Personal Injury

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.

Negligence

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.

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.

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.

Podcast: Play in new window | Download

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.

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Transcript:

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, otherwise known as non-economic loss damages, also do not survive to the estate. There is however an exception in respect of dust diseases. In that case, general damages including damages for loss of expectation of life can be awarded but only if the proceedings for the damages have been filed during the lifetime of the deceased.

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

Scott Hall-Johnston

BPC Lawyers

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

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

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.

Cross-Examination

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]

Conclusion

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.

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)