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Nearly all claims for injury are governed by strict time limits. These time limits vary depending on the type of claim you have. It is important that you act quickly to ensure that your rights are not lost.

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Can You Still Make a Compensation Claim Years After You’ve Been Injured at Work?

In this podcast, personal injury lawyer, Tim Driscoll discusses the possibility of making a worker’s compensation claim even years after the accident had happened.

New Speaker

You’re listening to a BPC podcast.

Dan:

Every year, thousands of Australians are injured at work through no fault of their own. The good news is that a majority seek legal help to recover compensation for any economic loss and medical expenses that they may have incurred as a result of the accident. Sadly, there are those that choose not to act, only to find out years later that the injury sustained is now having an impact. In this context, is such a person able to claim compensation years after the event? Well, I’m with Tim Driscoll, a personal injury lawyer from BPC Lawyers. Tim, what’s the answer for these people in this circumstance?

Tim Driscoll:

Well, yes, there is a very limited time period in which people must make a claim for compensation, particularly in workers’ compensation in New South Wales. For most workers, they have a period of only six months from the date of injury to actually lodge a claim for compensation. Now, there are some exceptions, however, and those exceptions apply for people who have what’s called a legitimate excuse for not bringing that claim within six months. Those exceptions effectively are about a person who was ignorant, or mistaken, or was outside of New South Wales, or for some other similar excuse, but still were able to make their claim within three years of the accident, but there’s some more joy for those people who make a, who have a claim for injury, which, for an injury which is substantial or has suffered what is called a serious and permanent disablement. For those people, they’re able to bring that claim outside of that three-year period, but it is a very unusual situation that the courts will grant any further leave above that last provision there.

Dan:

Tim, what about if, say, a worker is under the age of 18 at the time of the accident? Does that change anything?

Tim Driscoll:

Not really, not for workers’ compensation benefits. There are other jurisdictions where the age of the particular applicant may very well change that situation, but most people who have a work-related injury ordinarily are either apprentices, or those who are, obviously, over the age of 18. If they are, however, having some form of incapacity because of their age or what not, then they may be able to apply for some compensation outside of that six-month period for those issues, for those exceptions that I provided for, including ignorance, mistake, and so forth.

Dan:

Tim, what would be an example of ignorance or mistake?

Tim Driscoll:

Well, ignorance, I suppose, for example, if an injured worker was of the view held by, for example, a general practitioner or their employer that they didn’t have to make a claim within a certain period of time, or perhaps they’ve never made a claim for compensation before and thought that their rights were otherwise protected by some other means of compensation, then that kind of ignorance or mistake would most certainly see a higher degree of probability that they’ll overcome that six-month period restriction.

Dan:

Tim, I’m assuming that these applications, can be quite problematic, but I’m also assuming that to run one of these matters could also be problematic as well, given that, say, for example, an injured worker might have incurred the injuries 10 years previously, but yet in the duration of that time, there may well have been other injuries or antagonising factors that have also impacted upon that person’s ability or inability to continue to do work.

Tim Driscoll:

Absolutely, and the workers’ compensation legislation is very complex, and it certainly, when applying it to those very complex factual situations, means that injury workers should certainly seek some legal advice very quickly, because obviously, lawyers who are within workers’ compensation area of law, we’ve seen it all, and we know what to do and what issues come up within the Commission and how to deal with them appropriately.

Dan:

Tim, thanks for joining me.

Tim Driscoll:

Thank you very much.

New Speaker:

Thank you for listening. If you have any questions, please call BPC on 028 280-6900.

Social Media and Your Injury Claim

In the United States, suspects arrested in criminal cases are constantly warned that anything they say may be used against them in a court of law. In Australia, lawyers are now warning plaintiffs that anything they post on social media can and will be used against them by defendants and insurance providers in personal injury, worker’s compensation and other types of compensation cases.

These issues were to the fore recently in Foong v Ghaly, McLellan [2017] NSWDC 303. In this case, the plaintiff sought $20,665,550 in compensation for physical and psychiatric injuries sustained in two separate motor vehicle crashes she was involved in within a period of six months.

The plaintiff – who represented herself in the matter – argued that the injuries stemming from the accidents precluded her from working and sought compensation for economic loss. She also claimed that she required help because the injuries hindered her ability to do routine household chores and sought compensation for home care.

Finally, she argued against the use of her social media posts at trial, claiming they were “irrelevant and should not be tendered”. The judge disagreed and permitted their use for the following reasons:

  • the use of material posted on social media as evidence in civil and criminal matters is now considered routine;
  • relevant laws do not include any special provisions for use of such material, nor do they require that an opponent be advised they will be used;
  • this type of material is often proffered in personal injury cases when there is doubt about the claimant’s credibility and/or the extent of the injuries he or she is claiming.

The judge also allowed the material to be tendered because he couldn’t find any legal precedent for the exclusion of social media pages from personal injury cases. However, there is growing legal precedent for the inclusion of such material.

In the end the judge’s reasoning was well founded because the plaintiff’s social media posts did not support her claims. In fact, the judge found that the plaintiff’s “lack of credibility was overwhelming” and dismissed her claim that the injuries rendered her unable to work, based on some of her social media posts.

In the end, her award was just $1,250 in each case – $1,000 in each claim for past wage loss and $250 in each claim for future medical expenses.

Lawyers advise this is a cautionary tale not only for people seeking compensation in New South Wales, but elsewhere as well. This is because insurance providers – many of which have their own investigators – have learned what type of information to look for on various social media platforms. Something you post without a second thought could turn out to be incriminating evidence used at trial.

You should also be aware that your posts aren’t the only ones subject to scrutiny. Once they gain access to your social media pages, insurers will note your connections on each platform. They’ll then review any posts those people make about you. A seemingly innocuous comment such as, “it was great to see you at the family barbecue last week”, or photos of you at the family barbecue on someone else’s timeline, could be used as evidence against you in a case where you are seeking compensation as a result of, for example, the psychological impact of your accident/injuries on your desire to socialise (or lack thereof).

As we have seen, insurers will use material sourced from your social media and related accounts not only to prove that you weren’t as badly hurt as you claimed, but also to show that you are still capable of working, and the like. This is largely because, as the judge opined in Digby v The Compass Institute Inc & Anor [2015] QSC 308 (‘Digby’), Facebook is akin to a “modern day diary,” and “therefore most likely disclosable by the plaintiff”.

Digby is widely recognised as “the first to involve an order by the Court for a plaintiff in a personal injury claim to provide a copy of all material contained in their Facebook account to the defendant insurer.

Nevertheless, the Digby case appears to have opened Pandora’s box.  As a result, if you are a plaintiff in a compensation case, you should exercise caution when using social media or refrain from using it at all until the matter has been resolved.

You should also be truthful, thorough and accurate when reporting a work-related or personal injury, especially if you plan to seek legal recourse. Although it may seem beneficial to embellish the ways in which the injury has affected your life, it is crucial that you refrain from doing so as this is rarely the case.

This is an emerging area of the law where new developments are likely to surface. If you have any questions about the use of social media in connection with personal injuries, or how it may affect your case, contact us today.

 

Claiming Workers’ Compensation for Old Injuries – Is My Surgery Covered by Workers’ Compensation?

In recent years, changes to relevant New South Wales laws made it difficult – if not impossible – for people whose work-related injuries worsened over time to seek compensation for necessary treatment, including surgery. But this could soon change, thanks to a recent NSW Workers Compensation Commission ruling in the case of a retired railway worker.

The worker, Sam Baldacchino, hurt his knee on the job while working for Pacific National (then Freight Corp) back in 1999. The injury worsened over the years, causing the joint to deteriorate so much that doctors recently advised him to have it replaced.

By 2016, there was ample evidence that:

  1. The joint deterioration that occurred over time was related to a work-related injury sustained in 1999;
  2. He needed the knee replacement because of the initial injury; and
  3. The surgery meets the legal criteria for an ‘artificial aid’ under relevant laws.

Even so, the case went to arbitration, where the insurer made several arguments. After the Arbitrator found its first contention lacked merit – namely that the surgery was unrelated to the initial injury sustained on the job – the insurer raised two additional contentions about Mr Baldacchino’s right to “claim surgery.”

First, the insurer pointed out that he was no longer eligible for additional weekly benefits, and it had been more than five years since his receipt of such payments ended.  This is an important distinction because of two new provisions in section 59A of the Workers Compensation Act 1987.

Subsection 59A (1) specifically states: “Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.

Furthermore, subsection 59A(2)(b)(ii) defines a five-year compensation period as one applied to a work-related injury resulting in a legally acceptable degree of permanent impairment that begins on “the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).”

Based on these provisions, the insurer argued, Mr Baldacchino had no right to any compensation for his knee replacement surgery.

However, another new stipulation in section 59A of the Workers Compensation Act 1987, lists the exceptions to this rule. As per subsection 59A(6)(a), the time limits do not apply to “the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries).”

In this case, the insurer argued that the term “artificial aids” did not apply to knee replacement. In its opinion, the term only applies to “external” devices. However, the Arbitrator disagreed based on legal precedent, and his decision was upheld appeal.

Time will tell what happens next. Of course, the insurer could still take its arguments to the New South Wales Court of Appeal and even the High Court of Australia but even if it does, there is no guarantee it will prevail.

In any case, if the decision remains unchallenged, or if it is challenged and stands, it will undoubtedly make life easier for those who need knee replacements due to work-related injuries that have resulted in catastrophic joint damage over time.

Legal experts are also hopeful that other joint replacements will also be legally classified as “artificial aids” in this context, and there is some speculation that similar surgical intervention to treat worsening work-related injuries may also be included.

But what if you are currently suffering from the long-term effects of a work-related injury that doesn’t require joint replacement? Or what if you are suffering from the long-term effects of an injury that happened at work but wasn’t immediately evident?

In such cases, your chances of receiving compensation will probably depend on several factors. These include but are not limited to the nature of your injury, the extent of prior compensation, if any, and the nature of your claim for reimbursement.

Clearly, this is a complicated legal issue. And although there have been positive developments on this front, there is no guarantee that the Commission’s decision will stand. Furthermore, every case is different, and the outcome generally depends on the unique circumstances of each case.

If you were injured at work and the injury wasn’t immediately apparent, or it has gotten worse over time, it is important to seek advice from a qualified lawyer about any compensation to which you may be entitled. Because your physical, emotional and financial wellbeing are at stake, you should also seek advice from an experienced lawyer about your options if your claim has been denied. Don’t suffer in silence. Contact us today.

minor injury in motor accident

What is “MINOR INJURY?”

If you have been injured in a motor vehicle accident since 1 December 2017, then your claim is governed by the provisions of the Motor Accidents Injuries Act (NSW) (2017).

After you have lodged a claim form with the green slip insurer seeking compensation for your injuries, you might have received a letter from the insurer, in which they advised they have classified your injury as being “minor”.

Pursuant to Section 1.6 of the Act, a minor injury is any one or more of the following:-

  1. Soft tissue injury;
  2. A minor psychological or psychiatric injury.

A soft tissue injury is defined in the Act as the following:-

“an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.”

If your injury is classified as being minor, then you will only receive statutory benefits for a period of six (6) months.

However, after the six (6) month period of benefits has ended, you may still be in a position where you are losing income as a consequence of your injuries and also require further ongoing treatment.

In many cases, you may have suffered an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) and unfortunately, such an injury is also defined as a soft tissue injury for the purposes of the Act.

However, if the injury to the nerve results in radiculopathy then it is not a minor injury.  The criteria for assessing whether radiculopathy is present, is set out in the guidelines.  For radiculopathy to be considered genuine, two (2) or more of the following clinical signs must be present:-

  1. Loss or asymmetry of reflexes;
  2. Positive sciatic nerve root tension signs;
  3. Muscle atrophy and/or decreased limb circumference;
  4. Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
  5. Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

We can assist you in finding out whether or not your injury has been properly classified as being minor.  If your injury is not minor, then you may be entitled to far more significant benefits than the statutory benefits as imposed by the Act.

Fracture

If you have sustained a fracture, which should be easily identified by plain x-ray, then prima-facia a bone fracture is not classified as a minor injury.  It will be necessary, however, to determine whether or not the fracture has long-term consequences which may enable you to pursue a claim beyond statutory benefits for past and future loss of income and in certain circumstances, depending upon the seriousness of the fracture you may be entitled to receive damages for non-economic loss (your bodily injury which results in permanent impairment and pain and suffering).

Scarring

If you have sustained an injury which results in permanent scarring to your body then this is not a minor injury.  Depending upon the severity of the scarring and its location on your body, there is a possibility you may be able to claim past and future economic loss if as a result you have suffered a loss of income, i.e. modelling or in the alternative, you suffer from a psychological or psychiatric injury which is not minor as a consequence of the scarring.

Please contact the accredited Personal Injury Specialists at Beilby Poulden Costello who will assist you in obtaining the proper amount of compensation to which you are entitled.

WorkCover Have Rejected My Claim in NSW: What Can I Do?

If you were hurt at work or you have been diagnosed with a work-related illness in New South Wales, you probably feel as if you’ve been put through the proverbial wringer.  In addition to the pain and suffering you’ve experienced, you’ve had to deal with the emotional and financial stress stemming from mounting medical expenses and lost income due to your inability to work.  To make matters worse, you’ve just learned that WorkCover have rejected your claim. The good news is there is something you can do.

In order to dispute WorkCover’s determination, it is important to understand why your claim was rejected. Of course, the reason will depend on the specific circumstances of your case.  Whatever their reason, they must provide you with their decision in writing.

In general, WorkCover routinely denies claims because:

  • The person making the claim does not meet the legal definition for a ‘worker’;
  • The illness or injury wasn’t entirely work-related, or
  • The compensation sought is excessive given the nature and extent of the illness or injury.

WorkCover may also reject your claim if no one saw what happened; if there are any inconsistencies between your account of what happened (on the initial accident report) and evidence (including medical records); if there is reason to believe you were under the influence of drugs or alcohol at the time of the accident; or if there is reason to believe you have a pre-existing condition that caused or contributed to your illness or injury.  By far, the most common reason for denial, however, is the failure to report the accident to a supervisor immediately.

With all of that being stated, there are a couple of things to keep in mind.  First of all, your legal classification as something other than a regular, full-time employee does not preclude you from seeking worker’s compensation.  Secondly, lack of witnesses is not automatic grounds for denial of the claim if you sustained a serious or catastrophic injury and there is no doubt as to how it happened.

It is also important to note that the way in which you can dispute WorkCover’s initial determination depends on where you work, because there are different rules for doing so in each state. In New South Wales, you can begin by asking the insurance provider for a review. You can do this by stating your reasons for the request on the application form supplied by the insurance provider.  You should also provide additional evidence or information to support your case along with this form. You should get an answer within 14 days.

In a best-case scenario, WorkCover will reverse its previous decision and accept your claim.   If it doesn’t, you still have options.

If the insurance provider stands by its initial decision upon review, your next step is to seek assistance from the Workers Compensation Committee (WCC).  Operated by the Government, the WCC addresses disagreements between worker’s compensation claimants and employers or insurance providers.  Depending on the circumstances of your case, WCC may assign someone who is well versed in worker’s compensation law, called an arbitrator, to help resolve the matter.

Bear in mind, however, that the WCC will not accept any new evidence at this time. Instead, it will only consider the merits of material you initially provided on the accident report and request for review.

You should also be aware that you don’t need to do all of this yourself.  At a time when you and your loved ones are likely feeling intimidated and overwhelmed by everything you’ve gone through, it is important to retain a skilled and knowledgeable worker’s compensation lawyer who can thoroughly assess your case and fight for your rights. To learn more about how we can help if WorkCover rejected your claim in New South Wales, contact us today.

workers compensation claim for sychological trauma

Psychological Trauma at Work: Can I Make a Claim in NSW?

For many Australian workers, dealing with a stressful workplace is par for the course. Tension with co-workers or supervisors, deadlines, difficult clients or customers and constant doubts about job security can all make for a challenging environment. Sadly, many Australians have also experienced workplace bullying or harassment and now suffer from depression and anxiety. If you’re dealing with any type of psychological trauma sustained at work, you may be able to apply for workers’ compensation in New South Wales.

To make a successful claim on these grounds, you must prove that you meet certain standards. Specifically, you must provide adequate medical verification that you suffer from a permanent psychological injury or similar condition caused by your job that interferes with your ability to function normally.

In and of itself, a prescription issued by your own doctor for time off to recover from work-related stress is not sufficient proof. Instead, you must see an authorised specialist trained to assess your condition. At your appointment, he or she will do tests to determine the extent of the emotional and/or psychological trauma you sustained. The specialist may also consider:

  • Medical reports;
  • Test results;
  • Statements from relatives, co-workers and friends, and
  • Your own statement (s).

If the specialist finds it is no less than a ’15 percent impairment of your whole person,’ you should be able to make a worker’s compensation claim for a chronic ongoing condition.

Nationally, more than 7,000 Australians receive compensation for work-related mental heath conditions each year, accounting for roughly 6 percent of total workers’ compensation claims. However, the total workers’ compensation payments made for these claims is more than $540 million.  A closer look at government data for FY 2010-11 through FY2014-15 also reveals that the typical reparations made for this type of claim totaled $24,500 in comparison to $9,000 for all other claims.

Successful claims generally provide reparation for lost wages stemming from your inability to work, medical expenses, and ancillary costs. However, the amount you will receive depends on the specific circumstances of your case.

Before you make a claim, you should be aware that it is s unlikely you will prevail if your condition stemmed from any action that can be legally classified as ‘reasonable management action.’ This includes a job transfer, demotion, dismissal or reassignment, as long as your employer can prove it was ‘reasonable.’ Under this definition, for example, mandated participation in a job assessment may also qualify as reasonable action.

Even if you aren’t eligible to make a worker’s compensation claim, you may be able to pursue other legal recourse if you suffer from psychological trauma resulting from workplace bullying. This is because the Fair Work Act includes anti-bullying provisions allowing the Fair Work Commission to make orders to stop the behaviour from continuing. However, be aware that settling a claim in the Fair Work Commission may mean that you cannot make a claim for workers’ compensation.

By far, the worst thing you can do if you have experienced emotional distress or are experiencing significant psychological trauma stemming from work, is to remain silent. After you’ve seen a qualified mental health professional, it is important to get the proper legal advice. To learn more about how we can help you make a worker’s compensation claim or pursue other legal remedies, contact us today.

call us for public liability claims

How to Make a Public Liability Claim in NSW?

What is a Public Liability Claim

A public liability claim refers to a claim made for injuries sustained in public places in accidents caused by the negligence (failure to exercise reasonable care and skill) of a person or organisation.

For instance, let’s say you’re walking through a shopping centre and you slip and fall as a result of a spilt liquid on the floor causing an injury to you. The owner of the shopping centre possibly could have prevented the unfortunate incident by ensuring that their cleaning staff better maintained the centre’s floor.

Compensatory damages are available under the Civil Liability Act NSW 2002 as follows:

  • Past and future medical expenses;
  • Pain and suffering (past and future);
  • Past and future loss of earnings, including loss of superannuation contributions;
  • Cost of other assistance (domestic assistance, personal care provided by friends, family or professional organisations for the past and future).

Public liability claims derive from numerous accident types. Here are some examples:

  • Assault-related injuries;
  • Animal attacks (most commonly dog bites);
  • Injuries due to defective machinery;
  • A slip and fall in public spaces and facilities;
  • Food poisoning;
  • Sporting, recreational  injuries;
  • Physical assaults;
  • Sexual assaults;
  • Schools and playground injuries;
  • Aviation (planes, helicopters) injuries;
  • Maritime (boats, ships) injuries;
  • Hotels and other venues injuries;
  • Injury at a construction site;
  • School yard injuries;
  • Amusement venue injuries;  and
  • Injuries in rental premises (e.g. landlord/tenant).

Public liability insurance

In most cases, business (private or public) have public liability insurance for these types of incidents,  which essentially means that in making a claim against the business, you’re in fact making a claim against their insurer. Some people can wrongly assume they are pursuing legal action against the business and for that reason, do not follow through with a public liability claim, despite incurring significant inconvenience and financial hardship.

Notwithstanding this, it is not uncommon for people who have an accident in a public place to initially suffer from only a little pain and discomfort, choosing not to pursue a claim, only to later find that the injuries sustained were serious, requiring surgery. For this reason, it is often wise to seek medical attention regardless of the injuries sustained.

Proving a Public Liability Claim

In a public liability claim, the evidence of the incident is vitally important, because your lawyer will need to be able to demonstrate that:

  • The person or company at fault owed you a duty of care.
  • The person or company breached that duty of care.
  • As a consequence, you were injured and suffered loss.

Practically speaking, following an injury in a public place if you’re able, the following should be attended to.

  • The first thing you should do, when injured in a public place is to let the owner/manager of the business know.
  • Ensure pictures are taken of everything, the injury itself, the establishment, the object causing the injury.
  • Witnesses are very important, take notes of their names and phone numbers
  • Access any surveillance camera footage
  • Make a video recalling what happened right away
  • Seek medical assistance as soon as possible.
  • Seek advice from a specialised lawyer in personal injury claims.
  • Save all medical evidence, bills, receipts, doctor’s records and anything else proving you sustained an injury.
  • Financial documents are also important to prove a loss of income resulting from the accident.

Getting Help

Public liability claims can be difficult to prove, hence the need to ensure you collect as much evidence as possible as promptly as possible and seek legal advice.

These matters have very strict time limits that apply.

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.

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.

what is a tpd or superannuation claim

What is a TPD or Superannuation Claim?

If you have been injured and are now unable to work there are a number of benefits (compensation) that you may be entitled to, including a claim under your superannuation policy, known as a TPD claim. In this video, BPC Lawyers’ Tim Driscoll explains in detail what these claims are and what you need to know to in bringing such a claim.

wistia fast
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 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.

product liability

Product Liability in New South Wales

Accidents happen! It’s one of the oldest platitudes in the books, often accompanied by a rueful smile and half-hearted shrug in the face of hapless error or unexpected circumstances. And with recent studies reporting that 22.4% of Australian class actions in the past 20 years have been made up of product liability claims, it is clear that however clichéd, accidents DO indeed happen, and are often the result of faulty products. If you or a loved one have suffered from a product-related injury or illness, it is important that you contact a lawyer as soon as possible to discuss your case and explore your possible claim options, because very tight time limits apply.

What Must Be Proven?

Under Australian law, a claimant must demonstrate three key issues in order to bring a successful products liability claim:

  • Injury: That there has been an actual harm suffered.
  • Breach of Duty: That there was a duty of care owed to the injured party and that duty was breached.
  • Causation: And that the harm suffered was caused by that breach of duty.

Three Legal Basis’ for a Products Liability Action:

When bringing a cause of action based in products liability, you will have to decide upon which basis you want to argue your claim. There are three common areas in which product liability claims are based, including the negligence theory of tort law, breach of contract, or a breach of Australian Consumer Law (ACL) under the federal statute Competition and Consumer Act of 2010. Though not the only legal theories to base a products liability claim, they are the most common and most successful.

  1. Tort Law: The fault-based negligence theory of tort law relies on the understanding that manufacturers and sellers of goods owe a duty of care to consumers. This duty of care presumes that the purchasers and users of the goods can rely upon the safety of the goods, and are reasonably protected from the foreseeable risks of injury when appropriately using the product.

If and when a product causes injury or illness due to error of construction, faulty mechanics, or defective design, the injured consumer will have a negligence claim against the manufacturer.

  1. Causation Requirements: Under tort law, there are generally two requirements to demonstrate causation: (1) the negligence was the factual causation of the injury…that is, that the harm would not have happened but for the negligence of the manufacturer, & (2) that the scope of liability included the injury that was caused…meaning that the harm could be reasonably foreseen as a result of negligence.
  1. Breach of Contract: If a buyer enters into a contract with a seller, and the product contracted for caused injury or illness due to defect, the buyer may be able to seek relief against the seller under the theory of contract law. Less popular than the other two theories of relief, the remedies for this cause of action are often limited by the language of the contract itself. Often, there will be a distribution of liability for any defect outlined in the express and/or implied terms of the contract.
  2. Breach of Australian Consumer Law: A theory of strict liability, a breach of the statutory duty of the ACL will hold manufacturers directly liable to plaintiffs for both personal injury and property damages that are the result of a defective product. Under the ACL, a product will be deemed ‘defective’ when ‘their safety is not such as persons generally are entitled to expect.’
    1. Causation: Under ACL, causation may be demonstrated by either showing that the plaintiff has suffered a loss or damage due to a safety defect or by showing that the manufacturer failed to comply with a consumer guarantee and the plaintiff suffered injury as a result.

Products liability claims often involve a variety of different legal concepts including (but not limited to) contract law, statutory law, business law, personal injury, and insurance law. Because of this broad intersection of legal topics, these cases can become very complex and, without the experienced guidance of a lawyer, may drag on forever and become costly and frustrating. Reach out to today to discuss your case with a trained products liability lawyer whose expertise will help you represent your best interests and receive proper compensation for your suffering

Medical Negligence Claims FAQ's

Medical Negligence: The Commonly Asked Questions Answered

If you have suffered from medical negligence, then it’s likely you have plenty of questions needing to be answered. In this podcast, Sydney Personal Injury Lawyer, Courtenay Poulden addresses those questions and reiterates the importance of getting legal advice very early.

 

Dan:

Every year thousands of people undergo surgery or other types of medical interventions and it’s not surprising, giving the sheer volume, that mistakes or oversights occur. What happens when they do and, more importantly, what can you do about it? Well, today I’m with Courtenay Poulden, an Accredited Personal Injury Law Specialist and Multi-Award Winning Lawyer. Courtenay, what should people personally do in these types of matters?

 

Courtenay:

Well, it’s promptly getting advice quickly. A lot of people are under the misconception that every failed medical procedure is due to negligence but they need to find out whether there’s something the doctor or the hospital or the nursing services have done that really is more than just one of the normal consequences of a medical procedure.

 

Dan:

How do they find this information? Is it, do they access reports or what do they do?

 

Courtenay:

The first step’s to get hold of the records from the various doctors who are involved or hospitals that have been involved, have them reviewed initially by lawyers such as us, and then ultimately refer them off to an independent doctor who can comment on the performance of the doctor or the hospital involved.

 

Dan:

Courtenay, is it the case that prior to your first consult with a person that may have suffered a potential medically negligence matter that they should acquire all those files through freedom of information first and then bring them to you?

 

Courtenay:

No, no, no, we’ll do all that for them. What we need people to do is contact us, let us have a general discussion and meet with them to talk about what’s happened. Then, if we decide that the case is worth investigating we’ll go ahead and get all of those for them.

 

Dan:

What about time frames? Now I know generally personal injury matters are very, very tight. In medical negligence matters, generally is there a time frame?

Courtenay:

It’s pretty much the same. They’re governed by the Civil Liability Act which is a general rule imposed at the three year limitation period. That’s not three years necessarily from the date of the medical procedure or hospital admissions, that’s three years from the date that you know you’ve got a case, when your cause of action is what the law calls discoverable. When you’re at that stage your three years start and it’s pretty strict from then on so it’s not the sort of thing to mark around and put out of your mind and think you can come back to it three or four years down the track.

 

Dan:

How long do these matters typically take? If there’s an action when would people start to see a damages payout?

 

Courtenay:

Well, that depends pretty much on the complexity. There’s some pretty easy cases where if you went in the hospital and you had to have your left leg operated on and they did your right, that would be a pretty easy case because there’d be no dispute about fault and those types of things. Mostly in medical negligence sort of cases the issues are pretty complex. The reason for that is that most people go into hospital or go and see a doctor when they’ve already got a problem. What we’re talking about is the extent to which that problem has been made worse or you’ve got other additional complications.

 

It’s normally not as easy as some other cases where someone starts all afresh without any injuries like a car accident. In these sort of cases you’ve got to take into account the fact that you had a problem in the first place, that’s why you went to the doctor. That’s why it makes it a little bit more complex than your sort of run of the mill court cases or compensation cases.

 

Dan:

These cases don’t always involve surgery do they? I suppose that by and large that they take up a fair proportion of them but …

 

Courtenay:

Well, I wouldn’t say that. I think for the by and large it’s not surgical type cases.

 

Dan:

Okay.

 

Courtenay:

The ones we most commonly see involve failure to perform surgery or failure to intervene when there’s been investigations done that should have indicated to a doctor to do something or where the investigations weren’t done at all because the doctor didn’t think that that test was necessary. Rather than it being so much the result of some active procedure it’s often a failure to act. Pretty common cases, for example, are late diagnosis of cancer. You go along to a doctor or a hospital, have a number of tests done which you show later down the track should have been an indication of the early incidence of cancer, for example.

 

If that’s so, that’s the failure of anybody to intervene an act that might be the negligent act.

 

Dan:

I suppose a take on message, Courtenay, is for people to get advice very promptly on these matters.

 

Courtenay:

That’s certainly the case because records should be obtained early. If there’s witnesses who are not doctors such as other family members who were present, their statements and evidence become vital so, yeah, there’s no reason to delay at all. On the contrary, you should get onto it quickly so that you also get some peace of mind as well, I think that’s pretty important for most people who are suffering sickness or illness.

 

Dan:

In terms of BPC, a free initial consult and no obligation consultation?

 

Courtenay:

Absolutely. Yeah, absolutely we will see someone. We will make a decision from an early … We do a bit of our own which doctor type inquiries from people we do know. We speak to doctors who we’ve had in cases over the years, just if to get a general idea whether a matter’s worth investigating. If so, yeah, we’ll do all those investigations at no cost. Of course, if the matter goes ahead they’ll be a fee arrangement, if it doesn’t it’s nice to have been able to help you and best wishes.

 

Dan:

Courtenay, thanks for joining me.

 

Courtenay:

My pleasure.

 

Injured on the Roads while driving cycle. Contact BPC Lawyers today for help.

Your Rights as a Cyclist if you have Been Injured on the Roads

After 1 December 2017, if you are a cyclist and have been injured in a collision with a motor vehicle on New South Wales roads, then you will be able to claim damages pursuant to the provisions of the Motor Accidents Injuries Act (NSW) 2017.

Your claim can be made against the CTP green slip insurer of the motor vehicle or bus with which you had the collision and if the vehicle was unregistered then you are still able to bring a claim against the Nominal Defendant.

Pursuant to the provisions Division 2.4 of the Motor Accidents Injuries Act, the State Insurance Regulatory Authority (SIRA) is for the purposes of this Act the Nominal Defendant.

The writer has acted for many cyclists who have been seriously injured in accidents involving another motor vehicle.

It is now a common sight to see cyclists on our roads, both during the day and also at night.

The NSW Government has recognised this fact and has enacted new laws in relation to driver behaviour regarding cyclists.

Since 1 March 2017, drivers in NSW must leave at least one metre of space when passing a cyclist in speed zones of 60 km per hour or less. They must leave at least 1.5 metres in higher speed zones.

Furthermore, if it is safe to do so, drivers can cross centre dividing lines or continuous lane dividing lines to overtake a cyclist. They can also drive on painted islands and dividing strips to pass a bicycle when safe to do so. If it is not safe, drivers must slow down and wait until there is enough space to pass.

As far as cyclists’ behaviour concerning other motor vehicles, the minimum passing distance is not specified for cyclists and they are advised to leave sufficient room to avoid a collision when passing cars.

The writer has been involved in several cases where cyclists were thrown from their bicycle and sustained serious injuries and in one circumstance was rendered unconscious. It is therefore important if you are a cyclist at all time you have with you photo identification and also a mobile phone. It has also been mandated by the government there is a requirement for bicycle riders to produce photo identification when stopped by police who have suspected they may have committed an offence.

It is helpful if you also carry a photo ID in the event that a person or persons witness your accident and may wish to keep in contact with you and provide you with statement regarding your accident to assist you in your claim. I have been involved in a number of cases where the statements by independent witnesses were crucial in proving the cyclist was not at fault and the entire blame for the accident fell upon the driver of the motor vehicle.

It is always important to have a mobile phone with you to be able to photograph the registration plate of a motor vehicle if needed and also record details of the driver including taking a photograph of their driver’s licence.

All of this information will assist you when completing the Application for Personal Injury Benefits which is the new claim form required to be completed for all accidents after 1 December 2017 and must be lodged with the relevant CTP insurer within three months of the date of your accident.

There may also be circumstances where a cyclist has sustained injuries from falling off their bike because of defects in the road surface such as a pothole or other dangers such as loose gravel, however, these claims are governed by the provisions of the Civil Liability Act (NSW) 2002 and such claims against the local council, who are responsible for the maintenance of the road, require far more investigation.

The local council will endeavour to seek immunity from suit pursuant to the provisions of Section 43 of the Civil Liability Act. It will be necessary to seek the advice of an Accredited Specialist in Personal Injury Law with regards to proceedings of this nature.

If you are injured whilst riding your bicycle on NSW roads, then contact the specialist accredited lawyers at BPC Lawyers who will be able to provide you with immediate assistance.

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.

Scott:

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.

 

Dan:

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?

 

Scott:

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.

 

Dan:

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?

 

Scott:

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.

 

Dan:

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?

 

Scott:

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.

 

Dan:

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?

 

Scott:

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.

 

Dan:

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?

 

Scott:

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.

 

Dan:

Scott, thanks for joining me.

 

Scott:

That’s a pleasure. Have a good day.

 

 

Injured at work? Am I Entitled to Workers Compensation, contact BPC Lawyers today.

I Have Been Injured on My Way to Work. Am I Entitled to Workers Compensation?

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

But what about traveling to work? Are you covered?

Travel to and from work

Ordinarily, you will not be covered for travel to and from your home to your place of work. It did always used to be the case however, recent changes have restricted the scope of workers compensation; Section 10 Workers Compensation Act 1987 (NSW).

However, once you reach work, further travel during work hours can be covered.

Exception – Travelling to work/work site for work sake

As you can appreciate, workers compensation law must determine who is covered in all types of work. Some industries see workers travel straight from home out to a work site, or are road based, such as truck drivers.

It is to those types of working based situations that the law protects. What needs to be established is that there is a, “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.” Section 10 (3A) Workers Compensation Act 1987 (NSW).

It is well settled that a worker, during their employment, can be on a journey from a place of abode to a place of employment at the same time. For example, in the case of Hooke v Rolfe (1986) 7 NSWLR 40, the New South Wales Court of Appeal was under no hesitation to find that motor vehicle accident can have multiple purposes in the sense of being both for employment purposes and for travelling to or from places of abode.

Hence, if your job is one which by its very nature requires you to travel, or even better you’re paid to travel for work, then you may have a claim under a whole number of different provisions designed to grant a positive right to compensation: Harvard v Illawarra Meat Co Ltd [1956] WCR 4 and Thompson v Lewisham Hospital [1978] WCR 111.

We have run many of these cases with great success.

In the matter of Zammit v The Bush Doctor (NSW) Pty Limited (2014) (Unreported 14 September 2014), an employee was employed to attend various bush sites to use pesticide.

He was driving his own motor vehicle and suffered a crash when a spider climbed up his arm. He was taking tools and products (herbicide) to the work site where he was directed to go by his employer.  He was paid an extra allowance for the travel.

Hence, the Senior Arbitrator (now Presidential member) Michael Snell (as in Maurino v Amberlor Pty Limited (1996) 14 NSWCCR 16) found in favour of the injured worker and found that this was not just a trip to work, but was a part of his work duties; thus, he was awarded workers compensation entitlements.

Conclusion

Many workers, like us lawyers, are office based. We travel from home to work by car, bus, train, ferry, bike or even just using our legs. Many injuries are suffered on our way to work (many at no fault of our own).

Regrettably, most workers have lost their right to workers compensation in these circumstances.

However, there are exceptions. To know if you fall into one of these exceptions, we need to look at the whole work situation – your employment contract, what you’re paid for, duties performed and the reasons for your travel.

If you’re injured in a motor vehicle it is best to contact our office to ensure that you obtain full access to any entitlements you may have.

No Win No Fee by BPC Lawyers

What Does “No-Win, No-Fee” Mean?

The obligation of a client to pay costs and disbursements to a lawyer is required to be agreed upon and set out in a Costs Agreement.

The Costs Agreement will deal with issues such as the hourly charge rate of the lawyers, when payment is to be made, the estimate of the total fees that are likely to be incurred and the types of disbursements that will also be charged.

A “no-win, no-fee” agreement relieves a client from paying legal fees unless and claim is successfully concluded. That is to say if the case is lost or does not end in a successful outcome, then the client is not required to pay the solicitor’s costs.

A successful outcome will be defined in the Costs Agreement, but usually refers to a settlement involving a financial benefit to the client or a judgment in favour of the client.

“No-win, no-fee” agreements are looked at favourably by many clients because not only does the agreement have the effect of reducing the client’s liability to pay legal costs, but will also instil in the client a confidence that the solicitor believes that the claim is likely to succeed. After all, why would a solicitor be wasting time and money in pursuing litigation if the claim was not likely to be won?

Party/Party Legal Costs

Ordinarily, the court will order that an unsuccessful litigant pay the successful litigant’s costs of a court case. Those costs are usually required to be paid on a party/party basis.

As a rule of thumb, party/party costs cover about two-thirds of the total amount of costs that have been incurred.

It is important to understand that a “no-win, no-fee” agreement does not operate to remove the client’s liability to pay an opponent’s legal costs if the claim is lost.

As with all Costs Agreements, it is important that you properly understand the “no-win, no-fee” Costs Agreement before the lawyer starts work. Whilst “no-win, no-fee” Costs Agreements are significantly more attractive than most Costs Agreements, there can be issues that you will need to discuss with your lawyer.

 

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.

 

Transcript:

Dan:

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

 

Kate:

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.

 

Dan:

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

 

Kate:

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.

 

Dan:

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

 

Kate:

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.

 

Dan:

Kate, thanks for joining me.

 

Kate:

You’re welcome.

 

Dan:

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.

 

 

 

Statutory Paybacks to Centrelink and Medicare

Statutory Paybacks to Centrelink and Medicare Following Receipt of Compensation

In most cases, standard settlement terms allow a period of 28 days for payment of settlement monies to a claimant following receipt of statutory “clearances” from Medicare and Centrelink. A compensation payer has statutory obligations to notify Centrelink and Medicare following resolution of a claim and to attend to statutory paybacks prior to releasing settlement/judgment monies.

Centrelink

Part 3.14 of the Social Security Act 1991 (Cth) imposes an obligation on a “compensation payer” to reimburse the Commonwealth any “compensation affected payments” received by a “compensation recipient” during the “lump sum preclusion period”. This means that a person who is responsible for the payment of compensation to a claimant must reimburse the Commonwealth any compensation affected payments received by a claimant during the relevant preclusion period. The preclusion period is calculated by reference to Section 117O of the Social Security Act. The preclusion period varies in each individual matter as a formula is applied based on the settlement/judgment amount and whether a claimant has received periodic compensation payments, a lump sum compensation payment or both.

Compensation affected payments include a range of social security benefits including unemployment benefits, various disability pensions and other payments and allowances. A full list of relevant payments may be found in Section 17 of the Social Security Act.

Liability to reimburse Centrelink generally arises following settlement/judgment if a claim for economic loss has been made. A compensation payer must notify Centrelink of the settlement/judgment amount. Centrelink then applies the statutory formula and provides written notice to a compensation payer confirming the recoverable amount. Upon receipt of a recovery notice, the compensation payer becomes liable to repay the amount specified in the notice. It is a strict liability offence for an insurer to make a payment to a claimant before any monies owing to the Commonwealth have been reimbursed. The insurer’s liability to the Commonwealth is discharged upon payment of the amount specified in a recovery notice.

Liability to reimburse Centrelink usually only arises in circumstances where a claim for economic loss has been pursued by a claimant. For claims that resolve without a component for economic loss, a request for a clearance usually results in a clearance being issued confirming that no payback to Centrelink is required. Insurers usually request a clearance even in such circumstances so as to ensure that they have discharged any liability to the Commonwealth.

In order to avoid unnecessary delays in receiving settlement/judgment monies at the conclusion of a claim, it is important to notify Centrelink and request a clearance as soon as possible.

Lawyers who act for claimants must ensure the prompt execution and return of all necessary documentation so as to avoid unnecessary delays. Lawyers must also ensure that all documents are completed properly otherwise they are likely to be rejected by Centrelink resulting in delays and financial hardship to claimants who have had their Centrelink benefits suspended following settlement/judgment.

In circumstances where a claimant is suffering financial hardship or has other extenuating circumstances, it is recommended that lawyers contact Centrelink directly to request that a clearance be given priority. This information should also be conveyed to the insurer or the insurer’s legal representatives at the time of settlement so as to avoid unnecessary delays.

Medicare

The Medicare payback scheme is governed by the Health and Other Services (Compensation) Act 1995.

In circumstances where a claimant has received Medicare benefits arising from medical expenses in respect of the compensable injuries for which compensation has been claimed, the total value of the benefits must be reimbursed to the Commonwealth if the claim resolves for a sum in excess of $5,000.00.

The “notifiable person” (usually the insurer or compensation payer) must notify Medicare in writing within 28 days of the date of judgment or settlement. Notification may be made by completing a Section 23 Notice titled “Medicare Compensation Recovery Notice of Judgment or Settlement”.

It is important that lawyers acting on behalf of claimants promptly request a Medicare History Statement following lodgement of a claim so that all Medicare benefits previously received in respect of a claimant’s compensable injuries may be identified and a Notice of Charge issued. A Notice of Charge is only valid for a period of 6 months and it is therefore important for lawyers to regularly update these notices to ensure that a valid Notice of Charge is available at the time of settlement.

A claimant is required to complete the Medicare History Statement to the best of his or her recollection and does not need to cross reference each individual benefit with records obtained from treatment providers. Medicare will contact a claimant if an issue arises or if there appears to be an error. It is extremely important that a claimant completes the Medicare History Statement promptly and returns the completed documents to Medicare. If the documents are not returned to Medicare within the prescribed timeframe of 28 days, Medicare will deem all listed benefits as being related to the claim and will issue a “deemed” Notice of Past Benefits for the full amount whether or not such benefits were in fact related to the subject claim.

To avoid unnecessary delays in claimants being paid the full amount of their settlement/judgment monies, lawyers acting on behalf of claimants should attempt to ensure that there is always a valid Notice of Charge retained on file so as to avoid the need for advance payments. A copy of a valid notice should also be provided to the insurer at the time of settlement so as to avoid an advance payment inadvertently being made.

If there is a valid Notice of Charge at the time of settlement, this amount can usually be included as part of a claimant’s claim for out of pocket expenses. A compensation payer is then only required to attend to payment of the amount specified in the Notice of Charge to discharge their liability to Medicare following settlement/judgment.

If there is no valid Notice of Charge at the time of settlement/judgment, an “advance payment” representing 10% of the total settlement/judgment sum may be made. In the event of an advance payment being utilised, notice must be provided to a claimant pursuant to Section 33A of the Act of the intention to make an advance payment. Any advance payment must also be made within 28 days of the judgment/settlement. Medicare then have a period of 3 months to conduct a reconciliation and issue a refund once the payback figure has been determined.

Claimants can avoid the need for a 10% advance payment being made in circumstances where there is an expired Notice of Charge but no additional injury related benefits have been paid since the last Notice of Past Benefits was issued. In such circumstances, a claimant may complete a Section 23A Statement and return it to the compensation payer with the other settlement documentation. The insurer will then only be required to pay the amount specified in the expired Notice of Past Benefits.

It is an offence for a compensation payer to pay the claimant any part of the compensation amount unless the required payment has been made to Medicare or the specified amount has been withheld from the claimant. In the event that settlement monies are disbursed prior to reimbursement to Medicare being made, a compensation payer is liable to make the payment over and above the settlement funds. Criminal sanctions also apply as a result of failure to comply with such obligations.