons of job security, it must always be borne in mind that such agreements with your employer are far from secured long term.  

Given the protection from termination for 6 months from your claim (Section 248 Workers Compensation Act 1987) and the common uncertainty as to how long your condition may take to recover, the prudent course must be to lodge a claim for workers compensation.  

Should your condition require surgery, or seems to be causing you serious and permanent financial and medical hardship, you should contact our office in order to seek advice as to what other rights you might have to compensation. 

 

Timothy Driscoll LLM (Sydney) 

Associate of BPC Lawyers 

4 October 2017 

ASSESSMENT OF DAMAGES IN NERVOUS SHOCK CLAIMS

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

Need help with product liability claims? Contact BPC Lawyers for legal help.

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 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 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

 

Can I be fired whilst on workers compensation?

Apart from the payment of workers compensation, an employer has an obligation to rehabilitate the injured worker, including, where able, to facilitate the worker into another position; whether that be within or out of the organisation.

Fired while on workers compensation? Contact BPC Lawyers for legal advice.

 However, as is becoming more apparent, employers are finding it easier to simply get workers off their books than having to deal with their rigorous obligations for the payment of compensation, rehabilitation and redeployment of workers.

So if you’re a worker who has suffered an injury at work and your employment has been terminated, what can you do? What rights are you afforded? 

An injured worker is afforded some protection from termination under Part 8 of the Workers Compensation Act 1987 (NSW). 

The extent of protection will however depend upon: 

  1. Whether you’re fit to perform your pre-injury job, and/or
  2. The reasons for why your employer terminated your employment.

Unfit to work in pre-injury employment

If you cannot do the inherent requirements of your job, your employer can terminate you.

However, it is a criminal offence for your employer to terminate your employment because you’re unable to perform such requirements because of a work injury IF they terminate you within 6 months from when you first become unfit for your pre-injury job.

Whilst this prohibition is a criminal provision, the conduct of your employer in terminating you because you make a claim for workers compensation will create a civil liability upon your employer, to which you can sue for modest compensation under the protections found in the Fair Work Act (Cwth).

This protection is only available to you if you comply with any reasonable request the employer makes to send you for a medical examination on the matter.

Fit to work in pre-injury employment

If an employer terminates your employment because you’re unfit for work (so they allege) due to a work injury which you’re fit to perform, then another remedy might be available to you.

If, after termination, you send your employer a medical certificate certifying you’re able to do you pre-injury job or another job up to the same vantage point as your old job, then the employer must reinstate you into that position which you have capacity.

Interestingly, if your employer wishes to allege that you’re not entitled to reinstatement as your injury is not work related, then they must overcome a presumption that says otherwise.  That is, it is up to them to rebut a presumption that your termination was because of some non-work related condition.

Conclusion

The general rule has always been that an employer can terminate your employment for any reason at any time.

That still remains the general proposition at law.

But depending on the reasons or reasonableness for their decision might determine if and to what extent you can seek a Court or Tribunal to correct the effect of this decision.

For workers injured in the course of their employment, the Workers Compensation Legislation works (or at least is designed to work) hand in hand with the Fair Work Act 2009 (Cwth) to provide assistance above that of the ordinary worker who has had their employment terminated. However, as is seen in this article, the Court/Tribunals can have great difficulty in providing a fruitful remedy to an employer’s termination notice.

The question is what avenue best achieves the best outcome for the worker?

This is a question of fact and degree of the particular case, to which will need assessment by a competent legal advisor within the area.

If you have been seriously injured at work and are worried about the future in the workforce, then you should contact our office right away and speak to one of our accredited specialists.

Timothy Driscoll

Associate

14 August 2017

 

 

WHEN AN ACCIDENT IS 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.  

Injured in a Bicycle Accident? Contact BPC Lawyers for legal help.

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 

Beilby Poulden Costello 

PERSONAL INJURY UPDATE

RECENT COMPENSATION CASE

There was a recent decision in the New South Wales Court of Appeal involving an application by an injured claimant to set out aside a decision of Supreme Court Judge, Mr Justice Fagan, to refuse the injured person’s application to seek judicial review of a decision by the Proper Officer of the Medical Assessment Service. The case was Dominice –v- Allianz Australia Insurance Limited [2017] NSWCA 171.

Compensation Court

The injured claimant suffered injuries in a motor vehicle accident in July 2013. In order to obtain compensation for non-economic-loss (bodily injury) it is necessary to demonstrate a degree of permanent impairment greater than 10%. The claimant was initially assessed as having a whole person impairment of 18%. The CTP insurer, Allianz, sought a review of that determination.

The review application was determined by The Proper Officer of the Medical Assessment Service of the Motor Accidents Authority. The Proper Officer is required to refer the application to a review panel of medical assessors but only if the Proper Officer “satisfied there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.”

The Proper Officer decided to refer the application by the CTP insurer to a review panel. The injured claimant instructed her lawyers to challenge that referral decision by way judicial review pursuant to Section 69 of the Supreme Court Act 1970 [NSW].

The claimant’s application was dismissed by His Honour, Mr Justice Fagan in the Supreme Court on 31 August 2016.

Justice Basten stated at paragraph 4 “no error has been identified in the judgment of the primary judge, Fagan J. If the primary judge erred in any respect, it was according too much credence to the complaints of the Appellant. In fact, the appellant’s case was based on four inter-related assumptions which were inadequately explored.”

Furthermore, it is important to note what Justice Basten also stated in his judgment:-

“Where the Proper Officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss.

 However, when the error is said to have resulted in the failure of the Proper Officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least were the bona fides of the Proper Officer was not in question, would have strong reasons for rejecting the application on discretionary grounds.”

This case is important for legal practitioners to consider when challenging a Proper Officer’s decision to refer an assessment to a review panel. In view of what has been stated above by Mr Justice Basten, a solicitor acting for a claimant in such circumstances would need very good reasons to bring application for judicial review to set aside the decision of the Proper Officer to send the matter for review.

It would be more prudent to allow the matter to proceed to the review panel and depending on the outcome of their decision, decide whether or not an application for judicial review is warranted.

At Beilby Poulden Costello, we are able to assist our clients in regard to any application for judicial review and will ensure any application to the Supreme Court has good prospects for success.

 

 

 

 

 

CAN YOUR PERSONAL INJURY CLAIM CONTINUE IF YOU DIE?

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

Motor Accident Compensation Lawyers

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, 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

Beilby Poulden Costello

What Goes On At BPC

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

Medical Compensation Claim

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

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

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

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

Courtenay Poulden

24 March 2017

WHIPLASH ASSOCIATED DISORDERS

“WHIPLASH ASSOCIATED DISORDERS – (WAD)”

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

Auto Compensation claim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D R Ford

10 March 2017

Nervous Shock Claims

WORK PLACE INCIDENT AT BARANGAROO – NERVOUS SHOCK CLAIMS

BPC Lawyers have represented vast numbers of plaintiffs in successful nervous shock claims pursuant to the NSW Civil Liability Act 2002 since its inception.

Work Place Incident at Barangaroo – Nervous Shock Claims

Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have genuine psychiatric illness arising from a circumstance 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.

If a genuine psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.

The Civil Liability Act defines a “close member of the family” of a victim to include a parent of the victim or other persons with parental responsibility for the victim, or the spousal partner of the victim, or a child or step-child of the victim or any other person for whom the victim who has parental responsibility. The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters.

A “spouse or partner” is defined as a husband or wife or a defacto partner.

The Diagnostic Statistic of Psychiatric Injuries is used by qualified psychiatrists to report to the Courts on behalf of parties to litigation in relation to the effect that a particular event has had upon any witness to an event causing psychiatric injury.

Strict time limits apply in relation to bringing a claim for damages for personal injury, including psychiatric injury, pursuant to the Civil Liability Act. A three year limitation period is imposed in relation to commencement of court proceedings, which runs from the date of the relevant event.

It is expected that in relation to the unfortunate death of an innocent worker at Barangaroo in March 2017, there will be a coronial inquest that will shed light upon the circumstances that led to the death.

The findings of a coroner should not be pre-empted.

Any persons who have witnessed, and been psychologically affected by the unfortunate incident at Barangaroo are advised to consult medical practitioners for appropriate treatment.

Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. The court process usually endures for beyond 18 months if matters are incapable of settlement.

The Civil Liability Act is designed to provide appropriate compensation to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.

The Courts, quite rightly, do not readily entertain cases that do not involve genuine psychiatric injury, as was intended by the legislators when the Civil Liability Act NSW 2002 was enacted.

Beilby Poulden Costello has acted for injured plaintiffs for in excess of 35 years.

If you or one of your loved ones is affected by psychiatric injury which remains unresolved despite medical treatment, please contact one of our accredited specialists in personal injury law in NSW for a free initial consultation.

Beilby Poulden Costello act in nervous shock claims on a “no win/no fee” basis.

In cases involving serious injury or death, there will usually be a coronial inquest following police investigations and WorkCover/WorkSafe investigations.

Beilby Poulden Costello Lawyers have assisted family members to protect their compensation rights by appearing in numerous coronial inquests, including those involving construction site accidents and deaths.

Beilby Poulden Costello take very seriously their duty to only bring cases on behalf of persons in circumstances where there is at the very least, a reasonable prospect of success, which is consistent with our obligations pursuant to the Legal Profession Uniform Law.

CIVIL CLAIMS 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 Lawyerswhich 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.

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