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Medical Negligence & the Inquest into the Death of Luke Wood

Medical Negligence & the Inquest into the Death of Luke Wood

We are fortunate in New South Wales to benefit from some of the most highly trained medical practitioners in the world.

However, incorrect diagnoses and negligently performed medical procedures do sometimes occur. The consequences can be catastrophic.

The recent Inquest into the death of Luke Wood, a Sydney bodybuilder, and former Australian bodybuilding champion, is a timely reminder of this fact.

On August 20, 2011, Mr Wood underwent a kidney transplant. Three days later, on August 23, his body began to show symptoms that it was rejecting the kidney. On August 26, despite the risk of kidney rejection, he was discharged in circumstances that are reported to have been allegedly premature.

Ultimately, on August 31, 2011, Mr Wood was rushed to the Hospital after he collapsed at home. He died at Sydney’s Westmead Hospital following cardiac arrest which was reportedly caused by the “massive hemorrhage” in his abdomen following his transplant. With the Inquest continuing, the circumstances of his death are not yet fully apparent. Evidence, however, given by his treating practitioners is reported to have indicated that not only was he required to wait over four hours for a CT scan, but that the emergency physicians that treated him did not have access to his complete medical records as they were locked in a secured room and inaccessible.

The Inquest continues.

If you or a loved one has suffered as a result of medical negligence, you should contact BPC Lawyers on 8280 6900 to speak with a specialist in medical negligence.

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

BPC Lawyers successful in the High Court of Australia

BPC Lawyers successful in the High Court of Australia

Extremely important decision for severely injured plaintiffs

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

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

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

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

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

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

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

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

The High Court also stated as follows:-

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

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

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

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

The Dangers of Sydney Roads; Car, Bus and Truck Accidents

The Dangers of Sydney Roads; Car, Bus and Truck Accidents

The recent spate of motor vehicle accidents in New South Wales, particularly those involving trucks and buses, is a reminder of the dangers associated with travelling on Sydney’s roads.

Remarkably, an accident on 13 October, 2014 in which two buses (one carrying school children) made heavy contact, did not result in any fatalities. The collision did, however, initiate a dangerous sequence of events, whereby the school bus lost control and careered into five passenger vehicles causing injuries to the drivers and passengers.

Unfortunately, accidents such as these occur all too often. Tragically, such accidents often result in death or injury through no fault of the injured party. Families can be left with the loss of the primary earner or caregiver or an injured person can be left permanently incapacitated, unable to return to work and provide for themselves or their family.

It is not only those that are injured in motor vehicle accidents that have legal rights, but also those that are left behind following the death of a loved one. Such compensation is provided for by the Compensation to Relatives Act. In order to explore your entitlement to compensation, you must act quickly. Strict time limits apply following car, truck and bus accidents.

Contact our Compensation Lawyers Sydney at BPC Lawyers on (02) 8280 6900 for a free, no obligation discussion with an Accredited Specialist in Personal Injury Law.

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

The Truth About Trasylol

The Truth About Trasylol

Considered a “wonder drug” and designed to prevent excessive bleeding during surgery, Trasylol was administered to thousands of unsuspecting Australians over the course of some 35 years.

At $1,000 per dose, it netted German pharmaceutical giant, Bayer, hundreds of millions of dollars.

There was a lethal catch though; the drug can cause an increase in the rate of heart failure, an increase in the instance of kidney failure and is said to have increased the risk of stroke by 181%. These were risks not posed by the cheaper alternatives. Recent allegations (including a TV item on Sunday Night) suggest that, despite Bayer’s own studies revealing this increased risk, the drug remained on the market and Bayer allegedly suppressed the negative results. It was not until 2006 when the author of one study became a whistle-blower, revealing all to the USA Food and Drug Administration.

In 2007, the drug was pulled off the market worldwide. It was too late, however, for the hundreds of families across Australia who suffered the loss of a loved one. Thousands more must now endure a lifetime of kidney dialysis and blood thinning treatment.

If you or someone you know has been affected by Trasylol, you must act quickly. Limitation periods apply. Please contact BPC Lawyers on 8280 6900 to speak to one of our medical negligence specialists and to find out whether you are entitled to compensation.

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

Cross-Examination: Making Life Easier in the Witness Box

Cross-Examination: Making Life Easier in the Witness Box

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

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

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

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

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

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

Permanent impairment benefits

Permanent Impairment Benefits And The High Court Decision Of Goudappel

Permanent impairment benefits and the High Court decision of Goudappel. The good, bad and the ugly… 

  1. On 16 May 2014 the High Court of Australia full bench (5 Judges) handed down its decision.
  2. Unfortunately, the High Court unanimously upheld the Appeal and reversed the NSW Court of Appeal’s decision.
  3. They did so in very brief fashion – some 67 paragraphs (ironically the same number as the provision which at one time gave pain and suffering benefits!).
  4. The effect of this decision has caused much a headache for both an injured worker and WorkCover.
  5. For workers, the decision effectively confirms the following.
  6. Firstly, there are 2 sets of rules – those who made a claim for permanent impairment benefits before 19 June 2012 and those who did not.
  7. Depending on when your claim for permanent impairment benefits (if any) has been made will depend on which system applies to your permanent impairment claim

The Bad – The 2 Systems

  1. Specific claim for permanent impairment benefits before 19 June 2012

i.         Your are entitled to permanent impairment compensation for WPI or Permanent loss under Table of Maims (for pre 2002 injuries) above 0%

ii.         If you are 10% WPI or received $10,000 or more under the Table of Maims, you are entitled to compensation for pain and suffering between $1 and $50,000.

iii.         You can make as many claims as you want if/when you condition deteriorates.

  1. For Workers who have NOT made a specific claim for permanent impairment benefits before 19 June 2012

i.         You must reach 11% WPI to get any compensation

ii.         You can only make one claim, and

iii.         You cannot get any additional compensation for pain and suffering.

Which one applies to me?

  1. Only those injured workers who have made a specific claim for permanent impairment benefits in writing before 19 June 2012 come under the first system.
  2. Normally workers injured will fill in a standard claim. The ordinary/general claim form is not sufficient.
  3. So if you injured yourself at work after 18 June 2012 or made a claim for permanent impairment benefits (even if you made you original claim) after 19 June 2012 then you fall under the old system.

 The Ugly – The dilemma for WorkCover

  1. As I have previously reported, the NSW Court of Appeal reversed the NSW Workers Compensation Commission’s decision effectively finding that if you made any claim for compensation before 19 June 2012 then the old provisions applied.
  2. WorkCover, on this advice, implemented its policy that it would pay workers in accordance with this decision.
  3. However, now that the High Court has reversed this decision, the question remains as to how WorkCover is to deal with current claims on foot.

WorkCover’s Response

  1. If an injured worker and a Scheme agent (or the representatives) have agreed in writing to the payment of permanent impairment compensation in accordance with the NSW Court of Appeal’s decision they will meet that agreement and pay that compensation.
  2. The effect of WorkCover’s agreement is that if you have agreed or have in fact been paid under the old scheme when you had no right to then, WorkCover will not come after you to reclaim this money.
  3. If however, your claim was not agreed at the time of the High Court Judgment on 19 May 2014 then you will miss out.

The Good – What has happened since the High Court decision?

  1. Some reprieve came for workers who made a claim for permanent impairment benefits before 19 June 2012.
  2. It was thought that if workers decided to seek a top up of permanent impairment benefits due to their condition deteriorating, then that claim would be brought after 19 June 2012 and thus come under the new scheme.
  3. That issue (to date) has been resolved. The Workers Compensation Commission determined that the 1st system would apply in all of its glory: Cauldield v Whelan Kartaway Pty Limited (2014) NSWCC PD 34.
  4. However, WorkCover may want to appeal this decision.
  5. The Scheme Agent themselves, however, cannot, as to do so would raise an issue not submitted/contended before the Commission. However, another scheme agent may wish to bring another ‘test case’ and challenge this decision in the Courts at a future date.
  6. Time will tell…

8 July 2014.

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

Civil Liability And The ‘One Punch’ Laws

Civil Liability And The ‘One Punch’ Laws

Civil Liability and the ‘one punch’ laws. Security Guards, assault, and liability – who can I sue?

Case study: Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250

If someone assaults you could sue them for damages for the loss suffered including perhaps aggravated (punitive) damages for the egregious breach which you have suffered.

The question then normally comes who should/can I sue?

In certain circumstances, a legal entity including an individual or Corporation can be held to account for someone else’s conduct.

The most noticeable example is that of an employer being held liable for the conduct of its employees or the State of NSW being held liable for it’s Police Officers on duty.**

But what about security guards/bouncers at pubs or clubs?

Ordinarily, a security guard is employed by a security company – a $1 company with little if any assets or insurance. Hence, any action brought against security guards/bouncers for an assault will typically lead to a case of all liability but no means of enforcement of an order for compensation.

So what about the club or pub?

A recent case in the Court of Appeal in NSW named Day v The Ocean Beach Hotel Shellharbour Ltd (2013) NSWCA 250 sought to attach liability to the owner of the principles arguing a new situation in which a person can be held to account for another’s actions.

In this case, a bouncer was hired by a security company called Checkmate. He was directed by the pub/club/hotel to remove a patron.

The bounder did so but used excessive force pulling the chair from underneath them causing the patron injury.

There was no doubt that ‘Checkmate’, the employer of the bouncer was liable. But they were no longer in existence! So that left the pub/club/hotel.

The Plaintiff argued that the pub/club/hotel were responsible because:

1. The acts were authorised by the pub/club/hotel,
2. The bouncer was the agent of the pub/club/hotel,
3. Section 91 of the Liquor Act implies agency and liability,
4. The pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

All of the above arguments were rejected.

The Court found that the actions were not authorised, nor was he an agent at law or deemed under the Liquor Act, nor was there a principle enabling his non-employer to be held to account for his conduct.

The only glimmering light is that the Court of appeal felt bound by a higher Court’s precedent on whether a pub/club/hotel should be held to account dually with his employer for the actions of the bouncer.

This leaves the door open for the High Court to clarify this issue which is of great significance. The ‘one punch laws’ and other policies regarding alcohol-fuelled violence and anti-social behaviour, causing government intervention to tackle the issue. Will the Common law follow suit? Time will tell.

There seems to me a least some policy grounds for the creation of such a responsibility. However, the fundamental condition of control seems to be lacking – the pub/club/hotel does not usually exert any sufficient control over the conduct of the bouncer past directing them to do something as opposed to the means of or training as to how to perform such bona fide duties.

If you have been assaulted by a bouncer and are suffering wage loss and/or require significant treatment – we suggest you consider obtaining legal assistance to determine any rights that you may have against a security company or perhaps a pub/club/hotel.

Timothy Driscoll
10 July 2014

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* Section 7 Law Reform (Miscellaneous Provisions) 1983 (NSW)

** Section 9B Law Reform (Miscellaneous Provisions) 1983 (NSW)

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

Workers Compensation: Death Claims

Workers Compensation: Death Claims

When a loved one dies unexpectedly or prematurely, they often leave behind family members who were financially dependent on them.

If the death of that loved one was caused or substantially contributed to by their work, the dependents have the right to claim a lump sum death benefit under Workers Compensation legislation.

We recently acted for the children of a deceased worker. The deceased worked extremely long hours and was on call 24 hours a day, 7 days a week, causing her significant stress. It was not disputed that she was a very dedicated worker.

On the day of her death, the deceased worker was travelling to a work meeting, when she suffered a fatal heart attack. The children brought a claim against her employer, alleging that their mother’s employment had been a substantial contributing factor to her death.

This was a complex matter. The deceased had a variety of risk factors for a heart attack, and some of these were unrelated to her work. However, she also had risk factors (such as not having time to exercise, and being under great stress on the day of her death) which were work-related.

We sought several expert reports from a cardiologist in relation to these issues, and we got reports that were supportive of the childrens’ case. We also took statements from all of the children, as well as close friends and partners as to the deceased’s work situation. This matter was then heard in the Workers Compensation Commission. A decision was given after some months, and the children won. They were awarded the maximum death benefit.

The employer’s insurer then appealed that decision, and several months later, that appeal was heard by the Deputy President of the Workers Compensation Commission. We have recently been advised that the children won the appeal as well.

This has been a long and hard fought case, and was helped by the thorough preparation of both lay and expert evidence. It has been very rewarding to assist such deserving clients, and to see them secure a positive outcome on 2 separate occasions.

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

Cyclist Receives Compensation from CARS After Injury in Car Accident

Cyclist Receives Compensation from CARS After Injury in Car Accident

Mr Smith (name changed for privacy reasons) suffered injury on 08 November 2009.

He was waiting at an intersection on his bicycle when a car did not see him and struck him from behind.

He suffered bruises, abrasions and a soft tissue injury to his shoulders and back. He was prescribed strong pain-killing medication.

In August 2010 the medication he had been prescribed caused Mr Smith to have a seizure as a result of which he suffered more serious injuries including fractures in his back that required surgery.

Mr Smith lodged his claim for compensation with the green slip insurer of the vehicle that caused his accident. It was not long however before he realised that he needed the assistance of a specialist lawyer to guide him through the process.

Initially, the insurer disputed that the injuries were caused in the motor vehicle accident. The insurer argued that the seizure was a separate incident unrelated to the accident and as a result, it was not responsible to pay for any further loss or damage.

We made an application to the Medical Assessment Service of the Motor Accidents Authority on behalf of our client who determined that the injuries suffered in the seizure were caused by the car accident because they arose from the medication that Mr Smith had been taking for pain.

An application was then made to have the claim assessed at CARS (the Claims Assessment and Resolution Service of the Motor Accidents Authority). Mr Smith was awarded $1,818,582.87 plus costs.

Whilst CARS can deal with claims of any size, traditionally CARS has been reserved for cases that are relatively straightforward.  Increasingly, however, CARS has taken on the role of determining claims where serious factual issues are involved.

If you have been involved in a motor vehicle accident and would like advice about your rights, please feel free to contact our office on 8355 4003 to make an appointment to consult with one of our Accredited Specialists.

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

Multiple Causation in Medical Negligence Claims

Multiple Causation in Medical Negligence Claims

Elayoubi v Zipser [2008] NSWCA 335

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

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

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

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

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

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

Recent Win in the Court of Appeal

Recent Win in the Court of Appeal

We are pleased to note that we were recently successful in an important decision before the Court of Appeal.

On 09 August 2013 the Court of Appeal delivered Judgment in Smalley –v- Motor Accidents Authority of NSW1 which will have a significant impact upon the way that motor accident claims are administered in New South Wales.

Background:
The scheme for compensation for personal injuries in New South Wales is governed by the Motor Accident Compensation Act (1999). That Act provides for two ‘streams’ of claims. Where liability (that is the insurer’s obligation to pay for a claim) is admitted, then an insurer is obligated to pay for medical expenses, make an offer of settlement and attend a settlement conference in a timely manner. If those obligations do not lead to a conclusion of the claim then the entitlement to compensation is to be determined by an Assessor appointed by the Motor Accidents Authority of NSW.

In the event that liability is declined, that is the insurer disputes its obligation to pay for a claim, then the claim is to be dealt with by the District Court of NSW.

It has been our more recent experience that some insurers have failed in their obligation to determine liability within three months as required by the legislation which results in the injured Claimant unable to effectively enforce their rights.

Mr Smalley’s Claim:
Mr Smalley was injured in a motor vehicle accident on 16 December 2005. He lodged a claim for compensation with the third party insurer on 14 January 2010, well outside the six-month limit. The insurer requested an explanation for the late claim which was provided by Mr Smalley. The insurer rejected the explanation and denied liability for his claim. That issue was referred to the Motor Accidents Authority for determination, who decided that Mr Smalley had in fact provided a full and satisfactory explanation and that the claim should proceed. Notwithstanding the decision of the Motor Accidents Authority, the insurer continued to deny liability while accepting that its insured driver was at fault in the accident.

Mr Smalley made three applications to have his claim exempted from CARS and the administrative process so that he could proceed to Court and seek a final determination. The difficulty facing Mr Smalley was that he was being asked to proceed firstly through CARS, notwithstanding that the insurer steadfastly refused to accept any determination that was made by CARS, thereby causing him unjust cost and delay.

Judgment of the Court of Appeal:
In a unanimous decision, the Court determined that ‘liability’ means the acceptance by an insurer of its obligation to pay a claim, even though the amount that is required to be paid may be in dispute. As a result, it is now clear that where an insurer disputes its obligation to pay on a claim, a person injured in a motor vehicle accident is entitled to proceed directly to Court.

The administrative scheme (“CARS”) is intended to be a quick, cheap and efficient means to resolve claims. The bargain for the insurer is that if it wishes to take advantage of this scheme, it is obliged to act quickly and comply with the obligations set out in the legislation. As a result of this judgment, an injured party who is aggrieved by an insurer’s failure to comply with its obligations will be able to proceed directly to Court and enjoy the benefits of the Court’s greater and binding authority.

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

Medical Negligence in Allied Health Care

Medical Negligence in Allied Health Care

In 2010, Beilby Poulden Costello was instructed to act for a plaintiff who had a claim against her chiropractor.

She alleged that the treatment that she was given in 2008 was performed negligently and claimed compensation from the chiropractor.

Facts
Our client had a breast augmentation procedure in 2005 during which implants were inserted. She was very happy with the results and had no problems until she met the defendant.

Our client worked in a job that required her to have her head bent down and her neck extended – therefore she suffered occasionally from a sore neck and back. In 2008 she attended a chiropractor. The chiropractor took no medical history and asked no questions about prior surgery. He asked where her pain was, noted that in a chart, performed a couple of manipulations and sent her home.

Later that evening, our client noticed that one of her implants appeared to have been pushed out of place. When she consulted the surgeon who had performed the procedure, he confirmed that the implant was displaced, and that she would need surgery to correct the displacement.

Our client could not afford the surgery, but very much wanted to have her implant corrected. She then decided to seek legal advice about whether the chiropractor was negligent in his treatment of her.

The legal process
Our client got an expert opinion from a chiropractor who stated that her treating chiropractor was negligent in failing to take any sort of medical history from her, and in performing the manipulation he did. Our client filed proceedings in the District Court of New South Wales in 2011, and despite various attempts, was not able to settle the case, and so it proceeded to trial in 2012.

The hearing
This case turned on both expert and lay witness evidence. There was a dispute over which manipulations were performed, and whether they were negligent – this became a case as much about the facts as about the experts.

The plaintiff gave evidence herself and her then husband also gave evidence. This was directly contradicted by evidence the defendant himself gave.

Expert witnesses included a chiropractor for both the plaintiff and the defendant, a plastic surgeon for the defendant, and the plaintiff’s treating plastic surgeon.

The decision
Ultimately, the Court was persuaded that the defendant did not take a proper history, and that he should have. The Court was further persuaded that if he had taken a proper history, he should not have performed the manipulations that he did. The Court found that the defendant performed the manipulations as described by the plaintiff, that the defendant breached his duty of care to the plaintiff and caused her injury, and that compensation should be awarded.

The plaintiff was awarded the full cost of the corrective surgery as recommended by her treating surgeon, and pain and suffering. For pain and suffering, she was deemed to be worth 25% of a most extreme case. Overall she was awarded $51,137.50 in compensation. Additionally, the defendant was ordered to pay all of the plaintiff’s costs from approximately one year before the trial, because the plaintiff had offered to settle her case for an amount less than she was awarded by the Court.

Lasting effects
This case received a lot of publicity at the time of judgment, and it was reported in newspapers around the world.

This case has become a landmark decision in personal injury circles, and is particularly important because of what the plaintiff was given for her pain and suffering.

 

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

Man Falls Down Stairs at Ice Skating Rink

A Gentleman Falls Down Flight of Stairs at Ice-Skating Rink Suffering Serious Injuries

Catholic Club Ltd [2013] NSWDC 93

Falls Down Flight of Stairs at Ice-Skating Rink

Facts
At about 3.45pm on Wednesday 14 January 2009, the plaintiff, Christopher Moor, was injured at the premises of the defendant, Liverpool Catholic Club Ltd. He sustained a fracture to his right ankle after losing his footing, slipping and falling whilst descending a set of stairs. At that time, he was wearing ice skating boots. He was descending the stairs in order to access an ice skating rink on the premises.

Injuries
When the plaintiff fell on the stairs, he suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint.

Expert engineer for the plaintiff
The plaintiff relied upon 3 reports from Mr Ian Burn, a consulting civil engineer. His reports were respectively dated 23 April 2012, 13 September 2012 and 12 November 2012. The most recent report of Mr Burn commented upon a report dated 19 September 2012 from the defendant’s expert, Dr John Cooke, a consultant architect.

On 20 April 2012, Mr Burn had inspected and made measurements of the stairs where the plaintiff had fallen. He observed that including the landing, the seven steps comprised a discrepant pattern of measurements of the goings, or treads and the risers.

Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step.

His Honour Justice Levy SC of the District Court of New South Wales was of the view that:

“When a person of the plaintiff’s height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs.”

Expert engineer for the defendant
The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs.

Conclusions on utility of the expert evidence
His Honour, having considered the respective reports of the Plaintiff’s experts, concluded that Mr Burn’s analysis of the mechanics of the plaintiff’s fall was more reliable when compared to the opinions of Dr Cooke for the defendant.

Whether an obvious risk was present
The defendant pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff.

The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff’s conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council [2008] NSWCA 98, at [27]-[28]; Lalouach v Ibrahim [2011] NSWCA 402, per Giles JA, at [79]. The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at [35], per Giles JA.

His Honour stated firstly that:

“The defendant had not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm”: Lormine Pty Ltd v Xuereb [2006] NSWCA 200, per Mason P, at [31].

Secondly his Honour stated that, the description of the plaintiff’s descent down the stairs and the CCTV footage showing the course of his descent did not demonstrate any unreasonable conduct on the plaintiff’s behalf. His Honour concluded that-

“On the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling.”

Thirdly, his Honour was of the view that, the defendant had not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk.

Whether there was inherent risk
The defendant also pleaded a defence of inherent risk, pursuant to s 5I and s 5K of the CL Act. There is no liability in negligence if the harm complained of is as a result of the materialisation of an inherent risk: s 5I(1) of the CL Act.

An inherent risk is defined as an occurrence that cannot be avoided with the exercise of reasonable care and skill: s 5I(2) of the CL Act. The exclusionary effect of s 5I does not operate where there is a duty to warn of the existence of a risk: s 5I(3) of the CL Act.

His Honour was of the view that the plaintiff was entitled to a warning that the stairs had incorporated within their structure of the treads, goings and risers, an uneven pattern of lineal and vertical dimensions. Similarly, the plaintiff was also entitled to a warning that the nosing edges of the stairs were slippery when wet in the moist conditions that were evident at the ice rink premises.

His Honour further stated that, the actions involved in descending the stairs wearing skate boots, as distinct from ice skating, did not constitute a dangerous recreational activity within the meaning of s 5K of the CL Act.

Duty of care and scope of that duty
The plaintiff claimed that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (198) 162 CLR 479, at pp 487 to 488, [11] to [12].

The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [26]. Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant’s patrons.

Causation
His Honour was of the view that, it was appropriate on the facts of the case, to apply the simple “but for” test of factual causation required by s 5D of the CL Act. His Honour consider that it was more probable than not, that the plaintiff’s injury would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness. His Honour was also satisfied that it was unlikely the plaintiff would have sustained the injury he did if the instructed and supervised practice at the ice rink was to ensure patrons refrained from putting on their ice skating boots until after they had descended the stairs in question: Strong v Woolworths [2012] HCA 5, at [18] to [20].

Conclusions on negligence and causation
His Honour concluded that the defendant was negligent as alleged, and that such negligence was the cause of the plaintiff’s injury.

Orders

  1. Verdict and judgment for the plaintiff in the amount of $148,343;
  2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
  3. The exhibits may be returned;
  4. Liberty to apply on 7 days notice if further orders are required.

 

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

Armed robbery – Broken Hill

Police are appealing for the public to help with identifying men, who may be able to assist police with inquiries, following an armed robbery at a shop in Broken Hill.

About 10.30pm on Thursday 26 January 2012, two men, one armed with a shotgun, entered the office area of a shop on Brookfield Avenue.

The business was closed at the time and a 60-year-old man was counting money in the office.

The men threatened the 60-year-old man before assaulting him with the shotgun.

They took an amount of money before leaving the premises.

Police from Broken Hill Police Station attended the premises and established a crime scene, which was examined by forensic specialists.

Ambulance Paramedics treated the man at the scene.

The first man, who was carrying a firearm at the time of the robbery, has been described to police as being of large build. He was last seen wearing dark clothing.

The second man is of skinny build and was last seen wearing dark clothing. He was also carrying a duffel bag.

BPC Lawyers has had a number of successful claims recently acting on behalf of the victims of robberies. If you would like further information, please contact BPC Lawyers on 1800 300 272. 

Source: NSW Police Force, Media Archive

Patient Has Buttocks Injected With Flat-tire Sealant, Cement And Mineral Oil By Fake Doctor

In a “cosmetic surgery” procedure, a woman’s buttocks were filled with flat-tire sealant, mineral oil and cement, and then sealed with super-glue by an apparently transgender woman, Oneal Ron Morris, claiming to be a doctor – Morris had never studied medicine. The victim had sought a curvier body and a larger bottom in her quest to find employment at a nightclub.

The fake doctor, who was born a man and identifies herself as a woman, according to police authorities, was arrested last Friday. Morris, 30, also performed the buttocks procedure on herself. Police suspect there may be other victims.

The victim, who was referred to Morris by an acquaintance, paid $700 dollars for the buttocks-filling injections.

A toxic cocktail was injected into several sites around her buttocks with a type of tube. When the pain became unbearable, Morris reassured the woman that everything was fine.

Morris is alleged to have told her patient:

“Oh don’t worry, you’ll be fine. We just keep injecting you with the stuff and it all works itself out.”

The patient, who remains unnamed, was eventually taken to hospital by her mother. She had been complaining of severe abdominal pain, flu-like symptoms, and infected sores on her buttocks. After some reluctant visits to two South Florida hospitals, she left early because she was too embarrassed to tell doctors what had really happened.

When doctors eventually found out what had occurred, they alerted the Department of Health. The health professionals knew that no sane doctor would ever have performed such a bizarre procedure.

Reports inform that the victim cannot work because of unbearable pain. She has also had to pay out a large amount of money in medical bills.

Morris faces charges of practicing medicine illegally (without a license), and serious bodily injury.

According to police photos, Morris has bee-stung pouty lips, arched eyebrows, and an enormous bottom. Nobody knows whether she has an attorney. She was released from jail on bond.

Article Source: https://www.medicalnewstoday.com/articles/238011.php

Costa talks compo for cruise ship survivors. But who is to blame?

Six Costa Concordia cruise shipwreck survivors file suit in Miami Federal Court seeking $460 million in damages. The lawsuit names Costa Cruises and parent company, Carnival Cruises; lawyer cites ‘stress of disaster’

The lawsuit filed in U.S. Federal Court seeks $460 million in damages and names Costa Cruises and its parent Carnival Corp. Both have offices in South Florida.

The attorney representing the six passengers told The Miami Herald that the stress of the disaster off the Italian coast will never go away.

In another lawsuit filed in Chicago, a crew member seeks class-action status and at least $100 million in damages from Carnival and Costa.

Article Source: NY Daily News

BPC in the News

Many of our clients would have seen our partner, Courtenay Poulden appear on Today Tonight recently. Courtenay was being interviewed following a decision of the Supreme Court which accepted our argument that our client was entitled to substantial compensation as a result of negligent dental treatment.

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Accidental Death Insurance Policy

We recently took an insurer to task who refused to pay in respect of a claim made on an accidental death insurance policy. Our client’s late husband took out an insurance policy which provided for the payment of a specified sum in the event that he died from an accident as a result of physical injuries caused “solely by violent, visible and external means.”

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