Law Articles

Crime Claims Left Mired in Bureaucracy

Crime Claims Left Mired in Bureaucracy

Victims of crime have been frustrated by a compensation regime that is bureaucratic, costly and inefficient, resulting in a backlog of more than 20,000 claims – including one for a crime committed in the 1930s.

The bottleneck in the Victims Compensation Tribunal has forced the suspension of new claims. There is speculation in legal circles the state government will wind it up.

Resolution of a claim now takes an average of 30 months, and can stretch to four years or more.

More than 23,500 claims are awaiting a decision and a further 2100 are listed for hearing.

One lawyer who deals with the tribunal – where cases initially knocked back by claims assessors are heard – said he ”wouldn’t be surprised” if it were wound up.

People can wait years before being knocked back for compensation.

One applicant, who lost three teeth and sustained serious dental injuries in an assault, sought compensation for costs, including $20,000 in dental treatment. After a wait of more than two years, the case was dismissed because it did not meet the minimum compensation threshold determined by the act.

In another case that went to the District Court, a girl who was abused by her mother and stepfather before being placed in foster care in 2005 at the age of three, had a series of claims lodged on her behalf by a guardian.

Her claim was lodged in 2007. An assessor awarded ”S” compensation for some claims, and dismissed others, finding they were part of a single act of violence.

The decision was appealed to the tribunal in 2008, and the District Court in July 2009. The appeal was upheld in the District Court, the tribunal’s decision overturned and the case sent back for a new decision. The process took more than two years.

A review of the 26-year-old tribunal was finished last July but the government is yet to announce its response.

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About BPC Lawyers: BPC 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.

Compensation Hopes For Faulty Hip Implant Victims

Compensation Hopes For Faulty Hip Implant Victims

Medical giant Johnson & Johnson is under mounting pressure to settle a class action launched against it by 4500 Australians who were fitted with the company’s infamous metal-on-metal hip replacements, after a US victim was awarded $8.3 million.

Lawyers representing the Australians fitted with the articular surface replacement (ASR) hip implants will return to court this week buoyed by the US case – which also revealed that Johnson & Johnson executives were told the implants were faulty but did not act.

Fairfax Media understands the Australian legal team may ask the Federal Court on Wednesday to order Johnson & Johnson, and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.

The ASR hips, implanted in more than 90,000 people across the world, began causing problems within six months of the first operations in the mid-2000s.

Australian national registry data showed last year that 44 per cent failed within seven years.

It has emerged that the high-carbon metal ball in the device was grating against its socket and sending metal fragments, rich in cobalt and chromium, into the bloodstream. Thousands of people fitted with the device were found to have symptoms associated with cobalt poisoning including severe pain, partial loss of vision and hearing, depression, lethargy and heart problems.

In December 2009, Johnson & Johnson discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.

But many have seen little improvement, suggesting that they have suffered permanent damage from the heavy metals that entered their bloodstream.

“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly, I’m unstable on my feet, I can’t sleep – it wakes you up,” he said. “It’s affected every aspect of my life.”

The members of the Australian class action received a major boost earlier this month when a jury in Los Angeles ordered Johnson & Johnson to pay more than $8.3 million to Montana man Loren Kransky.

The case – the first of more than 10,000 similar legal battles set to take place – sets an important legal precedent, paving the way for a cascading series of damages pay-outs that is likely to run into the billions.

Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the US decision would put pressure on the company’s Australian arm to consider a substantial settlement.

“It sends a very strong and clear message to Johnson & Johnson,” Ms Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”

The US case has revealed internal documents that showed company executives were told by US surgeons that the design of the implants was faulty. Some doctors urged the device maker to slow or stop selling the implant, but these warnings were largely ignored.

Lawyers for the Australian victims claim that those fitted with the implants were “unwitting participants in a large unofficial trial being conducted by DePuy and its agents and affiliates.”

Johnson & Johnson and DePuy have said they will appeal against the US decision.

Lawyers in the Australian case said the company “deployed an international and interdisciplinary team to design the implants, which used up-to-date scientific and technical knowledge, and subjected the implants to an extensive testing program over several years”.

They say all hip replacement or resurfacing devices carry risks, and surgeons were made aware of this.

Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages – damages awarded to punish and deter companies from future wrongdoing. Mr Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.

Another stumbling block could be Australia’s extremely tough damages regime, which places strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” said lawyer Ben Slade from Maurice Blackburn, who are also part of the class action. Mr Russell’s wish is for Johnson & Johnson to acknowledge its wrongdoing.

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About BPC Lawyers: BPC 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.

Family Wins $63M Compensation From Johnson & Johnson

Family Wins $63M Compensation From Johnson & Johnson

The family of a US girl who lost 90 per cent of her skin after suffering an allergic reaction to pain relief medication has been awarded $63 million in compensation.

Samantha Reckis was seven years old in 2003 when she took “Children’s Motrin”, a pain reliever manufactured by a subsidiary of Johnson & Johnson, to treat symptoms of a fever, the New York Daily News reports.
But the Massachusetts girl had an extreme allergic reaction to the medication and developed toxic epidermal necrolysis, a skin disease which can be fatal.
She suffered kidney, liver and reproductive damage, went blind and lost 90 per cent of her skin.

After six months in hospital she left weighing only 14kg, but the family’s lawyer Brad Henry said the girl’s ordeal did not end there.

“When they finally were able to wean her off pain medications and take out the ventilation, within a couple of weeks she had a stroke because of the liver damage,” he said.
“They had to drill through her head to relieve the pressure.”

In a lawsuit filed six years ago against pharmaceutical giant Johnson & Johnson, the family alleged the medication’s bottle was not clearly labelled with warnings of its risks.

But the pharmaceutical company defended the product as safe and appropriately labelled.
Toxic epidermal necrolysis is an extremely rare condition, but Mr Henry said that did not diminish the company’s responsibility.

“All we’re saying is that if parents are in a position to give a discretionary drug to their child, they should at least be given the option to know whether this is a good idea or not,” he said.

Source: WHDH, New York Daily News

Pub Owners Seek Compensation For Flood Effort

Pub Owners Seek Compensation For Flood Effort

Owners of the Murphys Creek Tavern, west of Brisbane, have launched legal action after their claim for business expenses incurred during the 2011 flood disaster was rejected.

Owners James and Lynette Barns sought $246,712 compensation from the Department of Communities, Queensland Police Service and Lockyer Valley Regional Council for out-of-pocket business expenses accrued during the 2011 flood disaster.
The documents were lodged in the Ipswich District Court by Toowoomba firm Condon Charles Lawyers.

Central to their claim is the State Government reversed its position recognising the tavern as serving as an evacuation and recovery centre at the height of the disaster and in the weeks after.

The claim includes: $39,000 for use of premises; $4000 for supply of food and consumables from hotel stock; $12,500 for loss of catering income; $11,400 for loss of bar income; $34,000 for co-ordination of evacuation centre activities; and $9300 for providing a forensic compound and storage centre.

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Lawyer Convicted of Contempt

Lawyer Convicted of Contempt

A Victorian lawyer has been convicted and jailed for contempt after he defied a court order with the full knowledge that doing so could lead to imprisonment.

David Brian Forster, a solicitor of 30 years, was jailed on Friday for a month but his sentence was suspended.
He was ordered to sign an undertaking that he would not commit any further breaches of the relevant court order, which was put in place early last year. It prohibited him from contacting lawyers retained by the legal industry’s watchdog, the Legal Services Board, in the board’s long-running legal matters against him.

The order was made after Forster hand delivered a letter to the office of the board’s barrister, Kristine Hanscombe, SC, which said he was having “emotionally very disturbing thoughts” about her. He gave examples of what he perceived to be her unfair behaviour and described her as “vindictive”.

He had also approached her in court about the same time and repeatedly called her a “monster” close to her face and in an intimidating way.
And despite being aware of his obligations, Forster, 63, sent an email to Dr Hanscombe in October that was intended to intimidate her and cause her to withdraw from the proceedings against him. He threatened to make applications and complaints against her to the Legal Services Commissioner in the hope she would disqualify herself from acting as legal counsel against him.

Forster had submitted that when he sent the email he was preoccupied with his many legal matters, was tired, stressed and overwhelmed by the forces against him, in addition to forgetting about the order’s existence. At the time he had three matters before the Court of Appeal, and had mediation approaching with the Legal Services Board, in addition to seven matters before the Victorian Civil and Administrative Tribunal.

But the Victorian Supreme Court Justice Karin Emerton was satisfied beyond reasonable doubt that Forster’s failure to comply with the order was deliberate and this failure was not merely casual, accidental or unintentional.

On Friday, Justice Emerton said she believed a one-month jail term, suspended for 12 months, was the appropriate penalty.
She said she believed the threat of jail, rather than a fine, was the only way Forster would realise the seriousness of his offending, which was made worse by the fact that he was a lawyer and knew the importance of not interfering with the course of justice.

Forster told Justice Emerton he had received bills for $1.3 million from receivers and $1.4 million from the Legal Services Board but she ordered him to pay the board’s legal costs on an indemnity basis.

Forster was investigated for unlawfully double-billing clients involved in Australia’s longest-running compensation battle among other serious trust accounting breaches.

Formerly of Hollows Lawyers, Forster handled 89 of 214 personal injury claims against the Australian government by survivors of one of the nation’s worst peace-time disasters, the 1964 collision between the navy destroyer HMAS Voyager and the aircraft carrier HMAS Melbourne.

After allegations that Forster had misappropriated funds relating to the case, the Legal Services Board refused to renew his practising certificate in September 2010.

He appealed the board’s decision to the Victorian Civil and Administrative Tribunal and lost.
VCAT concluded that he was not fit to practise based on his credibility as a witness, because of the trust account irregularities committed by his law practice and because he had behaved “dishonestly and put his interests ahead of his client”.

His legal firm has been placed in receivership but because provisions in the Legal Profession Act state that a person is entitled to practise until all of their appeal rights have been exhausted, Forster continued working.

He still has multiple appeals pending, in addition to having several other matters before the tribunal.

Last month the Court of Appeal ordered Forster to stop practising until his legal matters were finalised.

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Australian Surgeon Sues Google Over ‘bankrupt’ Auto-complete

Australian Surgeon Sues Google Over ‘bankrupt’ Auto-complete

A Port Macquarie surgeon is suing Google for defamation over an auto-complete search suggestion that he believes has cost him clients.

Google has been involved in several lawsuits around the world in the past year revolving around its autocomplete suggestions and has increasingly been held responsible for content on its search pages.

The suit, filed by Dr Guy Hingston in the US district court in California, claims that when you type “Guy Hin …” into Google the words “Guy Hingston bankrupt” appear in the auto-complete. He claims this is defamatory as he is not bankrupt.

Dr Hingston’s Australian lawyers Beazley Singleton had written to Google Australia in December threatening legal action. The firm wrote Dr Hingston had “lost a number of patients and financiers [who] are refusing to deal with our client as a consequence of the reference on Google which is associated with his name”.

The complaint, seen by Fairfax Media, claims Dr Hingston’s career as a breast surgeon depended on maintaining a good reputation which had been damaged after Google had shown him in a “false light”. He is seeking at least $75,000 in damages plus court costs for the “significant harm and economic loss” caused by the matter.

According to a Port Macquarie News report from January 2009, an aviation group owned by Dr Hingston, CoastJet, closed its doors and went into administration two-and-a-half years after he bought it. He told the paper the main reason for CoastJet’s demise — which reportedly resulted in the loss of 30 jobs — was the loss of a $2.8 million deposit on two new jets when American company Eclipse Aviation went into bankruptcy.

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Hospital Admissions Soar After Serious Dog Attack Numbers Rise

Hospital Admissions Soar After Serious Dog Attack Numbers Rise

SERIOUS dog attacks leading to hospital admissions are at a record high level, prompting calls for both owners and dogs to undergo training.

There were 230 attacks across South Australia last year, an increase of 35 on the previous year.
Last year’s figures are the highest since 2006, when there were also 230 attacks.

The figures, released by the Dog and Cat Management Board, rely on hospital statistics showing 63 of the attacks, or 27.4 per cent, involved children younger than nine and people were hospitalised for a total of 673 days, and 71 hours in intensive care.

Australian Veterinary Association spokeswoman Dr Kersti Seksel said owners of dogs which were considered a problem should undergo mandatory training as well as the dogs themselves.

“Some dogs are dangerous and we probably should not have them as part of the community especially as many people have no idea of how to identify their dangerous behaviour,” she said.

Berger and Co personal injury compensation law expert Emma Marinucci said owners of dangerous dogs should make sure they had insurance for their animals as part of their home and contents insurance.

“If people are attacked by a dog they can pursue their rights to compensation because the dog owner is responsible,” she said.

Dr Seksel said people should take dog management seriously, even though most would never bite.
She said the most important problem for people to identify in potentially dangerous dogs was anxiety, the cause of most attacks.

“They are living creatures, they have emotions, they feel pain, and there are a lot of reasons why they need to be managed,” Dr Seksel said.

The Dog and Cat Management Board also reported an increase in minor dog attacks on people not requiring hospitalisation, rising from 893 to 1023.

Martin McKenna, author of the dog behaviour manual What’s Your Dog Telling You?, said some breeds had been turned into killing machines and were likely to attack people.

“They are bred to get into a fight at any moment and when they are in a fight go on forever until death.”
Dog training expert Olivia Harvey said a healthy dog would give several warning signs before biting a person.

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$100,000 Payout Plea

$100,000 Payout Plea

Sean Fewster, Court Reporter

A COUPLE tied up, robbed and bashed with a hammer in a seven-hour home invasion want $100,000 compensation.

Grant and Jill Hall, who were attacked by John Leonard Knott, have applied for the maximum amount available under Criminal Injuries Compensation legislation.

They say they “have suffered, and will continue to suffer” physical and mental injuries, as well as loss of income, because of Knott’s assault.

Their case, which stalled in 2003, can go ahead now the 58-year-old has begun his sentence.
In October, 1998, Knott broke into the Halls’ Mount Osmond home wearing a mask. Over seven hours, he tied them up, robbed them and bashed them with a hammer.

District Court Judge Marie Shaw last week jailed Knott for a minimum 27 months, saying she was “entitled to be merciful” because of his efforts at rehabilitation. The Office of the Director of Public Prosecutions is examining the sentence to determine if it should appeal on the grounds it was “manifestly inadequate”.

When the Halls filed for criminal injuries compensation – on August 17, 2001 – the identity of their attacker was unknown. Knott was not arrested until 2002, when he was linked to the attack by a DNA sample.

The husband and wife are seeking $50,000 each. “As a result of the injuries, (we) have been unable to engage in normal employment and are unlikely in the future to be able to engage in normal employment,” they say.
If Knott does not file a defence against the claim, it will be heard by a judge in chambers and brought to a settlement.

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Wheelie-Bin Killer Valerie Parashumti Wants $337,000 Accident Compensation

Wheelie-Bin Killer Valerie Parashumti Wants $337,000 Accident Compensation

By Nicole Cox

CONVICTED killer Valerie Parashumti has applied for publicly-funded compensation over injuries she sustained in a road accident two years before she and her lesbian lover bludgeoned 16-year-old Stacey Mitchell to death and dumped her in a wheelie bin.

The Insurance Commission of WA has engaged one of the state’s leading insurance litigation firms, WHL Legal, to handle the case. Parashumti was 16 when she was hit by a car while riding a bicycle across the intersection of Walter and Collier roads on July 17, 2004.

She was taken to hospital suffering leg injuries. Court medical assessments ordered for her 2008 murder trial also detail the “possibility of frontal lobe damage” to the brain from the accident. She stands to gain up to $337,000 for pain and suffering arising from the crash. In addition, the insurance commission says, there is no financial limit to damages that can be paid for past and future medical treatments and loss of earnings depending on the extent of the injuries. In March 2008, Parashumti and Jessica Stasinowsky were sentenced to strict security life imprisonment with a minimum of 24 years for murdering Stacey Mitchell on December 18, 2006.

They had drugged, bludgeoned and strangled Ms Mitchell at the Lathlain house they shared, then knelt over her body and kissed. They recorded the blood-stained murder scene on a mobile-phone camera, before shoving their victim’s body into a wheelie bin. Parashumti’s father, Nick, said a claim for personal injury compensation had been lodged several years ago, but the family had never received a payout. In the meantime, his daughter was charged with Ms Mitchell’s murder and the action was delayed.

Mr Parashumti said he was unaware of the latest claim, but his daughter should receive compensation for injuries sustained in the crash. “She’s done a bad thing (the murder), there’s no doubt about that,” he said, “But she’s entitled to some compensation.” Insurance Commission of WA managing director Vic Evans declined to comment specifically on Parashumti’s case, but said nothing precluded a person serving jail time from a compensation payout for injuries in a motor vehicle crash. Parashumti’s lawyer David Edwardson QC told the WA Supreme Court in January 2008 that his client had been involved in a “horrific” car crash in 2004 and doctors’ reports indicated the “possibility of frontal lobe damage” of the brain.

Premiums for compulsory third party insurance are paid by motorists as part of their vehicle registration in WA. The fund, administered by ICWA, the State Government’s insurer, is used for fatal and personal injury compensation pay-outs.

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No damages for man left quadriplegic by police shooting

No damages for man left quadriplegic by police shooting

Date: December 17, 2012 – 2:01PM

The family of a man rendered quadriplegic by a police bullet could quit the capital after the ACT Court of Appeal denied him $8 million in damages.

The distraught family rallied around Jonathan Crowley outside the ACT Supreme Court building as news of the verdict sank in. Mr Crowley’s father, Keith, is his son’s primary caregiver and the family scrapes by on their combined superannuation and pension entitlements. He said the family did not have the means to mount a High Court challenge and the only way to continue funding his son’s care was to sell their home and move interstate.

The retired school principal is fighting cancer and must regularly catch the train for treatment at Westmead Hospital in Sydney. Jonathan Crowley was in the grips of a psychotic episode in December 2001 when he left the family home with a kendo stick and walked through Chapman chanting religious slogans.

Two police officers failed to subdue him with capsicum spray before Senior Constable Glen Pitkethly shot him in the neck. The injury left Mr Crowley wheelchair-bound and requiring constant care.
The day before the shooting, an ACT Mental Health psychologist recommended Mr Crowley be treated at a hospital. In May 2011, Justice Hilary Penfold awarded Mr Crowley $8 million damages after ruling ACT Mental Health and the Australian Federal Police had been negligent and owed Mr Crowley a duty of care.

But the Court of Appeal disagreed.
Justices Anna Katzmann, Bruce Lander and Anthony Besanko unanimously upheld appeals by the Australian Capital Territory and the Commonwealth of Australia and Mr Pitkethly, The trio found ”the trial judge erred in finding that a duty of care arose at any time” after the police arrived on the scene. ”We consider that the trial judge erred in holding that the relationship between Mr Crowley and [ACT Mental Health] was that of health care provider and patient. ”[Justice Penfold] also erred in holding that ACTMH owed Mr Crowley a duty to provide appropriate treatment and care to him as a person for whom ACTMH had … taken on a responsibility.” ”We do not think that the scope of the duty can be defined in terms of a duty to carry out an assessment.”

Mr Crowley said the finding was unexpected and devastating. ”[It was] a terrible, terrible decision for me after so many years of waiting for justice,” Mr Crowley said. ”I felt quite positive about it so it’s been a real shock. I can’t understand the verdict at all, it doesn’t make sense to me.”

Camille Corson, Mr Crowley’s sister, said the family recently took out a loan for $15,000 for a wheelchair-accessible van so Mr Crowley could attend appointments with specialists. She said her parents and brother had been living on ”the sniff of an oily rag for 11 years”.

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Comp cheat busted in park sex romp

Comp cheat busted in park sex romp

A SEX romp at a public park helped prosecutors convict a California woman of faking an ankle injury to collect workers’ compensation payments, authorities said.

Modupe Adunni Martin, 29, was sentenced to nine months in jail on Thursday in San Mateo County after pleading no contest in October to felony workers compensation fraud.

Martin was caught on videotape in August 2009 throwing her crutches into a car and running in high heels to meet her boyfriend at a public park, where she took part in a sex act that doctors concluded she couldn’t have done with an injured ankle, District Attorney Steve Wagstaffe said.
She was arrested and charged with 10 counts of insurance fraud.

“I guess love just helps one get over injuries,” Wagstaffe said in a phone interview on Friday.
Martin reported the injury in February 2009 while working as a janitor for the Sequoia Union High School District.

Claiming the injury left her unable to walk, Martin made 10 visits to doctors over a three-month span. A co-worker suspected she was exaggerating and alerted the district, which advised investigators.

Martin was taken into custody after sentencing. A call to her attorney, Emily Andrews, by The Associated Press was not immediately returned.
Martin was also sentenced to 3 years of supervised probation and ordered to pay more than $79,000 in restitution.

Cancer victim wins fight over withheld super

Cancer victim wins fight over withheld super

Date: December 7, 2012
Louis Andrews

A former public servant has won his legal fight against the Commonwealth government for withholding his super for more than a decade.

Marty Guy’s victory came after years of waiting, and five similar cases remain on foot before the ACT Supreme Court.

But the 72-year-old Queanbeyan man could not be in court for the news – he was at the doctor’s surgery.
Mr Guy has been diagnosed with stage-four prostate cancer, and the court has previously heard his prognosis was ”likely to be measured in months, rather than many years”.

His solicitor, Richard Faulks, called Mr Guy at the surgery with word of the Thursday’s unexpected verdict.
”It’s nice that he’s finally got some recognition of the wrong that was done to him so many years ago,” Mr Faulks said. ”Now we have to move quickly towards finalising the matter so he can get some financial security while he can still enjoy it.”

Mr Guy sued the Commonwealth of Australia for negligently excluding him from its superannuation scheme for more than a decade. The Queanbeyan man worked for the Department of Administrative Services for about 16 years but was initially told he could not join the scheme as a temporary worker.
But more than a decade later, in 1996, he was told he was in fact eligible.

Justice Richard Refshauge heard the six cases together in 2009 and 2010 before reserving judgment.
Mr Guy’s legal team, from Snedden Hall & Gallop, asked for the matter to be brought back before the judge on Thursday in the hopes of expediting a decision. ”The latest [prostate cancer] testing showed quite a significant increase,” Mr Faulks told the judge. ”All I can tell you is the prognosis is pretty poor.”

Justice Refshauge said while the matter had not been resolved as quickly as the plaintiff hoped, he intended to award judgment to Mr Guy. ”I’ve formed a clear view that there should be judgment for the plaintiff, I’m still struggling with the quantum [amount of damages] at the moment,” he said.

The judge formally ruled in favour of Mr Guy but adjourned the case so he could finish writing out his reasons and determining the final payout. ”I’m sorry it can’t be more than that, it’s just that the pressure of work means I haven’t been able to do that,” Justice Refshauge said.
”It’s unfortunate and it’s a stepped approach, but it’s the best I can do at the moment.”

The Commonwealth will have 28 days to appeal the decision after the formal reasons are handed down.
Mr Guy could not be reached for comment on Thursday afternoon.

But in July he told The Canberra Times he thought the eventual decision would answer a lot of questions for other former public servants in a similar situation.
”I know there’s a lot of people just sitting on the fence out there,” he said.

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ADF injury, illness stats ‘a disgrace’

ADF injury, illness stats ‘a disgrace’

Date: December 3, 2012
David Ellery

AT LEAST one in eight of the 18,206 diggers who have served in Afghanistan between 2005 and October 2012 fell victim to a non-combat-related injury, or physical or mental illness.

The figure peaked at almost one in five in 2009 with 851 Australian Defence Force members reporting non-combat-related illnesses or injuries that year.

Defence blamed the 17-fold spike on ”confusion” that it said led to ”significant under-reporting” prior to 2009. The true figures for illness and injury over the past seven years are almost certainly higher. A senior soldier welfare advocate said the statistics were a disgrace. He said a 12.5 per cent casualty rate would not be tolerated in another workforce.

”The employer would be held to account,” Defence Force Welfare Association national president David Jamison said. ”There would be a royal commission or a judicial inquiry.” Mr Jamison, a former Australian Army colonel, wants a covenant to be developed to spell out what soldiers have given up in their commitment to Australia and what the country pledges to do in return. ”We are having difficulty getting the support we need for that,” he said.

Defence told Fairfax Media that 2276 out of 3841 work health and safety incidents in Afghanistan, which included ”near misses, exposure, illness etc” had resulted in injury or illness. This is in addition to the 39 soldiers killed and 242 wounded in action since the war began.

A Defence spokesman said in many cases injuries and illnesses were minor and included sprained ankles, minor cuts, abrasions and bruises sustained during physical fitness training, head colds and gastro-enteritis.

Mr Jamison said combat wounds could also be relatively minor but had to be reported as a matter of course. He said mental illness and psychological issues, such as post-traumatic stress disorder fell into the ”non-combat-related category”. Defence insiders have told Fairfax Media that diggers are often loath to report non-combat-related injuries as, once disclosed, they appeared on annual fitness reports and could affect career opportunities. While all soldiers injured in Afghanistan or the United Arab Emirates are compensated at the same rate as for combat wounds, those injured while training to go are not.

Mr Jamison, who said a recent review of military compensation had fallen short of delivering a fair result for many diggers, wants abolished the distinction between whether an ADF member is hurt in a combat or non-combat zone.

”There is a higher degree of recognition [in compensation] for wounds received in combat [zones],” he said. ”My personal view is the level of disability or impairment should dictate the level of compensation.”
Mr Jamison said a decade of conflict coupled with the relatively small size of the ADF had contributed to the problem of exposure to illness and injury.

”We are seeing modern soldiers clock up significantly greater combat experience than their forefathers in World War II,” he said. ”I have heard of one SAS member who has completed 16 service rotations in Afghanistan and Iraq. We have to look after these people.”

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judge criticises KFC poisoning appeal bid

‘Not within a bull’s roar’: judge criticises KFC poisoning appeal bid

Date: November 16, 2012
By: Paul Bibby

The attempt by KFC to overturn an $8 million damages decision in favour of a young girl who contracted severe salmonella poisoning from a chicken twister has suffered a setback, with a Supreme Court judge criticizing the company’s grounds for appeal.

Monika Samaan became seriously ill after eating the twister at the Villawood KFC in 2005 when she was seven years old, suffering brain damage that has left her confined to a wheelchair and unable to speak.
After an extended court battle, KFC was ordered to pay $8 million to Monika’s family to assist with the intensive day-to-day care she will require for the rest of her life.

The fast-food giant elected to appeal the decision, including seeking an order that the Samaan family pay its legal costs – likely to amount to hundreds of thousands of dollars. But the appeal hit a stumbling block in the NSW Supreme Court today, with Justice Clifton Hoeben ordering KFC’s lawyers to rewrite their grounds of appeal because they were simply a restatement of the company’s failed argument in the initial court hearing.
“They don’t come within a bull’s roar of complying with the rules [relating to appeals],” Justice Hoeben said.
“They really read as submissions that should have been or probably were made at trial … there’s hardly any law there.”

KFC denies that the Samaan family purchased a chicken twister from the Villawood store on the day in question, and thus maintains that it was not responsible for her infection. This argument forms the backbone of the appeal.

Lawyers for the Samaan family say this argument was effectively rejected by the hearing judge, Justice Stephen Rothman, in April this year.

Generally, a successful appeal will be based either on fresh evidence, a demonstration that a judge erred on a matter of law, or proof that a hearing was not conducted in accordance with the proper administration of justice.

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Coles must pay cancer survivor hit by trolley

Coles must pay cancer survivor hit by trolley

Date: October 26, 2012

COLES has lost its appeal against a court ruling that it pay nearly $500,000 in damages to a woman who was hit by a trolley in one of its supermarkets.

Maria Haleluka, 51, was awarded the damages in the NSW District Court last year after she was struck by the box-laden trolley that was being pushed by a Coles employee at Kellyville.

Coles appealed against the court decision, arguing the damages were excessive.

But in a judgment handed down in the NSW Supreme Court yesterday, Justice James Allsop rejected the supermarket’s submissions, saying they ”could be described as less than helpful”. In his judgment, Justice Allsop said: ‘‘the submissions asserted that the primary judge’s view was excessive … No reasoned basis was put for the challenge.”

When Ms Haleluka was hit by the trolley in August 2008, she had been planning to return to work as a registered nurse after being successfully treated for breast cancer.

The following June, Ms Haleluka and her husband became the long-term foster carers for a then 10-month-old boy, who they were hoping to adopt, Justice Allsop said.

In awarding Ms Haleluka the damages last year, Judge Michael Elkaim said the ”optimism which had blossomed” after her recovery from breast cancer had been ”destroyed by the pain she suffers from her right hip”.

He awarded her more than $497,000, which included $40,000 for future medical treatment and more than $110,000 for future economic loss.

In the appeal, the supermarket chain submitted that there were a number of other jobs Ms Haleluka had held in the past, which she could do again.

However, Justice Allsop said that ”the evidence does not support a conclusion that her opportunities are now so meaningful and diverse that assessment of damages for impairment of earning capacity would be misleading”.

The court heard that, since the accident, Ms Haleluka’s husband had been leaving home at 3.30am to be back early to attend to household chores, as she was unable to perform domestic duties.

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Hurt Timorese left with no recourse

Hurt Timorese left with no recourse

Date: August 6, 2010

Lindsay Murdoch

THE Australian Defence Force has admitted its soldiers in East Timor have been in nine vehicle crashes since 2008 in which civilians have been injured, but it has ruled out paying compensation.

One of the accidents left two Timorese brothers unable to work, causing their families to become destitute.

The refusal to pay compensation has stoked ill feeling towards Australian soldiers deployed in East Timor where, under Timorese tradition, people involved in deaths or injuries, no matter who was to blame, compensate victims, even in a token way.

Adelino Madeira, a 33-year-old father of two, and his 38-year-old brother Lorenco Madeira, a father of four, were seriously injured when the motorcycle they were riding on May 29 last year in Lautem district collided with an Australian army vehicle.

Until The Age asked questions about the accident, Defence had kept details about it secret, despite Australian soldiers having provided life-saving treatment for the brothers.

Adelino was evacuated at Australian taxpayers’ expense to Royal Darwin Hospital, where he had emergency surgery and stayed for almost two months.

When the brothers eventually arrived back in their village, the East Timor government gave them $US1500 each. But their injuries were so severe that Adelino has been unable to resume teaching at a local school and Lorenco cannot work as a farmer.

Australian academic Clinton Fernandes, who recently met the brothers in their village, said their families had no permanent income and were suffering. He urged the Australian government to change its no-compensation policy, which he said led to a loss of goodwill towards Australian soldiers.

”The required compensation would be quite modest and far less than the cost of Defence’s glossy brochures on winning hearts and minds on operations,” said Dr Fernandes, a former Australian military officer and a senior lecturer at the University of New South Wales’s School of Humanities and Social Sciences.

Australia has more than 400 soldiers serving in East Timor in the International Stabilisation Force (ISF) that was formed at the height of violent upheaval in Dili in 2006.

Defence are ruling out paying compensation to the Madeira brothers and other accident victims, saying that under a Status of Forces Agreement it is East Timor’s responsibility to meet any such claim.

Defence would not reveal whether the brothers were given an apology or provided with a formal report into the accident.

”The ISF paid close and continued attention to the Madeira brothers’ welfare to ensure they were provided the appropriate level of care,” it said. ”The ISF regrets that this accident occurred.”

Defence’s handling of the victims of its actions abroad came under scrutiny in January when The Age revealed that Australian soldiers abandoned Gracinda da Costa, a 65-year-old mother of nine, after she was struck and seriously injured by an army vehicle on a Dili street last December. The soldiers were unaware for 13 days that she had died from head injuries only hours after the accident.

Defence in February retracted a claim that it had given Mrs da Costa’s family compensation forms and advice on how to fill them out.

Questioned in a Senate committee in June, Defence Chief Angus Houston said Defence had modified directives and policies regarding the management of injured civilians following a review of Mrs da Costa’s case.

Unlike other victims, Defence gave her family an undisclosed payment in April. Air Chief Marshall Houston told senators the no-liability payment was for funeral and other expenses relating to her death.

Asked whether there were other matters of this kind outstanding in East Timor, he replied: ‘‘none whatsoever.”

Replying to questions from The Age, Defence said of the nine vehicle crashes involving Australian soldiers in East Timor since 2008, four had led to injuries classified as minor.

La’o Hamutuk, an independent organisation in Dili, earlier this year urged Defence to pay compensation for personal injury, including loss of livelihood, that is caused by its soldiers and to develop a complaints process that allowed people to register and check the status of their complaint.

Under the Status of Forces Agreement, Timorese citizens cannot resolve complaints about Australian soldiers in the Timorese justice system.

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Compensation court fight shines a light on toll road pitfalls

Compensation court fight shines a light on toll road pitfalls

Date: October 1, 2012

Jacob Saulwick

SYDNEY’S last big toll road project, the Lane Cove Tunnel, has become a legal morass for some big super funds, investment banks and transport consultancies as a large investor in the infrastructure chases compensation.

The troubles are a cautionary tale on the eve of the release on Wednesday of the latest plan from the NSW government’s adviser, Infrastructure NSW, for more toll roads to criss-cross Sydney.

The Lane Cove Tunnel, finished in 2007, went into receivership at the start of 2010, the victim of wildly optimistic traffic forecasts and an inability to pay its debts.

The road is still there and operated by a new owner, Transurban, and charging motorists $2.94 a trip.

But one of the original investors continues to pursue compensation for the collapse, in proceedings that might as well constitute a textbook for how not to organise a toll road.

As trustee of two superannuation funds – REST Infrastructure Trust and the Infrastructure Equity Fund – AMP Capital Investors contributed $80 million of the $500 million in equity raised for the Lane Cove Tunnel project in 2003.

In 2009 AMP started to sue the two transport consultancies that provided the traffic forecasts underpinning the project, Parsons Brinckerhoff and Booz Allen Hamilton.

Booz has been renamed Booz and Company, and has become the O’Farrell government’s transport consultancy of choice.

AMP – which wants to recoup its $80 million plus interest, about $160 million – alleges the two firms ”failed to exercise reasonable care and diligence” in making ”misleading or deceptive” predictions of how many motorists would use the road.

According to AMP’s claim, in 2002 Parsons Brinckerhoff made the ”base case” prediction that 187,700 cars would use the road every day by 2011.

Booz’s ”downside case”, meanwhile, had 149,900 cars using the road every day by 2011.

In 2012 just over 70,000 cars pass through the Lane Cove Tunnel each day. The consultants, however, accused of negligence, are hitting back.

Last month, Parsons Brinckerhoff filed its defence in the Supreme Court, which highlighted AMP’s role as an investor and an adviser to funds on whether or not to invest.

At the start of 2003, Parsons Brinckerhoff claims, an AMP investment committee recommended the project to its own funds, using forecasts that did not accurately reflect Parsons Brinckerhoff’s forecasts.

Parsons Brinckerhoff also alleges it was told by an investment bank working on the project, ABN Amro, it should ”specifically” not try to predict off-peak traffic volume periods by looking at traffic numbers.

Instead it should ”estimate traffic volumes in off-peak periods by applying expansion factors to traffic volumes modelled for peak periods”.

This had the effect of significantly inflating traffic predictions.

ABN Amro has since been bought out by another investment bank, RBS.

Lawyers expect the litigation to continue for years. With similar litigation running in Brisbane, a judge might be called on to set new standards for traffic forecasting. The transport industry says a new financial model is needed for toll roads.

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Compensation crackdown squeezes lawyers along with injured workers

Compensation crackdown squeezes lawyers along with injured workers

Date September 28, 2012

An old legal acquaintance of mine got in touch by email.

”I have read your articles on somewhat esoteric subjects … however I wonder if you might care to write something about an issue of real significance to the average person” – i.e. recent amendments to the Workers Compensation Act.

The message was pretty clear. Forget Julian Assange and all those bleeding heart issues and wake-up to yourself.

Amid myriad world shattering issues jostling for attention, it is now the turn of workers compensation to get its place on the opinion page.

These changes in NSW were inevitable as soon as Barry O’Farrell and his crew got their ample backsides on the Treasury leather.

There were a couple of driving forces, one of which is that the Coalition ideologically prefers employers to workers, the other being a $4 billion black hole in the scheme administered by WorkCover.

One way of fixing the hole would have been to jack up the premiums payable by employers to their insurers. That looked unattractive because employer lobby outfits started screaming about the thousands of people who would be sacked if the cost of workers compensation coverage went up.

Obviously, the far more attractive approach was to conjure a variety of ways to squeeze injured workers until the pips squeaked.

The genesis of today’s problems goes back to Bob Carr’s era in 2001. The agency, WorkCover, against the advice of other ”stakeholders” in the system, decided to cut off lump sum payments to the injured and impaired.

Instead, everyone would have to take weekly compo payments.

Fast forward 11 years and WorkCover insists the scheme is in dire need of changing because, shock horror, weekly payments are out of control.

The remedy, therefore, is to make claiming for weekly benefits arising out of workplace injuries as unattractive as possible. But the ways of achieving this outcome are brutal.

A system is invented of non-appealable assessments by the insurers of injured workers’ capacity. In other words, the people who hold the money decide whether an injured worker is entitled to receive the money.

The decision by the insurer about capacity to earn is final and binding. The Workers Compensation Commission, which used to arbitrate on these things, is expressly excluded.

About 40 per cent of the work of the commission used to be deciding entitlements to continuing weekly payments.

That process has been transferred to the insurance companies, so no prizes for guessing who has the upper hand.

Procedural processes are reviewable but not the merits of a decision, which sounds a bit like the Ruddock-era refugee laws.

For the great number of workers there will be no entitlement after 21/2 years of weekly payments and no medical expenses after 12 months from then.

Workers suffering permanent impairment as a result of injury are now retrospectively denied any compo unless their level of impairment is at least 11 per cent.

That’s a massive leap from the previous requirement of 1 per cent impairment and of itself will deny 60 to 70 per cent of the injured from receiving any payment for pain and suffering and continuing treatment.

An insurer does not have to pay medical expenses if the treatment has not been approved in advance, unless the treatment is provided within 48 hours of the injury occurring. There are a whole lot of other get-out clauses, but essentially it means you’ll probably have to ring the claims manager before you ring the ambulance.

There’s no room to have these expenses covered when the injury manifests some time after the accident occurred.

Eligibility for payments arising from heart attacks and strokes, diseases contracted at work and journey-related injuries have all been put beyond reach, except in the starkest of cases.

Then there’s the daddy of them all, legal costs. As a result of an amendment conjured by the Christian Democrats and the Shooters in the upper house, and supported by the government,workers instead of insurers will have to pay their own legal costs in connection with work capacity reviews.

Further, in making a claim for compensation in the first place, each party is to bear their own costs.

Again, this transfers the balance of power to the insurers and makes a nonsense of the right to review of an insurer’s decision.

Unsurprisingly, lawyers were up in arms about being cut out of the game as a way of creating disincentives for claimants.

It’s why one lawyer with 40 years experience in the workers compensation business tells me, ”this is the most vicious, nasty and unjust piece of legislation I have ever seen”.

Certainly, the Nile amendment still stands and it makes accessing the system more difficult.

In the good old days, workers comp lawyers used to make a feast of the process by stacking up multiple claims in the court, earning generous fees for each case, most of which shared similar facts, and then retired to lunch for the rest of the day.

It was one of the great doozies of the law and in part is responsible for the venal mindset of some personal injury lawyers – that the system is there to be easily milked.

As a last-minute repair job, this week the government announced it would create a panel of ”independent” lawyers to provide a free service in reviewing insurance company decisions.

The legal profession was not quite sure how to respond. The bar association said it was an ”incomplete solution” and wanted to know how much money would be funneled from insurers into this legal assistance scheme.

Greens MP David Shoebridge put his finger on the problem, saying the system would reward lawyers chosen by the government who served the interests of WorkCover.

Put another way, there’s nothing like free lawyers to stir the anxiety of expensive lawyers.

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Compensation culpability not ours: Defence

Compensation culpability not ours: Defence

Date February 8, 2010


THE Australian Defence Force has retracted a claim it gave the family of a 65-year-old East Timorese woman, who died after being hit by an army vehicle, compensation forms and advice on how to fill them out.

Defence has also said it would not pay compensation in East Timor, including to the woman’s family, for the actions of its 450 soldiers deployed there.

More than six weeks after Gracinda da Costa was struck on a Dili street, Australian soldiers serving in the International Stabilisation Force, or ISF, in East Timor still have not contacted her family to tell them what happened, express regret or advise them about compensation.

Mrs da Costa’s son-in-law, Cornelio Baros, said the family should be compensated because of the hardship her death has caused her family, including her daughters Fatima, 13, and Josefina, 15, who are now living with separate families.

In Timorese tradition families are compensated, even in a token way, by people involved in a death, no matter who was to blame.

A Defence official said that an ISF medical officer provided Mrs da Costa’s family with compensation forms and advice about how to complete them on December 18, the day she was admitted to hospital. But family members said they had no knowledge of this.

Asked further questions, Defence said the ISF’s medical officer gave a compensation form for property damage – not personal injury or death – to a doctor at the hospital after Mrs da Costa was admitted.

”Given the language barrier, [the medical officer] asked the treating doctor to provide the forms to the family,” Defence said in a statement.

Its statement on January 27 left the impression Defence was open to pay compensation.

It said it was ”inappropriate” for the ISF to contact Mrs da Costa’s family while a Timorese police investigation into the death was underway.

Defence said that under the terms of the agreement which saw Australian soldiers deployed in East Timor in 2006 the Timorese government ”pays compensation to those citizens affected by ISF actions”.

The statement said complaints against the ISF are investigated by the ISF and Timorese government and ”resolved through negotiation between our two governments”.

The Herald has reported that Australian soldiers were unaware for 13 days that Mrs da Costa had died from a head injury the day she was admitted to hospital.

A brief statement issued by Defence on January 21 – more than a month after the death – said military personnel administered first aid at the scene before a woman they did not name was taken to hospital by an Timorese ambulance.

The statement said the woman suffered only a broken leg and lacerations.

But Mr Baros said Mrs da Costa had a 10-centimetre gash on her head, among other injuries, and doctors could not save her after a three-hour operation.

Australian troops in East Timor, in effect, have immunity for any crimes they commit, on and off duty.

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CSR left bearing the cost of unfinished business

CSR left bearing the cost of unfinished business

Date: February 5, 2010

Elisabeth Sexton

Buried deep in the federal government’s too hard basket is some unfinished business from the James Hardie asbestos furore in 2004.

Years ago the government received two proposals for changing the Corporations Act to ensure the scandal would not be repeated.

After Wednesday’s Federal Court ruling that CSR’s proposed demerger cannot proceed because of its potential impact on asbestos compensation, maybe it’s time for those suggestions to be unearthed.

Presumably the business community has previously argued, and politicians accepted, there would never be another James Hardie.

After all, the company’s reputation took a hammering unmatched by any other blue-chip in recent memory,

Ten directors and executives were successfully sued for breaching their duties (nine have launched an appeal) and after a three-year negotiation with the NSW government, the shareholders resumed responsibility for an expected $2 billion in asbestos compensation which the company had disavowed in 2004.

But a few short years later, Justice Margaret Stone has blocked CSR’s proposed restructure due to concerns about how it might affect future sufferers of asbestos diseases.

This happened although CSR never copied James Hardie’s refusal to meet claims.

If one of the reform proposals had been implemented, CSR might have been saved the damage to its reputation, the 9 per cent drop in its share price since last Friday’s court hearing, and the vast sums and time it wasted preparing for the demerger.

The government could have clarified the legal status of people yet to fall ill from exposure to products mined or manufactured long in the past, the prime (although not only) example being asbestos.

A second topic which has received little attention since 2004 is the avoidance of personal injury compensation through the use of the so-called corporate veil, the doctrine that parent companies are only rarely responsible for the debts of their subsidiaries.

This was not an issue in CSR’s proposal, but it could be revisited too. At least the government should say where it stands.

In his report into James Hardie’s conduct published in 2004, David Jackson, QC, said these two issues pointed to ”significant deficiencies in Australian corporate law”.

The government referred the legal status of future claimants to its private sector adviser, the Corporations and Markets Advisory Committee, which concluded in 2008 there was ”a case for broadening the interests to which directors must have regard in any capital reduction”. The government has not responded.

In its submissions to Justice Stone, CSR accepted that its directors had a duty to consider the impact of the demerger on people yet to contract asbestos diseases.

But it also argued that when it came to a decision to reduce CSR’s capital, the Corporations Act only required directors to ensure the proposal ”does not materially prejudice the company’s ability to pay its creditors”. The act’s definition of creditors did not extend to people yet to fall ill, CSR said.

The company argued that the court had no role in protecting creditors in a capital reduction, let alone unidentified future claimants.

The Australian Securities and Investments Commission, perhaps reflecting Canberra’s unwillingness to buy into the debate, declined to make a submission to Justice Stone on whether the demerger should proceed. Instead, ASIC assured the judge that, contrary to CSR’s submission, she had a wide discretion to intervene on behalf of future asbestos claimants.

Justice Stone agreed that she had broad powers, and used them on Wednesday to stop the demerger.

The easy argument for politicians is to say that the legal system consists of both statutes and judicial rulings, and Justice Stone has looked after the interests of future asbestos claimants. No change needed.

But the business lobby is always agitating for certainty and most companies would prefer an explicit statement of public policy on corporate law to be inserted into the Corporations Act.

CSR clearly thought it was on strong legal ground in putting so much effort and money into planning a scheme of arrangement which involved a capital reduction whose impact on asbestos claimants was very hard to quantify.

Justice Stone decided there was so much uncertainty that CSR’s proposal was inconsistent with public policy and commercial morality.

She said future asbestos claimants could not be equated with other unknown future creditors. ”Their interest arises not from some future dealing with CSR but from their involuntary exposure to asbestos products supplied by CSR before demerger even if, in some cases, exposure does not occur until after demerger.”

The unfairness of involuntary creditors being put at risk was also behind the second proposal for reform put forward in 2004, which relates to James Hardie’s conduct but not CSR’s.

Counsel assisting the Jackson inquiry, John Sheahan, SC, suggested there should be restrictions on the ability of a parent company to walk away from the debts of its insolvent subsidiaries in cases where ”unlike other creditors, involuntary tort claimants dealing with a corporate group entity do not voluntarily assume the risk of the subsidiary’s insolvency”.

Like Justice Stone, he said the fact that the claims related to past conduct was significant.

James Hardie’s shareholders had received dividends in the past from the asbestos operations of its subsidiaries, so why shouldn’t they bear the cost of compensating people killed or injured by those profitable activities?

It’s a question the government hasn’t answered. But there’s no guarantee another corporate restructure won’t prompt it to be asked again.

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