Personal Injury

gym injuries new issues

Injuries in the Gym – New Issues for the Fitness Industry

The explosions of gyms and fitness centres has had a huge beneficial effect on the community’s fitness and general health.

Every second shop in most neighbourhoods is either a fitness centre or a laser clinic.

With the massive increase in people seeking assistance with their fitness regimes, comes a strong responsibility on the service providers to ensure the safety of participants.

Starting a gym programme is a bit like starting a diet. People tend to go at it like a bull at a gate and require careful management to ensure they do not suffer injury as a result.

One of the primary responsibilities of a fitness instructor is to take a careful history of the participant to determine what type of exercise programme is suitable for them. That obligation extends to ensuring that a history is taken of any prior injuries and any medical conditions such as a heart disorder which may affect the type of activity recommended.

We have been involved in a number of cases where the exercise programme put in place has been wholly unsuitable for the participant with disastrous consequences. A good example is a recent case involving a mature lady who was directed by her trainer to do leg presses at a weight usually reserved for a fit athlete. It had the unfortunate consequence of a serious hip injury.

A further case we have received done involved a lady in her mid-thirties, with a past history of hip and abductor muscle injuries, being required to perform exercises that were inappropriate given her previous history. She suffered a terrible exacerbation of her injury and has been unable to work since.

The less experienced participant, with no background of physical activity, requires an instructor to make sure proper warm-up and warm-down routines are used, and to ensure the participants progress is staged carefully to avoid unnecessary injuries.

Other gym cases which we have been involved have related to poorly serviced and maintained equipment, and unsafe gymnasium premises. There are standards and protocols which apply to the inspection and maintenance of gym equipment and it is incumbent upon fitness centres to ensure they have sufficient staff to carry out regular inspections and to ensure the gymnasium area is free of danger, such as water spillages and unsafe floor surfaces.

Most gymnasiums and fitness centres employer staff, and in addition have some contracted fitness instructors who use the facilities to conduct private classes. There is often an issue as to who is responsible in those circumstances and whether or not a private instructor would have to rely on her/his own insurance, or whether they may be covered by the fitness centre’s insurance. These are issues we regularly have to deal with.

If you have suffered an injury in a gymnasium or as part of a fitness programme, and you consider the operator may have been negligent, then you should contact us to discuss and find out whether or not you have any rights to compensation as a result.

Contributory Negligence

What is Contributory Negligence in a Personal Injury Claim?

If you are the victim of an accident and make a claim for compensation against another party, ‘contributory negligence’ is the law’s way of describing whether your own actions played a role at all in causing the injury you sustained. Essentially, the defendant accused of negligence can in turn claim that your negligence contributed to that injury, thereby attempting to reduce the damages you might be able to claim from the negligent party. This is different to saying that you had, for example, a pre-existing condition which predisposed you to the accident-related injury; that would not affect fault. It’s negligence on your part that they have to prove, that is, some failure to have regard for your own safety.

To bring a claim in negligence, you must prove that your injury was the result of the defendant’s actions. For a defendant, the burden of proof falls on them to establish contributory negligence ‘on the balance of probabilities’ (meaning something is more likely than not).

Types of contributory negligence

There are generally two types of contributory negligence that can arise:

  • matters regarding the circumstances of the accident;
  • matters regarding the extent and nature of the injury/ies suffered by the claimant/plaintiff.

Some circumstances invoke a strict obligation on the relevant court or tribunal to make a finding of contributory negligence against the injured person, for example, failing to wear a seatbelt.

Example of contributory negligence

To provide an example of contributory negligence, a common scenario is that of a pedestrian crossing a road before checking to see that there are no cars coming. The pedestrian is then hit by a car and files a compensation claim against the driver of the car. The driver, or their Compulsory Third Party Insurance (CTP insurer), can then claim that the pedestrian had stepped out onto the road in front of them and there was no way of avoiding the collision. By proving this, the driver can prove that the pedestrian was contributorily negligent.

The importance of the facts surrounding the accident are absolutely crucial, as these can determine the success or failure of a claim. No situation is ever the same, therefore the facts need to be carefully considered. For example, the defendant in the scenario above might state that the fault belongs entirely to the pedestrian, whereas the pedestrian might argue that although he was at fault for attempting to cross the road without first looking, there was sufficient amount of time for the driver to avoid the collision. Perhaps the driver was speeding? Perhaps the driver was distracted by his mobile phone? The scenarios are endless, which demonstrates why each fact needs to be carefully considered in a negligence/contributory negligence claim.

Negligence in NSW and amounts of available compensation

The approach the court uses to determine contributory negligence in negligence situations is expressed as percentages. To provide an example of this by using the scenario above, the court might distribute equal responsibility between the driver and the pedestrian, therefore stating that each party contributed to the accident by 50%. The amount of compensation the claimant would otherwise have been entitled to is then reduced by 50%.

In this way, you can win a claim and still be found contributorily negligent. If you are found 100% contributorily negligent, you have for most intents and purposes lost the case.

Intoxication and criminal activity

A scenario where the injured person was also intoxicated or involved in a criminal activity at the time of the accident is governed by specific rules.

With intoxication, it is stated in the Civil Liability Act 2002 (NSW) that if a plaintiff is found to be intoxicated at the time that the accident occurred, the plaintiff is adjudged to have contributed to their own injuries and the compensation available to them will be decreased by a total of 25%. Similarly, in scenarios involving both intoxication and a motor vehicle, the available compensation is reduced by 50% instead of 25%.

With criminal activity, it is up to the discretion of the court as to whether they decide to award any damages at all to the plaintiff, if he or she sustained an injury while participating in illegal or criminal activity. If it is felt that this is too unfair, they may choose to award a smaller amount of compensation.


If you’ve been involved in an accident, seek legal advice. A legal professional, who has had exposure to a variety of factual circumstances and judges’ decisions, will be able to help you determine whether you are entitled to claim compensation and whether the amount might be reduced because of contributory negligence on your behalf.

types of personal injury compensation

What Types of Personal Injury Qualify for Compensation?

Over recent years, the number of Australian citizens who find themselves seeking hospitalisation for personal injury has been steadily rising. In fact, the Australian Institute of Health and Welfare reports that the number of hospital visits has increased over the past few decades. Likewise, personal injury claims have risen, making it imperative that everyone have a basic understanding of what personal injury law will cover and how to file a claim. If you or a loved one have suffered serious harm from the wrongful or negligent actions of another, you may be able to receive compensation through a personal injury claim.

Types of personal injury claims: Personal injury claims are the most commonly handled compensation claim and they cover a wide variety of accidents ranging from motor vehicle injuries, public slip and falls, negligence, on-the-job injuries, and more.

  1. Motor vehicle: Extremely common, personal injury claims arising from motor vehicle accidents happen daily. These claims involve all manner of vehicles, including cars, buses, trucks, motorcycles, mopeds, and may involve drivers, passengers, or pedestrians. When involved in a motor vehicle accident, you should contact the police, report to your insurance agency, and seek medical attention right away in order to best support both your claim and your health moving forward.
  2. Workers’ compensation: Provided to employees, workers’ compensation exists to protect workers from hazards in the workplace and prevent employer negligence by maintaining safety practices. You may be able to receive workers’ compensation if you are injured in the course of your employment or whilst present on the work site. It is important to remember that you are free to file a workers’ compensation claim without fear of reprisal, as that is a right secured to you by law. You should note that workers are able to file claims for immediate injuries as well as long term injuries including: diseases, aggravated pre-existing conditions, injuries sustained whilst travelling for work, and injuries sustained whilst receiving treatment for another work injury.
  3. Medical negligence: Often a source of very serious injuries, medical negligence occurs when a medical professional fails to act with the same level of care a reasonable medical professional would under the same circumstances. Because of the high level of training they receive and the importance of their profession, medical practitioners are held to a higher standard of care than the average citizen. Misdiagnosis, failing to appropriately inform a patient of potential risks, incorrectly prescribing medicine, incorrectly performing a procedure, and incorrectly interpreting medical results can all give rise to a claim for medical negligence.
  4. Public liability: A broad area of personal injury law, public liability covers a range of injuries. From slip-and-falls at the supermarket to psychological injuries, you may have the foundation of a claim if your injury was caused by the negligence of another. If the owner or proprietor of a public space has failed to expend the right amount of care to protect the safety of their customers, they will likely be held responsible.

Most important to know is that there are strict time limits to bring any type of claim, ranging from 28 days to three years.

If you or someone you know has any questions regarding a recent injury or possible personal injury claim, please do not hesitate to contact our Compensation Lawyers Sydney today. They will have the experience, training and legal savvy to advocate for you and ensure you receive the compensation you deserve.

Gym Injuries & Compensation Claims

Gym Injuries and Compensation Claims

Before we know it, summer will be fast approaching and many of us will be wanting to shed a few kilograms acquired over the winter break by signing up for yet another gym membership. With this, every year, there is a significant spike in injuries being sustained at the gym and hence an awareness of your rights in the event of an accident, as well as what waivers may be included in the contract you signed in order to join the gym in the first place, is important to know.

Recent Events

Earlier this year, a gym made headlines when a fifteen-year-old boy was killed in an accident on the premises. Unsupervised, he was stuck underneath a 98-kilogram bar and remained that way for, what paramedics estimated to be, about half an hour before he was discovered. It was found that not only was the gym negligent in enforcing its supervision policy for gym members under the age of 16, but the staff was negligent in basic supervision as the injured patron had been undiscovered and incapacitated for so long.

After remaining on life support for a while, the boy’s family opted to turn it off and say goodbye to their child. Unfortunately, the accident could have been avoided by the basic fulfilment of gym policy and mitigated by someone finding the incapacitated teen sooner.

Personal Trainers and Liability

Many gyms hire personal trainers as contracted employees/“contractors” in order to reduce their own liability. Sometimes, this can make it more difficult for a client who is injured to seek legal remedy. In general, gym owners and personal trainers alike are considered to owe clients a duty of care. For the gym, they must take reasonable care in hiring the personal trainer (background checks, certifications, check with other employers, etc.). For personal trainers, they must take reasonable care that the exercise regime recommended by them to the client will not cause them harm.

It is important that if you are injured through a relationship with a personal trainer, you discuss your case with a lawyer to explore your claim options. In some cases, you will be able to bring a claim against both the gym and the trainer, whereas other times you will only be able to bring a claim against one or the other.

Liability Waivers & Gym Contracts

Everyone knows that signing a gym contract is a necessity for joining any gym, from the biggest 24 hours establishments to small boutique workout classes, all require a commitment. In this commitment, a liability waiver is often included. While courts are not strictly required to uphold the waivers in gym contracts (particularly unconscionable contracts that overly favour the gym’s interests), it is up to their discretion to decide how much of the gym’s liability you’ve agreed to waive. In general, if you were injured due to your own improper use of equipment, then your case will be weaker, whereas if you are injured due to faulty equipment, your claim will be stronger.


If you are trying to file a claim against a gym, it is likely that you will be filing a claim of negligence. Australian law states that negligence is: “the failure to take reasonable care to avoid causing an injury to another person.” To prove this, you are required to demonstrate four things. First, that you were owed a duty of care. Secondly, that the defendant (the gym in this instance) breached that duty of care, either through failure to act or incorrect act. Third you must demonstrate that your injury or loss was foreseeable by a reasonable person in the defendant’s position. And finally, that your injury or loss was caused by the defendant’s breach of duty.

If you or a loved one have experienced an injury at a gym or because of a personal trainer, contact a lawyer as soon as possible. They will be able to examine your contract, discuss your case, and advise you about your potential claims.

Injured While Volunteering

Injured While Volunteering? Can You Receive Compensation?

Everyone knows that if you are injured whilst at work you are entitled to compensation to help offset the costs of your injuries.  Likewise, if you were injured due to the fault of an occupier, business owner or other entity you can make a public liability claim.

However, where do you stand if you are one of the growing tens of thousands of people in Australia who undertake some form of volunteer work?

What is a Volunteer?

A volunteer is generally defined as a person who provides services for a charity or other entity for free.  Volunteers may sometimes receive some reward for their efforts in the form of costs for travel, food or other modest benefits.

Workers Versus Volunteers

Generally, volunteers are not protected by the workers compensation legislation and cannot claim workers compensation when they are injured.  There are however often deeming provisions of the legislation that protect volunteers and entitle them to claim workers compensation.

Quite often the organisation that is being assisted will take out an accident policy which will provide for payment of medical expenses and limited other benefits when injury occurs.

Duty of Care Owed to Volunteers

The organisation that is being assisted by the volunteer owes to the volunteer a duty to ensure that reasonable steps are taken to prevent injury.  A breach of that duty may give rise to an entitlement to damages.

The Work Health & Safety Act 2011 (NSW) extends to someone who “carries out work in any capacity for a person conducting a business or undertaking”, which of course includes volunteers (s.7).  Also in New South Wales, the Workplace Injury Management and Workers Compensation Act 1998 Schedule 1 deems some volunteers to be workers.

Volunteer organisations have a responsibility to ensure the health and safety of all people who enter their premises.  If the workers compensation legislation does not apply then the organisation’s public liability insurer will cover the organisation for the compensation payable as a result of a breach of that duty.  The extent of the duty owed by the organisation will be dependent upon the nature of the environment, the type of work that is being performed and the general level of risk that the volunteer is exposed to.

Australian Work Health and Safety Act

Relevant workplace health and safety legislation in Australia does, in fact, recognise volunteers as workers and will protect the physical and mental health of a volunteer in the same way that it would protect a registered employee, and most organisations are covered under the legislation.  Consequently, both the organisation and the volunteer benefit; the volunteers are covered in the unfortunate event that they are injured in the course of business and the organisation is protected if they in some way contribute to the injury of an employee or volunteer.

Contact a Lawyer Today

Volunteers are a vital part of any economy and they deserve to have the same protections as regularly employed individuals.  Luckily, there is compensation available for volunteers who are injured in the course of their duties in Australia.  If you have been injured in your capacity as a volunteer, strict time limits apply to these matters.  Contact our Compensation Lawyers Sydney at BPC Lawyers today.


how to find a personal Injury lawyer

How to Best Choose a Personal Injury Lawyer to Handle Your Claim

Life is unpredictable and unexpected injuries can occur resulting in the need to engage a personal injury lawyer. Retaining a personal injury lawyer is an extremely important decision which often needs to be made in very stressful circumstances.

Most personal injury lawyers in New South Wales offer a free initial consultation for prospective clients in order to discuss potential claims. This is an opportunity to meet in person so that the lawyer can advise whether or not you have a viable claim and you can decide whether or not you feel comfortable and confident with the lawyer and wish to retain their services.

It is imperative that you retain a lawyer who is right for you and your specific claim. Different lawyers have their own unique styles and methods of practice however it is important that a client feels confident in the abilities of their legal representatives and comfortable contacting the lawyer to discuss the claim as it progresses and to provide instructions along the way.

It is a good idea to research the lawyer’s reputation and current personal injury experience. It is important that the lawyer has recognised experience dealing with insurers and defendant’s lawyers and resolving personal injury claims. It is also prudent to consult a lawyer as soon as possible as there are time limits governing personal injury claims.

The common law and legislation governing personal injury claims is constantly evolving. It is important to engage a lawyer with up to date specialist expertise and knowledge in the specific area of personal injury litigation. There is a significant advantage in retaining a lawyer who is an accredited specialist in personal injury law certified by the Law Society of New South Wales. Gaining accreditation through the Law Society of New South Wales offers legal practitioners a recognised means of differentiation with certified expertise in specialised areas of law. Specialist accreditation also assists members of the public and the legal profession identify solicitors who have expertise in a particular area of law such as personal injury law. It is prudent for a client to retain a legal practitioner who is an accredited specialist in personal injury law on the same basis that a patient would inevitably consult a specialist rather than a general practitioner in relation to complex medical issues and treatment options.

Preparation prior to the initial consultation is also extremely beneficial. In addition to having relevant documentation and information available for review by your prospective lawyer, it is a good idea to prepare a list of questions to take with you to the first meeting. Examples of questions that you may wish to ask your prospective personal injury lawyer are as follows:-

  1. How many personal injury cases in this particular area of law has the lawyer handled?
  2. What percentage of the lawyer’s practice is in this particular area of personal injury law?
  3. How long has the lawyer been in practice and/or been a recognised accredited specialist in personal injury law?
  4. Will the lawyer handle the case personally or will it be passed on to other legal practitioners or support staff within the firm?
  5. If other lawyers or staff will be performing work on the file, is it possible for you to meet them?
  6. What issues does the lawyer identify in relation to your particular claim?
  7. How long is it anticipated that your case is likely to take?
  8. What type of experts does the lawyer intend to engage to obtain expert evidence in support of your claim?
  9. You should also ask about legal costs as personal injury lawyers are required to disclose information about how they charge and provide a costs agreement to prospective clients.

If you or a loved one has suffered injuries in compensable circumstances, you need an experienced personal injury lawyer with specialist expertise and knowledge of the laws governing the particular claim. It is not wise to engage the first law firm you see advertised on television or a billboard. A better strategy is to ask family, friends or lawyers who practice in other areas for personal recommendations. You may also conduct online searches using keywords that describe your specific claim such as “personal injury lawyers NSW”, “medical negligence lawyers NSW”, “motor vehicle accident lawyers NSW” however personal recommendations are generally the most reliable source of referral.

BPC lawyers are a boutique law firm who specialise exclusively in personal injury claims for plaintiffs. All of our partners are accredited specialists in personal injury law certified by the Law Society of New South Wales. We pride ourselves on providing a personal level of service to ensure a good working relationship with each of our clients. Many of our clients are in vulnerable situations due to their injuries and having a lawyer who is familiar with their file and who is friendly and approachable as the claim progresses removes a lot of the stress associated with litigation.

Feel free to take advantage of our no obligation initial consultation to investigate your potential personal injury claim. At BPC Lawyers, we don’t promise the world only to send your case to a junior lawyer. Your case will be managed by a partner, ensuring you get the best level of service, support and results. We take pride in being the lawyers who other lawyers trust. BPC Lawyers have specialised in compensation claims for plaintiffs for over 30 years, ensuring our clients receive the compensation they deserve.

medical assessments for personal injury

What You Need to Know About Your Personal Injury Medical Assessments

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


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



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



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



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



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



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



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


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



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



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


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



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



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



Scott, thanks for joining me.



That’s a pleasure. Have a good day.



what to bring to first appointment

What to Bring to Your First Personal Injury Appointment

For many of us, the thought of seeing a lawyer can be overwhelming, but there are some things that you can do, particularly at that first consultation that will not only alleviate the stress but also ensure that your first meeting with your lawyer is productive.

In this podcast, Kate Henderson, an Accredited Personal Injury Specialist and a Multi-Award Winning Lawyer discusses the topic.




Kate, this can often be a stressful occasion for clients. What can they do to ease their stress?



The more information that a client can bring to the initial appointment the better so that the lawyer can understand the issues. A little bit of preparation and gathering documents always helps.



And, Kate, is there any specific that is really useful for the person to bring to that first consultation?



We need to have details of the accident, or the circumstances surrounding the injury, so the first bit of evidence, for example in a motor vehicle accident, that is always good is if there’s a police report. If the client can gather the police report, or at least have the police event reference so that we can obtain that document ourselves. Or, if it’s not a police matter but there’s been an injury on property, a incident report that will have details of what’s happened in a contemporaneous record with date and time, and circumstances, and any witnesses. That’s really the most important document to bring so that we know precisely what’s happened, what’s been recorded, and we can identify any witnesses and be able to contact them. That’s focusing on liability. The other thing that we need is details of medical providers. So, if a client can bring details of names and addresses of all their treating doctors we can then have the client sign medical authorities and we can obtain the relevant medical records.


That said, some clients are very overwhelmed by what’s happened to them, so we do understand that sometimes a client just isn’t in a position to gather that material. We can certainly do it, it just means that the process sometimes takes a little bit longer. But there’s no need to be stressed leading up to that appointment. We see clients on a no-obligation basis, so if they come in and they prepare a list of questions and things that they need to get their head around, that’s always good. It helps the professional relationship moving forward if both parties are comfortable with each other and know exactly what’s needed.



Kate, what if they want to bring a support person? Is that completely okay as well?



Absolutely. It’s sometimes a good idea to bring a support person because there’s normally a lot of information to digest and sometimes it helps to have somebody else that’s been present. We’ll always confirm things in writing though. Sometimes matters can be quite personal and people would prefer to keep those matters to themselves, so that’s fine. It’s really a matter of individual choice. So, if a client wants to just come alone that’s totally fine as well, and we’ll always confirm what’s been discussed in writing, and what’s required moving forward. But if a client likes to have another family member, or friend, or some other emotional support that’s absolutely fine as well.



Kate, thanks for joining me.



You’re welcome.



That’s Kate Henderson, an accredited personal injury law specialist. Now, certainly the take-home message for listeners who may have suffered an injury is that, while it’s useful to have information of that first consultation with your lawyer, if you haven’t any don’t feel discouraged, as many people in these circumstances often don’t bring anything with them to that first meeting.




Personal Injury Motor Accident Claims

Personal Injury Update

Recent Compensation Case

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

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

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

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

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

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

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

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

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

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

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

Compensation Lawyers Sydney at BPC Lawyers, we are able to assist our clients in regard to any application for judicial review and will ensure any application to the Supreme Court has good prospects for success.

Can your Personal Injury Claim continue after you die?

Can your Personal Injury Claim continue after you die?

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

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

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

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

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

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

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

Scott Hall-Johnston

BPC Lawyers

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

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

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

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

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

Late making of claims

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

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

S.73(1) provides:

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

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

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

Full explanation

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

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

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

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

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

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

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

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

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

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

Scott Hall-Johnston

BPC Lawyers

How do Insurers Investigate Claims

How do Insurers Investigate Claims

Important issues in personal injury claims will frequently hinge on the evaluation of a claimant’s credibility and there are various tools available to insurers to identify any inconsistencies between allegations and fact.

The key tools available to Insurers are subpoenae to produce documents, surveillance, independent medical examinations and cross-examination. Attacks on credibility can be defended by lawyers but are best guarded against by claimants being truthful in the conduct of their claims.

Any claim within the jurisdiction of the courts is likely to invoke the use of subpoenae – on, for example, employers and doctors – for the purpose of bringing to light the true circumstances surrounding a claimant’s earnings, medical history, contemporaneity of complaints and so on. An experienced lawyer will advise their client of this possibility at the commencement of proceedings. This article will look at the level of threat and effectiveness of defending attacks on credibility.


Surveillance evidence can be the most cutting tactic used by insurers to devalue a claim. Naturally, obtaining proof of a claimant’s residual or post-injury abilities, if kept in context, can be compelling evidence. Once obtained, the insurer can maximise the weight of that evidence by admitting it without notice to the claimant when it has the best chance of contrasting with the claimant’s allegations.

The Uniform Civil Procedure Rules do provide that surveillance to be relied on must be served on the other party to proceedings at least 7 days before the commencement of a hearing. The UCPR goes on to state that a party who fails to comply with that provision ‘may not tender the plan, photograph, audio-visual recording or model in evidence except … by leave of the court’.[1]

Clearly, the rule permits a judge to exercise his or her discretion in permitting the evidence admissible. Mid-hearing, it would be a matter for counsel for the claimant to argue that the prejudice to the claimant outweighs the probative value of the footage.[2] The insurer’s typical reaction to this argument is that the claimant’s initial reaction to surveillance footage holds greater value than a prepared reaction.

It should be noted that we can expect an increase in the service of evidence collected from social media sites. There is limited Australian case law on this issue presently but what little case law does exist indicates that similar rules apply as with surveillance footage with the added requirement that the authenticity of the site must be established.[3]

[1] Uniform Civil Procedure Rules 2005 (NSW) r 31.10.

[2] Evidence Act 1995 (Cth) s 135.

[3] Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268; Condon-Nixon v Rivers [2012] FamCA.

In Azar v Kathirgamalingan [2011] NSWDC 56, the insurer took thorough steps to attempt to have surveillance video admitted into evidence at the hearing and not prior. That case involved a claim for psychiatric injury. The insurer brought a Notice of Motion disclosing the existence of surveillance video but not disclosing its contents. It sought the following:

  • leave be granted under Rule 31.10(2) of the UCPR to show the surveillance evidence to the plaintiff in cross examination and to use and tender it at the hearing;
  • the defendant be excused from compliance with Rule 31.10(1) in respect of the surveillance evidence; and
  • the defendant have leave to show the film to his experts and not be required to serve supplementary reports dealing with the film until after cross examination.

Truss DCJ applied the precedent principle that ‘[t]he reasonable entitlement of a defendant to preserve pre-trial confidentiality and the results of its investigations, in the face of suspected fraud, remains a legitimate interest[1] and permitted the future admissibility of the footage without prior service on the claimant. Her Honour, with reference to Section 58 of the Civil Procedure Act 2005 (NSW), did not, however, permit the admissibility of supplementary experts’ reports commenting on that footage on the basis that this would unfairly disadvantage the plaintiff.

This course permitting admissibility of footage without prior inspection was again adopted in Josephine Williams v Lansdowne Partners Pty Ltd t/as 202 Broadway [2013] NSWDC 154, [129]. That case involved issues of credit regarding the level of disuse of the claimant’s left hand as a result of physical injuries sustained in a slip and fall.

These judgments of the District Court may not hold much weight in terms of precedent, but certainly indicate that, in light of the Court’s inclination to take issues of credibility seriously, the only sure way of guarding against unwanted surveillance footage is for neither claimant nor lawyer to overemphasise an injured person’s disabilities.

Medical Assessment

On 5 July 2016 a decision was handed down by the Court of Appeal in the matter of Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156. This case principally dealt with a claimant’s eligibility under the Lifetime Care and Support Scheme. The claimant had an interest in being found ineligible and the insurer appealed the decision of the Review Panel that he was so. The insurer submitted that three of the criteria used by the Panel to determine the claimant’s eligibility (self-care, communication and social cognition) were determined largely on the history the plaintiff provided and that as a consequence, the Panel ought to have made determinations as to the claimant’s credibility alongside its decision.

Of relevance was the fact that the claimant had an interest in being found ineligible for participation in the Scheme and there appeared to have been an improvement in the claimant’s condition prior to the assessment. In brief, the Court of Appeal repeated precedent and concluded that ‘the obligation of the Review Panel was to give reasons for its own findings; it was not required to explain why it did not accept findings made by others’.[2]

In this way claimants were given some protection by the courts in circumstances where it serves no purpose to question a claimant’s medical history if there can be no objective evidence capable of supporting or disputing that history.


A less recent decision, in Allianz Australia Insurance Ltd v Harrison [2013] NSWSC 1186, addressed the extent to which an insurer is permitted to rely on elements of a claim which are withdrawn.

Prior to her CARS Assessment Conference, the claimant withdrew her claims for economic loss and past commercial care, the inference being that no documentation or witnesses in support of these claims existed. During the Assessment Conference the insurer was precluded from asking questions of the claimant about the abandoned claim but was permitted to make submissions on the claimant’s credibility based on the above inference. The insurer appealed the award on the basis that it was denied procedural fairness.

Hoeben J held that the insurer’s line of questioning was, if desired, a necessary facet of the insurer’s ability to present its case fairly.[3]


These illustrations demonstrate that, depending on the circumstances and the balance of probability and prejudice, issues regarding the protection of a claimant’s credibility can easily be decided in both ways. The interests of injured persons are always best protected by presentation of symptoms and relevant histories in a transparent fashion.

[1] Halpin and Ors v Lumley General Insurance Ltd [2009] NSWCA 372, [317].

[2] Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156, [53]; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[3] Zurich Australia Insurance Ltd v Motor Accidents Authority of New South Wales and Ors [2010] NSWSC 214.

Personal Injury Claims – which Court?

Personal Injury Claims – which Court?

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There are so many avenues in which legal redress can be sought and obtained.

There are certainly a lot of technical or procedural pitfalls which, to the untrained eye, could seriously curtain your right to claim compensation.

Compensation Law – Which Court?

General Rule

Historically, Courts have maintained the mantle of justice, charged with providing justice, as best as money can do it[1], for a loss that you have suffered to your person.[2]

However, a new dawn has awakened. What is becoming so readily apparent is the do we see the role being passed to administrative bodies like the Motor Accidents Authority (now called SIRA / State Insurance Regulatory Authority) where a motor vehicle accident is involved and WorkCover where an accident happens at work. The purpose of such a change was to make things quicker, keeping lawyers on their toes and achieve a result quickly and cheaply whilst above all, maintaining and preserving just outcomes.[3]

You may have heard of the Local, District and Supreme Court and wondered what determines which Court should hear my case? The answer is normally answered by looking at the amount you are claiming and/or the type of dispute you have.

Normally[4] for a claim for personal injuries, the Court which would be able to hear your case will depend on the amount claimed;

a/ $10,000 or less[5] – the Local Court Small Claims Division,

b/ Between $10,001 and $60,000[6] – The Local Court, General Division,

c/ Between $60,001 and $750,000[7] – The District Court, and

d/ From $751,000 – the Supreme Court of New South Wales.

There are exceptions to this general rule.[8] Take motor accident claims as an example. The District Court[9] can hear claims (which are able to go to Court in any amount), with no monetary limitation.

Compared with other personal injury cases, the sealing of $750,000 can only be extended:

[1] Robinson v Harman [1848] All ER Rep 383

[2] Paras 13–14 Dixon J in Lee Transport Co Ltd v Watson (1940) 64 CLR 1

[3] See para 7-0000 of Civil Trials Bench Book, Judicial Commission of New South Wales, June 2007

[4] See the comments of Gibson DCJ in McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11. Here Judgment was given for $700.00 in the District Court. Costs were awarded.

[5] Section 29 (1) (b) Local Court Act 2007 (NSW)

[6] Section 29 (2) Local Court Act 2007 (NSW)

[7] Section 4 District Court Act 1973 (NSW)

[8] For example, where Section 44 of the District Court Act 1973 (NSW) does confer jurisdiction, it does NOT state that such jurisdiction is exclusive and exclusionary to all other jurisdictions, which, for the kind of case or circumstance of complexity may justify initiating in another Court.

[9] See Section 44 (1) (d) of the District Court Act 1973 (NSW)

a. By consent of the parties[1], or

b. If no objection is provided from 3 months from trial.[2]

Let’s take a look at a few examples to illustrate this:

Motor Accident Claims

If you have suffered injuries because of someone’s negligence involving (e.g. driving) a car then this process will likely apply to your claim.

Generally, if the insurer admits that their insured person is at fault, most disputes will be referred to a Motor Accident Claim Assessment Service for determination. For example if you have suffered injuries in a motor accident in Sydney when walking along a pedestrian crossing and the insurer has admitted that their insurer was at fault but denies you’re injured, then that dispute (as to your pain, suffering and loss) will be determined by the Motor Accident Assessment Service.

However, if the insurer alleges that their insured did not do anything wrong or denies you claim on ‘liability’ grounds, then usually, your claim will go to the District Court of New South Wales, before a Judge for hearing.

The latter of the two is much more formal.

Small Claims – example of pitfalls

Many small debts are brought in this jurisdiction.[3]

The general rule is that the Court cannot award an unsuccessful party to pay the legal costs and disbursements of a successful party.[4] This could be a significant amount of unrecoverable expenses to which you could be stuck with! This is even so for situations where the insurer is being unreasonable for which you would normally be able to obtain an indemnity costs order.[5]

There is some relief with certain types of claims having fixed amounts of costs etc. to which can be recovered from the Defendant[6], but they are very slim picking compared to the likely costs incurred.[7]

Every case is different and it is certainly recommended that you seek legal advice as soon as practicable. To that end, our office has an incredible amount of experience in motor accident claims and would certainly encourage you to contact our office if you’re seeking an motor accident lawyer in Sydney.

3 August 2016

[1] Section 51 (2) (a) District Court Act 1973 (NSW)

[2] Section 51 (2) (b) District Court Act 1973 (NSW)

[3] For example, Scott v Burrett (2013) NSWLC 45

[4] Section 37 Local Court Act 2007 (NSW)

[5] Paras 29, 41 and 42; Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287

[6] Regulation 2.9 Local Court Rules 2009 (NSW)

[7] For examples, Schedule 1 of the Legal Profession Uniform Law Application Regulations 2015 (NSW)

Understanding Medico-Legal Examinations

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

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