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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.

Are you suffering from an injury that wasn’t your fault?

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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.

Proposed Reforms to The CTP Scheme

Proposed Reforms to The CTP Scheme

Changes to the Rights of Victims of Motor Vehicle Accidents

What rights do those injured in Motor Accidents presently have in NSW?

 It is compulsory for drivers in New South Wales to hold third-party insurer which covers any injuries covered to any person whilst driving a motor vehicle. The policy is not limited and it means that all victims of motor vehicle accidents are covered for the injuries that they suffer.

The compensation that is payable is usually referred to by the courts as ‘damages’.

a/ CTP Scheme Common Law Damages – Modified – for Victims of At Fault Accidents

Victims of motor vehicle accidents in New South Wales are currently entitled to modified common law damages. The object of an award of damages is to put the person back in the same situation as if the accident had not occurred. For reasons of economy, the entitlement to compensation is capped in several respects. Damages are awarded on a ‘once and for all time’ basis.

Damages are tailor made to the specific circumstances of the injured party. The damages are assessed in ‘heads’. The heads of damage that are usually claimed include:

i/ General damages for pain and suffering.

ii/ Loss of wages. This includes past loss of wages as well as the anticipation of loss in the future, including the loss of opportunity for profit, advancement or promotion.

iii/ Past and future medical expenses.

iv/ Nursing and domestic assistance.

Some of the ways in which the entitlement to damages is currently modified, or limited, include:

i/ There is no entitlement to recover general damages for pain and suffering except where the injury is found to have constituted a less than 10% whole person permanent impairment.

ii/ There is no entitlement to recover damages for care and assistance gratuitously provided unless the care has been provided for at least 6 hours per week and for greater than six months.

iii/ The reliance upon a 5% actuarial multiplier which lowers the damages awarded for future losses.

b/ No-Fault Compensation

Damages are also available irrespective of fault in the following limited circumstances:

i/ Catastrophically injured victims of motor vehicle accidents receive medical expenses and care on an as incurred basis.

ii/ Damages are available when the injuries are suffered in a “blameless” motor vehicle accident (the Sophie Delizio amendment).

iii/ Children under the age of 16 have a special entitlement to recover damages for medical expenses, care and funeral expenses irrespective of fault.

iv/ Medical expenses and potentially loss of wages are payable up to $5,000.00 irrespective of fault, provided the claim form is issued within twenty eight days of the accident.

c/ Benefits of the Current Scheme

i/ Compensatory Damages:

For the majority of innocent victims of motor vehicle accidents of New South Wales, the compensation awarded to them is assessed depending upon their particular circumstances. The intent of compensatory damages is to ensure that the injured party does not suffer as a result of another driver’s fault.

ii/ Immediate Payment of Medical and Rehabilitation Expenses:

During the course of the claim most medical expenses are paid as incurred and at the conclusion of the claim an amount is awarded to cover additional anticipated future expenses.

iii/ Payment of Legal Costs:

A victim of a motor vehicle accident who establishes an entitlement to compensation is entitled to have the majority of their legal costs paid by the insurer of the party at fault. In some circumstances the amount that can be recovered for legal costs is capped, but there is no restriction on a person’s entitlement to retain a lawyer at their own cost. When we buy a cupboard from Ikea, we expect an instruction manual. Most of us would be in a great deal of trouble without that assistance.

iv/ A Tailor Made Approach:

At common law, the court has an open discretion to award such amount of compensation as is necessary to put the injured party back in the situation as if the accident hadn’t occurred. While money can only do so much, it is intended that the compensation will cover all loss that has been suffered. This is important because no two cases are ever the same. Consider, for example:

  • An apprentice who will expect to receive a significantly greater wage when they obtain trade qualification;
  • Medical treatment that has been completed but may require a joint replacement in the future;
  • An injured party that is able to return to work after an accident but may need to retire early;
  • A mother who intends to return to work in the future.

CHANGES TO THE SCHEME

The Benefit Designs Options paper provided by the Government appointed reference panel stipulates at Page 1 that it has already been determined as Government policy that there will be changes to the CTP scheme to introduce a hybrid model of compensation, with benefits defined in the legislation (defined benefits) available to all, regardless of fault and limited common law damages available to those who can prove fault on the part of an owner or driver and whose injuries give rise to a permanent impairment of greater than 10% whole person impairment. The Benefit Designs Options paper, together with consultation documents provided by SIRA, indicates that the severely injured will have vastly reduced common law benefits under the proposed hybrid compensation model.

a/ Moderate to Minor Injuries

It appears clear that an arbitrary whole person impairment rating level is likely to be viewed as the gateway for accessing any form of common law benefits

For those who have not suffered a whole person impairment of greater than 10%, entitlement to loss of wages will likely be dictated by the insurer who is participating in the scheme for profit. Page 4 of the paper suggests that an insurer can undertake a work capacity decision for a person at any time. It appears that persons considered to be moderately injured or with ‘minor’ injuries, will have no access to legal representation unless a claimant lacks legal capacity or an insurer has denied liability for all benefits (example, by an allegation of fraud).   Access to justice by way of legal representation appears to be further limited by a stated policy that legal practitioners be prohibited from contracting out of prescribed set maximum legal fees in matters where claimants are allowed to utilise the services of lawyers.

Those injured would be entitled to defined benefits irrespective of fault. Injuries would be compartmentalised and the payment of a benefit would largely depend upon the categorisation of the injury, rather than the actual loss suffered. Wage loss would be compensated as the loss arises, but only as a proportion of the actual loss. The entitlement to claim loss of wages would end at a defined point in time irrespective of whether the injured person has the ability to return to work.

b/ Severely Injured

The government has as its preferred option an additional entitlement for the victims of “at fault” motor vehicle accidents, only in circumstances where the injury meets a requisite threshold: 10% whole person permanent impairment.

The impairment threshold is arbitrary and intended to operate as a gateway to define the ‘haves’ and ‘have nots’. There is no pretence that the 10% threshold is just or equitable, but merely economical. For example, a person who is in a coma for six months but then recovers may be found to have a 0% whole person permanent impairment.

WHY ARE THE CHANGES UNFAIR?

 a/ Access to Legal Rights

The government proposes that ordinarily only those who are severely injured will be legally represented. The victim of a motor vehicle accident will be prohibited from paying for legal advice from their own pocket unless they are severely injured. A severely injured victim may not realise that they have the opportunity of passing through the gateway and being determined as ‘severely injured’ without the benefit of legal advice. Good luck with that Ikea flat pack.

In all aspects of our daily life we look to experts for advice. It is a fundamental tenet of a free and just society that we are able to obtain legal advice about our rights. The government wishes to curtail access to legal advice because people who do not understand their rights will not make claims.

The independent review of insurer profit conducted at the request of the government found people who were legally represented obtained outcomes that are eight times greater than the outcomes for unrepresented Claimants.

Further, the proposed changes deny even an unrepresented victim access to the courts. The government proposes that disputes about a level of pay or the reasonableness of medical expenses would be determined by bureaucrats after hearing from the injured victim and the insurer, or its lawyer. The evidence that would be considered by the bureaucrat would be the documents obtained by the insurance company and submissions that it, or its lawyer, prepared compared to the documents that the unrepresented injured party was able to offer.

b/ Defined Benefits

The common law approach of assessing what loss and damage a victim has suffered is substituted for defined benefits which seek to pigeonhole compensation. The government intends to save money by paying defined benefits with the intention that the cost of the scheme will be more easy to calculate and as a result mean the cost of a green slip can be more readily determined. In fact, the saving will be made by reducing the entitlement to compensation.

c/ Finality

In our experience, most people who suffer injury want a final resolution. That usually involves payment for past losses and an allowance to cover the future all paid in one lump sum. The changes to the scheme will mean that even seriously injured victims will not be allowed closure. For the severely injured, payments of medical expenses can be accessed for life but subject to satisfying an insurer that the treatment is reasonable and necessary.

CONCLUSION

We are sceptical of the government’s intention with respect to the changes to the scheme. The government wants to remove access to justice and put in its place a bureaucratic scheme that offers defined benefits. The government is significantly more concerned with the cost of a green slip than it is of the rights of those injured in motor vehicle accidents. Aside from insurers, very few people will benefit from the government’s proposal.

[1] Motor Accidents (Lifetime Care & Support) Act 2006

[2] Chapter 1, Pt 1.2, Div 1 Motor Accident Compensation Act 1999

[3] Chapter 1, Pt 1.2, Div 2 Motor Accident Compensation Act 1999

[4] Chapter 3, Pt 3.2 Motor Accident Compensation Act 1999

Why Does the Government Want to Change the Scheme?

Stated goals of reform

The stated goals of reform are as follows:

i/ Increase the proportion of benefits to more seriously injured people;

ii/ Reduce the time it takes to resolve a claim;

iii/ Reduce opportunity for claims fraud and exaggeration; and

iv/ Reduce the cost of green slips.

 Subject to ascertaining how many additional claims are made by persons at fault in accidents, regardless of whether they are deemed to have minor to moderate injuries or serious injuries referable to a whole person impairment scale, it appears that the proposed reforms will achieve the stated goal of increasing the proportion of benefits to more seriously injured people. The key issue with this stated goal, in the author’s opinion, is that it will be of little comfort to the persons assessed as being ‘more seriously injured’ that they are receiving out of the scheme a greater proportion of compensation than before, if each of their individual claims results in the actuality of them receiving less compensation per claim than they would have before.   It is clear from the Benefit Designs Options paper that seriously injured people will receive far lesser sums for general damages and will have an inability to capitalise future claims for other heads that are presently available. Subject to how many additional claimants enter the scheme, by virtue of it being opened up to drivers at fault, beyond those catered for under the $5,000.00 limit pursuant to the Accident Notification Form process, for seriously injured people to receive a greater proportion of the overall benefits available to all injured persons, anyone with a minor to moderate injury will necessarily need to receive some fraction of the compensation previously available to them – which appears to be the clear scheme design.

In relation to the second stated goal of reform, reducing the time it takes to resolve a claim, it is difficult to see how any injured person, whether having injuries deemed to be minor, moderate or warranting the descriptor ‘more seriously injured’ can benefit from timeframes for cases being necessarily reduced. That is, under the present scheme, all innocent victims of accidents due to the fault of others are able to receive interim payments for medical expenses and for wage loss due to financial hardship and must allow a longer period to receive the balance of damages available as stabilisation of injuries under the medical guidelines is paramount for properly determining future impacts upon earning capacity, requirements for medical treatment and for domestic assistance. Forcing claimants to finalise claims without legal representation in order to achieve ‘claims velocity’ is likely to necessarily cause claims to be closed for persons before any opportunity is available to properly assess the longer term effects of their injuries. This appears to be a significant basis of concern for persons deemed to have minor to moderate injuries.

The third stated goal of reform is to reduce the opportunity for claims fraud and exaggeration.

To this extent, the Government should be congratulated on introducing a fraud task force for the purposes of achieving this end. One may be entitled to be more circumspect about praising media announcements to the effect that fraud is costing the NSW CTP Scheme in excess of $400,000,000.00 annually.   It is inherent in discussing the fraud element of any compensation scheme, that the extent of fraud can only ever be estimated. That is, if fraud were able to be measured with accuracy, there ought to be steps taken in order to address those responsible for the fraudulent activities and the discussion of the extent and cost of fraud in the scheme reflective upon statistics compiled referable to actual documented cases.

In any event, the introduction of the fraud task force is of such recent occurrence, that it appears premature to force upon innocent victims of motor accidents a reduced compensation scheme before the longer term work of the fraud investigation task force is known and understood.

The Government has taken positive steps to promote the reporting of suspected fraudulent claim activities.

Concern attaches to the extent to which the proposed scheme reform can eliminate or reduce fraud.

To a large extent, the policing of fraud has been within the province of the insurers who have derived on average 19% profit per annum for operating under the licensed conditions pertaining to the NSW CTP scheme. It would not appear unreasonable to suggest that the insurers would increase their activity to deter, monitor and report fraudulent claims.

It is unclear as to how the introduction of a no-fault scheme will deter fraud. The experience in the United Kingdom with the introduction of a no-fault scheme appears to indicate that opportunities for fraud actually increase in a no-fault environment. That is, the initial accident reporting procedures and ease with which persons can obtain entrance to the scheme are consistent with persons of mala fides electing to chance their hand to obtain compensation payments on a repeated basis.

In relation to the goal of reducing the cost of green slips, it is still not the case that any Government representative has guaranteed that premiums will reduce by way of response to introduction of proposed scheme reforms.

It appears reasonable to assume that by mere virtue of its existence, the fraud task force recently set up by the Government will reduce the tendency of some persons to attempt claims exaggeration or fraud and will have a significant effect on systemic attempts by any networks of persons to initiate fraudulent claims.

On that basis alone, it would appear prudent in relation to allow for the further passage of time before imposing wholesale change upon the scheme.

Why Do I Pay for a Green Slip?

NSW motorists of registered vehicles pay green slips because it is compulsory to do so. The compulsory third party system was introduced many decades ago in order that there be protection to motorists from law suits and to ensure that persons injured by motorists can have the certainty of there being an insurance policy behind any necessary claim for compensation.

The green slip payment in NSW also covers persons injured in circumstances where injuries are caused by an unregistered or unidentified vehicle – the Nominal Defendant Scheme.

The Nominal Defendant meets compensation claims by appointing a licensed CTP insurer to deal with such claims commensurate with its percentage market share overall.

Is CTP Insurance Expensive?

The answer to the question largely depends upon what a person receives in exchange for paying the compulsory third party premium.

Under the proposed new system, there will necessarily be many more Claimants than presently under the existing scheme.

For this to occur and for there to be no significant premium increase as a result, it follows necessarily that each injured person (whether innocent or at fault) will receive compensation that is some fraction of what innocent (not at fault) victims presently receive under the existing scheme.

A green slip does not hold much value for an injured person if they are unable to receive adequate compensation for injuries and are forced out of the compensation scheme due to a unilateral review of entitlement to wage loss, as appears to be proposed.

The Government’s own internal report (published by State Insurance Regulatory Authority) into the review of insurer profits in the scheme, indicates that in real inflation adjusted terms, green slip premium prices “are comparable to those of fourteen years ago”. This report, published by SIRA of the independent review of insurer profit within the scheme, is publicly available.

The report needs to be read in the context of the broadened coverage that is provided by way of categories of claimants under the scheme presently by virtue of introduction of blameless accident provisions and the no fault compensation scheme that already exists up to the sum of $5,000.00 for drivers at fault (all of which was introduced during the fourteen year period referred to). That is, presently, persons injured in motor accidents (including usually a motorist who in turn pays for a CTP premium) is getting more coverage out of the present compensation system for the same price in real terms.

The Injured Persons Association in 2013, when writing to the then Acting Minister for Finance, Andrew Constance MP, pointed out that over a longer period of time, the average premium from 1988 to 2013 had increased by only 60% to an average of $550.00. The CPI had increased 120% over that same period.

In nominal terms, as well as in relative terms, CTP insurance is cheaper than ensuring a motor vehicle comprehensively for property damage and the coverage, in real terms, is much greater.

Has Anyone Made Submissions Regarding Changes to be Made on Behalf of the Insured to Date?

Submissions were allowed to be publicly made by any interested person at the invitation of SIRA in relation to proposed scheme reform.

Submissions were made by and on behalf of the usual ‘stakeholders’.

It appears obvious that the most numerous stakeholders – the millions of premium paying motorists in NSW and the tens of thousands of persons effected directly and indirectly by motor accident related injuries in NSW each year, have not been adequately consulted. Most individuals do not properly understand what they will lose in terms of legal rights and insurance coverage by way of the proposed claims.

The first time that most people will find out about the true extent and consequence of the proposed change is when they have to make a claim in respect to injuries that affect their ability to work and provide for family members.

Aside from the noticeable increase in advertising by insurance companies promoting income protection insurance policies, there appears to have been no real step taken to adequately warn innocent victims of motor accidents of an increased need to consider taking out additional insurance policies such as income protection policies and sickness and accident policies in order to offset the harsh effects of the proposed legislation on compensation rights.

It appears likely that tens of thousands of individuals including those who rely directly upon bread winners within the family will be adversely affected within twelve months of the introduction of any legislation that purports to offer less than basic and fair compensation pursuant to the basic compensation principle that underpins the common law.

This appears to be yet another reason for the State Government to allow more time to elapse before hurriedly putting through proposals that appear to be patently harsh and disadvantageous to the majority.

In discussions between the ‘stakeholders’, as opposed to the members of the public who have no idea about the true nature of the proposed changes, it has been observed that the vast majority of citizens within NSW would prefer to sacrifice a potential saving of $2-3 per week in green slip pricing to remain with proper common law based compensation, rather than risk the financial perils of being unable to meet mortgage payments and other necessary payments that may occur in circumstances where persons are forced out of the system with inherent residual restrictions that effect their earning capacity, both short term and long term.

Submissions have been offered by various bodies including the Australian Lawyers Alliance, DRIVE, The Law Society of NSW and the Bar Council.

The submissions have ranged on focusing on the historical super profits made by insurers under the scheme with the suggestion that this ought to be the only area of focus for legislators in formulating any renewed CTP legislation. The submissions offered by persons purporting to represent injured persons in NSW have included representations to the Government that it would be appropriate to set capped legal fees for claims which have less than a certain quantum value (the quantum suggestions have ranged from $30,000.00 upwards to $50,000.00).

Has Anyone Made Submissions on Behalf of the Insurers to Date?

Submissions have been made on behalf of various insurers in relation to schematic change.  These submissions have focused on a suggestion that all injuries that are not catastrophic injuries can be successfully rehabilitated within a relatively short time. The submissions also point to claims exaggeration and fraud.

How Do Insurers Manage Claims Against People Without Legal Representation?

Duty to shareholders

Insurers have a duty to shareholders, not road users and certainly not injured persons who need to make claims for motor accident compensation.

Insurers are not criticised for fulfilling their primary obligation, which is to maximise profits for shareholders. It is simply necessary to acknowledge that obligation exists when giving consideration to how insurers are expected to behave when provided with a claims scheme that enables them to make unilateral decisions in relation to whether claimants remain within the scheme without fear of the claimants obtaining access to justice through legal representation.

The suggestion by insurers that rehabilitation is the way of solving problems for all persons injured on the road except for those most seriously injured with injuries greater than 10% whole person impairment may not fully acknowledge the necessary tendency of those doctors who are empanelled by insurers to take steps to ensure they remain on the panel of providers after the next internal review by insurers.

SIRA proposes, with the suggested scheme changes that appear to be on the table, to oversee and manage the actions of the insurers through adherence to guidelines through its staff (which will need to increase in numbers by a multiple that is difficult to estimate). The experience of thousands of injured workers in the workers compensation scheme in an analogous context pertaining to merit reviews performed by insurers in relation to wage loss disputes will be the subject of an Upper House inquiry in relation to the workers compensation scheme in October this year.

Again, when considering who the real stakeholders are in relation to the CTP scheme, it is important to acknowledge that insurers must account to their shareholders, not to their member road users.

Involvement of Compensation Lawyers

Legal costs have understandably been the focus of much of the discussion and perhaps form the major impetus for the proposed scheme reforms. Less than twelve months has passed since SIRA introduced compulsory reporting of solicitor/client costs and disbursements by lawyers in NSW representing injured plaintiffs.

The precise data has not been released in this regard.

We would suggest that, as with the introduction of the fraud investigation squad, the mere existence of the reporting requirements ought to be such that any untoward practises by a few would have ceased in a way that requires the passage of at least a further twelve (12) months before any probative review of the figures can be provided in terms of scheme outlook (and hopefully published).

On the statistics front, the SIRA report in to the independent review of insurer profits in the scheme notes that for claimants with legal representation under the scheme as it presently exists, the gross pay out figure has on average been 8 times greater than for claimants who are unrepresented. This would appear to be a fairly logical stand upon which to support the fact that individuals require legal representation when dealing with insurance companies.

Scheme Stability

It is acknowledged by most observers of the scheme, including the minister introducing the scheme reforms, that scheme stability is critical to the ability of the insurers to predict their profits and in turn, adequately price green slip premiums to cover the cost of claims.

In actual fact, according to SIRA’s own documentation (admittedly in the context of analysis of insurer profits, not reducing Claimant’s rights) the Scheme has been stable in terms of pricing relative to inflation for in excess of 14 years, despite broadened coverage that has occurred with introduction of blameless accidents and the no fault entitlements under the Accident Notification Forms.

Social Consequences

It is entirely predictable that injured persons under the proposed CTP Scheme will be removed from the Scheme without being adequately compensated pursuant to common law principles in relation to any future heads of damage.

Persons exited from the proposed new scheme will have their needs met by the tax payer, if they are entitled to receive Centrelink benefits.

Persons medical and financially able to obtain income protection policies will be the few not adversely affected by the changes.

Mark Nelson, BPC Lawyers

Proposed Motor Accident Compensation Law Changes

Proposed Motor Accident Compensation Law Changes

Australians Alerted To Proposed Changes To Motor Accident Compensation Laws – Press Release

BPC Lawyers is a leading Sydney legal practice and accredited specialists in Personal Injury law. In a recent communiqué they make all Australians aware of the proposed changes to motor vehicle compensation laws.
The Minister for Innovation and Better Regulation, the Honourable, Victor Dominello MP announced in a media release on 2 March 2016 that the Government will be establishing a task force to counteract CTP fraud in New South Wales and will also conduct a review of the present CTP scheme. The Government has a clear agenda to reduce the cost of a green slip in New South Wales and is keen to see that a high proportion of the green slip premium goes towards helping the injured person. Statistical information indicates only 45% of the premium is paid in direct claimant benefits and furthermore, 19% of the premium represents profit for the licensed insurers. The Government has put on the table a number of potential reform options which are as follows:

Option 1 – retain the current common law, fault based scheme with process improvements;

Option 2 – retain the current common law, fault based scheme with adjustments to benefit levels as well as process improvements;

Option 3 – move to a hybrid no fault, defined benefit scheme with common law benefits retained in parallel; and

Option 4 – move to a fully no fault, defined benefit scheme with caps, thresholds and no common law.As these discussions have progressed since March 2016, it appears the Government is in favour of option 3.

This proposed scheme is similar to the scheme presently operating in Victoria which is managed by the Transport Accident Commission. BPC Lawyers believe it is important to note the present scheme in New South Wales is already a hybrid scheme with no fault benefits paid to a significant number of classes of persons injured in New South Wales. For example, upon lodgement of the Accident Notification Form payments are made to injured persons up to the sum of $5,000.00 for medical expenses. There is also the blameless accident legislation, Lifetime Care and Support Scheme and no fault coverage for children. In the Victorian scheme there are no payments made for gratuitous domestic assistance. At the present time in New South Wales, persons who are injured can receive assistance from friends or relatives with self-care and domestic chores but such assistance must be not less than 6 hours per week and for a period not less than 6 months. The rate is legislated by statute at $29.44 per hour and is CPI indexed.

If the present legislation is changed, BPC Lawyers believes there is cause for concern in ascertaining the entry level or threshold for access to common law benefits. Most objective observers of the proposed changes are concerned that the CTP scheme will not provide adequate economic loss compensation in most cases – meaning that those who cannot afford to pay for separate income protection insurance will be left ‘high and dry’.

Mr Mark Nelson, Partner of BPC Lawyers said, “more than ever, injured persons need to consult experienced practitioners in the area of personal injury litigation and seek the assistance of solicitors who have many years’ experience in personal injury claims.”

BPC Lawyers offers the services of accredited personal injury law specialists who are ready to assist members of the community.

About BPC Lawyers

BPC Lawyers is a leading Sydney legal practice with accredited motor accident compensation lawyers. The practice has its origins as a legal practice started by Barry Beilby in 1975. The business expanded significantly in 1993 when the practice merged with that of Flannery Mura & Costello, a firm specialising in Compensation law.

For more information, please visit The website

Media Contact

BPC Lawyers
Mr Mark Nelson
Address: Level 18, 201 Elizabeth St., Sydney, NSW Australia 2000
Phone: +61 (02) 8280 6900

BPC Lawyers Recognised by Doyles Guide

BPC Recognised by Doyles Guide

PRESS RELEASE

BPC Recognised by Doyles Guide

BPC have again been recognised by the Doyles Guide for our expertise in personal injury.

The Doyles Guide is an independent organisation that ranks law firms based on peer surveys as well as extensive telephone and face to face interviews with clients, peers and relevant industry bodies. It is pleasing for BPC to be recognised by Doyles, as personal injury lawyers’ rankings are compiled by feedback from defendant insurance solicitors.

We believe having the respect of colleagues gives BPC an edge for our clients that other firms cannot provide.

In 2015 and 2016, BPC received the following rankings:

Leading Medical Negligence Law Firm (Plaintiff) – 2015, 2016;
Leading Motor Vehicle Accident Compensation Law Firm – 2015, 2016;
Leading Workplace Injury & Compensation Law Firm (Plaintiff) – 2015 / Recommended Workplace Injury & Compensation Law Firm (Plaintiff) – 2016; and
Leading Public Liability Law Firm (Plaintiff) – 2015, 2016.
LAWYERS

Courtenay Poulden

Leading Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Recommended Motor Vehicle Accident & Injury Compensation Lawyers (Plaintiff) – NSW, 2016
Scott Hall-Johnston

Recommended Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Recommended Medical Negligence Lawyers (Plaintiff) – NSW, 2016
Recommended Work Injury & Accident Compensation Lawyers (Plaintiff) – NSW, 2016
Mark Nelson

Leading Public Liability Compensation Lawyers (Plaintiff) – NSW, 2016
Leading Motor Vehicle Accident & Injury Compensation Lawyers (Plaintiff) – NSW, 2016
Kate Henderson

Leading Medical Negligence Lawyers (Plaintiff) – NSW, 2016
Leading Medical Negligence Lawyers (Plaintiff) – NSW, 2015

About BPC Lawyers

BPC Lawyers is a leading Sydney legal practice with accredited motor accident compensation lawyers, specialist workers compensation lawyers. The practice has its origins as a legal practice started by Barry Beilby in 1975. The business expanded significantly in 1993 when the practice merged with that of Flannery Mura & Costello, a firm specialising in Compensation law.

For more information, please visit The website.

Contact Info:
Name: Mark Nelson BPC Lawyers
Address: Level 18, 201 Elizabeth St., Sydney, NSW Australia 2000
Phone: +61 (02) 8280 6900

PRESS RELEASE

Australians Alerted To Proposed Changes To Motor Accident Compensation Laws

BPC Lawyers is a leading Sydney legal practice and accredited specialists in Personal Injury law. In a recent communiqué they make all Australians aware of the proposed changes to motor vehicle compensation laws.
Personal Injury Lawyers Sydney
The Minister for Innovation and Better Regulation, the Honourable, Victor Dominello MP announced in a media release on 2 March 2016 that the Government will be establishing a task force to counteract CTP fraud in New South Wales and will also conduct a review of the present CTP scheme.The Government has a clear agenda to reduce the cost of a green slip in New South Wales and is keen to see that a high proportion of the green slip premium goes towards helping the injured person.

Statistical information indicates only 45% of the premium is paid in direct claimant benefits and furthermore, 19% of the premium represents profit for the licensed insurers.

The Government has put on the table a number of potential reform options which are as follows: Option 1 – retain the current common law, fault based scheme with process improvements; Option 2 – retain the current common law, fault based scheme with adjustments to benefit levels as well as process improvements; Option 3 – move to a hybrid no fault, defined benefit scheme with common law benefits retained in parallel; and Option 4 – move to a fully no fault, defined benefit scheme with caps, thresholds and no common law.

As these discussions have progressed since March 2016, it appears the Government is in favour of option 3. This proposed scheme is similar to the scheme presently operating in Victoria which is managed by the Transport Accident Commission.

BPC Lawyers believe it is important to note the present scheme in New South Wales is already a hybrid scheme with no fault benefits paid to a significant number of classes of persons injured in New South Wales. For example, upon lodgement of the Accident Notification Form payments are made to injured persons up to the sum of $5,000.00 for medical expenses. There is also the blameless accident legislation, Lifetime Care and Support Scheme and no fault coverage for children.

In the Victorian scheme there are no payments made for gratuitous domestic assistance. At the present time in New South Wales, persons who are injured can receive assistance from friends or relatives with self-care and domestic chores but such assistance must be not less than 6 hours per week and for a period not less than 6 months. The rate is legislated by statute at $29.44 per hour and is CPI indexed.

If the present legislation is changed, BPC Lawyers believes there is cause for concern in ascertaining the entry level or threshold for access to common law benefits. Most objective observers of the proposed changes are concerned that the CTP scheme will not provide adequate economic loss compensation in most cases – meaning that those who cannot afford to pay for separate income protection insurance will be left ‘high and dry’.

Mr Mark Nelson, Partner of BPC Lawyers said, “more than ever, injured persons need to consult experienced practitioners in the area of personal injury litigation and seek the assistance of solicitors who have many years’ experience in personal injury.

Lodging a Worker’s Compensation Claim form. Contact BPC Lawyers for Consultation.

Lodging a Worker’s Compensation Claim form – when and why? 

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.

Injuries suffered in the course of employment can often need little by way of time off work or treatment. However, even the most innocuous incident can lead to considerable financial and medically disastrous results. They can, at first, seem not to have caused much by way of damage. However, it can take considerable time for symptoms to materialise or an employee may fear for their job if they make a claim.

When?

It’s imperative that workers lodge incident reports and workers compensation claim forms for all incidents to which they have suffered injury. These forms are available from your employer and must be provided upon request. It is also advisable to seek medical attention by your local medical physician so that your medical condition is documented and you obtain an opinion as to the severity of your condition. This claim form must be as comprehensive in detail as possible, including all injuries suffered, even when the symptoms seem mild at the time.

Why?

The Workers Compensation legislation sets time limits for the lodgement of claims. Any delay could mean that you lose the right to compensation. You must inform your employer that you have suffered an injury as soon as possible: Section 254 Workplace Injury Management and Workers Compensation Act 1998 (NSW).

If you did not inform your employer and wish to make a claim, you must show special circumstances, including:

  • That the employer hasn’t been placed into a position of disadvantage in responding to or dealing with your claim,
  • You did not tell your employer due to your “ignorance, mistake, absence from the State or other reasonable cause”,
  • Your employer knew about your injury anyway, or
  • Your employer reported the circumstances to the nominal insurer.

You must also then lodge your claim for compensation within 6 months of the injury: Section 261 Workplace Injury Management and Workers Compensation Act 1998 (NSW).

If you lodge a claim after the six month period, you must show special circumstances, including:

  • You didn’t lodge you claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND you made the claim within 3 years of your injury;
  • You didn’t lodge a claim in time due to some ignorance, mistake, absence from the State or other reasonable cause AND your work incident has caused serious and permanent disablement;
  • The insurer accepts your claim and fails to mention this issue, or
  • Your injury was only realised after the incident and you have complied with one of the conditions listed above.

Conclusion

We strongly advise you to immediately lodge a claim for workers compensation and notify your employer of any injury. This will ensure your rights to compensation aren’t taken away from you, especially if there is a delayed or late onset of a serious condition. Indeed, I have come across many situations where employers have attempted to convince workers not to make workers compensation claims, instead agreeing to meet their time off work and treatment expenses themselves. Whilst workers may wish to keep their employer happy for reasons of job security, it must always be borne in mind that such agreements with your employer are far from secured long term. Given the protection from termination for 6 months from your claim (Section 248 Workers Compensation Act 1987) and the common uncertainty as to how long your condition may take to recover, the prudent course must be to lodge a claim for workers compensation. Should your condition require surgery, or seems to be causing you serious and permanent financial and medical hardship, you should contact our office in order to seek advice as to what other rights you might have to compensation.

Timothy Driscoll LLM (Sydney) Associate of BPC 4 October 2017

Want to Assess damages in Nervous Shock Claims. Contact BPC Lawyers Today.

Assessment of damages in Nervous Shock Claims

BPC have successfully acted for many plaintiffs in respect of nervous shock claims pursuant to the provisions of the Civil Liability Act 2002.

Nervous shock claims can be brought by a person suffering pure psychiatric injury following circumstances that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

In order to succeed in a nervous shock claim, it is necessary to obtain medical evidence diagnosing a recognisable psychiatric condition which must be more than a normal grief reaction.

Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock as follows:-

Section 30(2)

The plaintiff is not entitled to recover damage for pure mental harm unless:

  • the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or 
  • the plaintiff is a close member of the family of the victim.”

A reference to a “close member of the family” is limited to a parent of the victim, the spouse or partner of the victim, a child or step child of the victim, or a brother, sister, half-brother or half-sister, or step brother or step sister of the victim.

Strict time limits apply to claims for personal injury including nervous shock claims. A 3 year limitation period is imposed in relation to commencement of legal proceedings which runs from the date of the relevant event.

It is often difficult to assess the amount of damages in nervous shock claims. BPC successfully acted on behalf of a mother who suffered nervous shock as a result of the traumatic events surrounding the birth of her child. As a result of medical negligence, the plaintiff’s son is profoundly disabled. BPC also acted on behalf of the child in separate proceedings successfully achieving a substantial confidential settlement to cover his extensive lifetime care, medical treatment and therapy needs and other associated losses.

The decisions of the Supreme Court of New South Wales and the New South Wales Court of Appeal in relation to the mother’s claim are summarised below to provide some guidance in relation to the assessment of damages in nervous shock claims and personal injury claims for reduced earning capacity.

Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863

This case concerned the psychological impact of the defendant’s negligence during the birth of the plaintiff’s son who was profoundly disabled and requires lifetime care and support due to his birth related injuries. The plaintiff pursued damages for nervous shock including economic loss as she had been unable to return to employment following the birth of her significantly disabled son.

At a very late stage of the proceedings, the defendant finally admitted breach of duty of care. It was left for the Court to consider the extent of damage suffered by the plaintiff and the quantum of damages arising from the negligence.

Both parties tendered medical evidence and the psychiatric and psychological experts participated in a joint conclave and produced a joint report prior to the trial. These experts also gave evidence concurrently during the trial. The plaintiff relied on expert evidence from Dr Stephen Allnutt, psychiatrist and Ms Rafaela Luca, psychologist. The defendant relied on evidence of Dr Lisa Brown, psychiatrist. Ultimately, the trial judge preferred the opinions of Dr Allnutt and Ms Luca and rejected the expert opinion of Dr Brown whom the trial judge found under appreciated the magnitude of the plaintiff’s injuries.

The plaintiff claimed damages for economic loss arising from her psychiatric injuries. The defendant submitted that the plaintiff had made a choice not to return to work so that she could care for her disabled son and that it was open to her to employ carers and return to some form of employment. This issue was addressed by lay evidence and the medical experts. Dr Allnutt and Ms Luca gave evidence in respect of the plaintiff’s preoccupation with her disabled son, difficulty concentrating on other tasks and her related anxiety and inability to trust others to care for him. The plaintiff lacked trust in the medical profession and felt strongly that she had to be available to her child when required. There was a constant risk that her son’s condition would deteriorate at short notice including vulnerability to seizures and hospital admissions requiring a high level of vigilance and constant concern and attention. This heightened, ongoing stress was not conducive to recovery and any work environment would require flexible work practices and a supportive employer.

The trial judge found that there was no issue that the plaintiff would have returned to her pre-injury full time employment at the expiration of her 12 months maternity leave but for her psychiatric condition. The trial judge found that with appropriate treatment and support, the plaintiff could probably work part time but practical issues limited her return to work. The trial judge considered that the plaintiff would require at least 18 months of treatment and then she assessed the plaintiff’s working capacity to be no more than 50%. The trial judge then considered the realistic prospects of the plaintiff exploiting her theoretical earning capacity and concluded that those prospects were effectively non-existent. Accordingly, the trial judge determined that damages for future economic loss should be assessed on the basis that the plaintiff would not be able to exploit any residual earning capacity before retirement age. Significantly, despite the fact that the Court found that the plaintiff had a theoretical earning capacity, no evidence was led by the defendant of the availability of work which would meet her capacity. Accordingly, the plaintiff received a full award for future economic loss and loss of superannuation calculated on the basis that she had no ability to exercise any residual earning capacity for the remainder of her working life.

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 per Simpson JA with Macfarlan and Meagher JJA agreeing

The defendant appealed the above decision of the Supreme Court of New South Wales. The New South Wales Court of Appeal has provided a helpfully detailed headnote, summarising the appeal as follows:-

“The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what employment remained open to the respondent. Further, it was contended by the appellant, that the primary judge ought to have taken the approach outlined in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 which concerns the assessment of the chance that circumstances other than the defendant’s negligence would, in any event, have brought about the injury of which the plaintiff complains.

In relation to the first basis, the Court was satisfied that the primary judge was not in error in accepting the opinions of Dr Allnutt and Ms Luca over that of Dr Brown. The Court considered that the appellant had not advanced sufficient reasons to prefer the opinion of Dr Brown, particularly given that the weight of the remainder of the evidence did not support that opinion.

In addressing the second basis, the Court affirmed the approach taken by the primary judge in assessing future economic loss. In particular, the Court affirmed that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit any residual earning capacity lies on the defendant, taking into account all of the circumstances that apply to the plaintiff. No error was demonstrated by the appellant in this regard.

The Court held that assessment on Malec principles was not appropriate, there being no issue that the appellant’s negligence was the cause of the respondent’s condition, and it was not part of the appellant’s case that there was a chance that the respondent would, without the appellant’s negligence, have suffered disabling psychiatric injury.”

In light of the above, the appeal was dismissed on the following basis:-

  1. The primary judge was not in error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown.
  2. The primary judge was not in error in not applying the approach discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. The chance that the respondent would have developed the injury was accounted for in the conventional allowance made for “vicissitudes”.
  3. The primary judge was not in error in casting an onus on the defendant to prove that the plaintiff could exploit any residual working capacity.
  4. There is not a sufficient basis to conclude that the award of damages to the respondent should be reduced due to any settlement reached on behalf of her son.

BPC successfully acted on behalf of the plaintiff in relation to the above trial in the Supreme Court of New South Wales at first instance and was successful in the New South Wales Court of Appeal in having the appellant’s appeal dismissed.

BPC has also successfully acted for many plaintiffs suffering nervous shock and psychiatric injuries as a result of negligence. If you believe you have a claim for nervous shock, we can offer a complimentary consultation to discuss your options and to provide legal advice in relation to your prospects of success in pursuing a claim. We confidently back ourselves to represent you with a “no win, no fee” guarantee.

Please do not hesitate to contact our offices in order to discuss a potential claim. 

Kate Henderson

28 August 2017

Can I be fired whilst on Workers Compensation? Contact BPC Lawyers to know.

Can I be fired whilst on Workers Compensation?

Apart from the payment of workers compensation, an employer has an obligation to rehabilitate the injured worker, including, where able, to facilitate the worker into another position; whether that be within or out of the organisation.

However, as is becoming more apparent, employers are finding it easier to simply get workers off their books than having to deal with their rigorous obligations for the payment of compensation, rehabilitation and redeployment of workers.

So if you’re a worker who has suffered an injury at work and your employment has been terminated, what can you do? What rights are you afforded? 

An injured worker is afforded some protection from termination under Part 8 of the Workers Compensation Act 1987 (NSW). 

The extent of protection will however depend upon: 

  1. Whether you’re fit to perform your pre-injury job, and/or
  2. The reasons for why your employer terminated your employment.

Unfit to work in pre-injury employment

If you cannot do the inherent requirements of your job, your employer can terminate you.

However, it is a criminal offence for your employer to terminate your employment because you’re unable to perform such requirements because of a work injury IF they terminate you within 6 months from when you first become unfit for your pre-injury job.

Whilst this prohibition is a criminal provision, the conduct of your employer in terminating you because you make a claim for workers compensation will create a civil liability upon your employer, to which you can sue for modest compensation under the protections found in the Fair Work Act (Cwth).

This protection is only available to you if you comply with any reasonable request the employer makes to send you for a medical examination on the matter.

Fit to work in pre-injury employment

If an employer terminates your employment because you’re unfit for work (so they allege) due to a work injury which you’re fit to perform, then another remedy might be available to you.

If, after termination, you send your employer a medical certificate certifying you’re able to do you pre-injury job or another job up to the same vantage point as your old job, then the employer must reinstate you into that position which you have capacity.

Interestingly, if your employer wishes to allege that you’re not entitled to reinstatement as your injury is not work related, then they must overcome a presumption that says otherwise.  That is, it is up to them to rebut a presumption that your termination was because of some non-work related condition.

Conclusion

The general rule has always been that an employer can terminate your employment for any reason at any time.

That still remains the general proposition at law.

But depending on the reasons or reasonableness for their decision might determine if and to what extent you can seek a Court or Tribunal to correct the effect of this decision.

For workers injured in the course of their employment, the Workers Compensation Legislation works (or at least is designed to work) hand in hand with the Fair Work Act 2009 (Cwth) to provide assistance above that of the ordinary worker who has had their employment terminated. However, as is seen in this article, the Court/Tribunals can have great difficulty in providing a fruitful remedy to an employer’s termination notice.

The question is what avenue best achieves the best outcome for the worker?

This is a question of fact and degree of the particular case, to which will need assessment by a competent legal advisor within the area.

If you have been seriously injured at work and are worried about the future in the workforce, then you should contact our office right away and speak to one of our accredited specialists.

Timothy Driscoll

Associate

14 August 2017

When is an accident partially your fault? Contact BPC Lawyers.

When is an accident partially your fault?

Contributory Negligence

Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.  

The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered.  The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said: 

An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”  

Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said: 

“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”  

As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.  

Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002.  The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.  

Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed. 

Scott Hall-Johnston 

BPC

Personal Injury Motor Accident Claims

Personal Injury Update

Recent Compensation Case

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

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

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

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

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

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

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

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

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

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

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

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

Can your Personal Injury Claim continue after you die?

Can your Personal Injury Claim continue after you die?

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

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

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

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

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

General damages, 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

What Goes On At BPC

What Goes On At BPC

I thought it might be a good time to acquaint some of our readers with the type of work that we are doing here at BPC.

When people talk about compensation Lawyers they think injuries at work and on the road.  We are certainly a major law firm in compensation claims of those types.

We do however act in a wide variety of matters and I thought it might be useful to give readers a note of some of the cases we are currently involved in:-

  • We are acting for a lady who suffered severe injuries when she fell on a boat whilst whale watching in the Great Barrier Reef.
  • We are acting for the family of a baby suffering from Cerebral Palsy which we argue was caused due to asphyxia during the birth process which could have been prevented had the doctors paid greater attention.
  • We are acting for a young man who unfortunately lost one of his limbs after an explosion of a keg on licensed premises.
  • We are acting for a client who suffered injury when she was directed by her personal trainer to undergo a type of fitness training that was beyond her capacity resulting in her suffering a very significant hip injury.
  • We are acting for a lady who suffered a leg injury when she slipped and fell on Council premises which had become very slippery as a result of patrons bringing wet umbrellas and shoes through the entrance. The Council employees did not provide any warning signs or matting to provide a safe floor surface.
  • We are acting for an English gentleman who was riding on a donut behind a speed boat off an island in Queensland when he was thrown outside of the wake and became entangled in the donut causing him injury.
  • We are acting for a young lady who was playing in an indoor netball competition. The court had previously been used a gymnastics organisation who had left chalk on the floor causing her to slip and suffer an injury to her knee which required surgery.
  • We are acting for a well known performer who suffered a bowel perforation following a simple hospital procedure. It was not recognised in time leading to her getting sepsis which has had serious consequences to her overall health.

These examples are given to illustrate that there are wide ranging circumstances in which a client may have an entitlement to compensation.  We are experienced in all areas of public liability and medical negligence and would be happy to deal with any enquiry on the usual “no win, no fee” basis.

Courtenay Poulden

24 March 2017

Whiplash associated disorders

Whiplash associated disorders

“Whiplash associated disorders – (WAD)”

A soft tissue injury occurs due to trauma to the human body when the tissues that connect, support or surround other structures and organs of the body are damaged.  By definition, soft tissue includes muscles, tendons, ligaments, fascia nerves, fibrous tissues, blood vessels and synovial membranes.

Usually, the spine and the shoulders are often affected in this type of injury.

Immediate disability does follow injury to ligaments and healing, from a functional view point is seldom perfect.

Since soft tissue injury always heals with scar or fibrous tissues, it lacks the viability or elasticity of the original tissue, therefore soft tissue is always weaker after injury (whilst bone will be strengthened by scar tissue).

On occasions, some medico legal doctors imply that a whiplash associated disorder can be detected using an MRI scan.  There is research to the contrary.

There was a study conducted in Sweden in 1994 where 39 consecutive cases of whiplash injury of the neck were examined clinically and with an MRI at a mean of 11 days after trauma.

26 of these showed changes on MRI with disc lesions in 25 cases, 10 of which were classified as disc herniations and a muscle lesion in one case.  All of these persons had neck pain or headache.

29 cases had neurological deficits, mostly sensibility disturbances.  22 of the 26 cases with pathological MRI had neurological signs, as had 7 of the 10 cases with disc herniation.

The relationship between the MRI findings and the clinical symptoms and signs was poor.

The study was undertaken to evaluate if MRI within two days of a motor vehicle accident could reveal pathology of importance for understanding long term disability after whiplash neck sprain injuries.

As part of a prospective study, cervical and cerebral MRI was performed on 40 neck sprain patients with whiplash injury after car accidents.

The imaging was done with two days of the injury to make sure that any neck muscle bleeding, oedema or other soft tissue injuries could be detected.

The MRI findings from the patients were both correlated to report symptoms six months after the accident and compared to a control group of 20 volunteers.

The MRI of both the brain and neck revealed no significant differences between the patients and the control group.

When the patients were grouped according to the main MRI findings at intake and compared according to the development of subjective symptoms reported by the patients, the only significant difference was more headaches at six months in the groups with disc pathology or spondylosis when compared to the group with no pathology.

MRI scan within two days of the whiplash neck sprain injury could not detect pathology connected to the injury nor predict symptom development and outcome.

In conclusion, pain residuals, which may last for months or even years, may be due to the scar tissue which has replaced the previous normal tissue.  Its inelastic quality can cause pain with certain movements.  The lengthy period of healing may be explained by the fact that it takes a long time for soft tissue to heal and mend.

D R Ford

10 March 2017

Nervous Shock Claims

Nervous Shock Claims

Workplace incident at Barangaroo – Nervous Shock Claim

Lawyers have represented vast numbers of plaintiffs in successful nervous shock claims pursuant to the NSW Civil Liability Act 2002 since its inception.

Nervous shock claims can be brought by persons who have witnessed, at the scene, a victim being killed, injured or put in peril if it is accepted by the Court that they have genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

If a genuine psychiatric injury is suffered by a close member of the family of the victim who was killed, injured or put in peril, they need not have witnessed, at the scene, the relevant event.

The Civil Liability Act defines a “close member of the family” of a victim to include a parent of the victim or other persons with parental responsibility for the victim, or the spousal partner of the victim, or a child or step-child of the victim or any other person for whom the victim who has parental responsibility. The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters.

A “spouse or partner” is defined as a husband or wife or a defacto partner.

The Diagnostic Statistic of Psychiatric Injuries is used by qualified psychiatrists to report to the Courts on behalf of parties to litigation in relation to the effect that a particular event has had upon any witness to an event causing psychiatric injury.

Strict time limits apply in relation to bringing a claim for damages for personal injury, including psychiatric injury, pursuant to the Civil Liability Act. A three year limitation period is imposed in relation to commencement of court proceedings, which runs from the date of the relevant event.

It is expected that in relation to the unfortunate death of an innocent worker at Barangaroo in March 2017, there will be a coronial inquest that will shed light upon the circumstances that led to the death.

The findings of a coroner should not be pre-empted.

Any persons who have witnessed, and been psychologically affected by the unfortunate incident at Barangaroo are advised to consult medical practitioners for appropriate treatment.

Claims for damages for pure mental harm or nervous shock should only be brought by individuals who have suffered very significant psychological injury as a result of a particular event. The court process usually endures for beyond 18 months if matters are incapable of settlement.

The Civil Liability Act is designed to provide appropriate compensation to persons with significant injuries that negatively impact upon their ability to earn an income and which give rise to significant medical expenses.

The Courts, quite rightly, do not readily entertain cases that do not involve genuine psychiatric injury, as was intended by the legislators when the Civil Liability Act NSW 2002 was enacted.

BPC has acted for injured plaintiffs for in excess of 35 years.

If you or one of your loved ones is affected by psychiatric injury which remains unresolved despite medical treatment, please contact one of our accredited specialists in personal injury law in NSW for a free initial consultation.

BPC act in nervous shock claims on a “no win/no fee” basis.

In cases involving serious injury or death, there will usually be a coronial inquest following police investigations and WorkCover/WorkSafe investigations.

BPC Lawyers have assisted family members to protect their compensation rights by appearing in numerous coronial inquests, including those involving construction site accidents and deaths.

BPC take very seriously their duty to only bring cases on behalf of persons in circumstances where there is at the very least, a reasonable prospect of success, which is consistent with our obligations pursuant to the Legal Profession Uniform Law.

Civil Claim against the Police

Civil Claim against the Police

It is acknowledged that the job of a police officer is very important to society and police officers deal with extremely difficult situations.

Police have numerous responsibilities and powers. However, circumstances sometimes arise in which physical force is used unnecessarily causing injury. These circumstances may give rise to a claim against the police if the physical force or conduct was not warranted.

The law needs to allow police officers to perform their duties without the concern of legal claims.  However,  abuse of power must also be avoided and victims must have appropriate rights in circumstances where there has been an overreaction or abuse of power.

The State of New South Wales will indemnify police officers who are found liable of a tortious act causing injury, provided that the police officer was acting within the scope of his/her employment at the relevant time. If the police officer was acting outside the scope of employment, the ability to pursue a claim against the State of New South Wales is difficult and the injured party may need to pursue the police officer personally. In such circumstances, a police officer may have insufficient financial resources to satisfy any judgment.

Pursuant to Section 6 of the Law Reform (Vicarious Liability) Act 1983, members of the New South Wales Police Force are deemed to be persons in the service of the Crown. Pursuant to Section 8 of the Law Reform (Vicarious Liability) Act 1983 and the Crown Proceedings Act 1988, the State of New South Wales is vicariously liable for torts committed by persons in the service of the Crown. An individual police officer may be joined to the proceedings if the Crown denies vicarious liability for the alleged tort.

BPC Lawyers recently acted for a plaintiff in a claim against the State of New South Wales arising from the conduct of police officers. In this case, a minor incident had arisen during a night out. Our client was not directly involved in the incident. However, she was manhandled by a number of police officers after questioning the conduct of police. Our client did not consent to being touched by any of the police officers.  However it was alleged that she was assaulted by male police officers using excessive force. Our client was forcibly walked to a police vehicle and pushed face down onto the bonnet of the vehicle.  This caused her chest and head to collide with the vehicle. Our client was then handcuffed. After being handcuffed, our client was forced face first onto the concrete footpath. Our client was then physically escorted to a police vehicle (a caged truck) and placed inside the vehicle. She was then detained at a police station for approximately 4.5 hours until she was released from custody.

The plaintiff pursued a claim against the State of New South Wales for assault, battery and false imprisonment arising from the conduct of the police officers involved. The plaintiff claimed compensatory damages, aggravated damages and exemplary damages from the State of New South Wales.

Legal proceedings were commenced in the District Court of New South Wales.  Settlement was reached between the parties prior to trial. The plaintiff received an amount of damages to compensate her for the assault/battery, false imprisonment and damage to her reputation.

Our client claimed aggravated damages on the basis that:-

  1. She was insulted in front of relatives, friends and onlookers;
  2. She was assaulted and imprisoned on a busy street;
  3. The police officers involved were bigger and stronger and she was unable to adequately defend herself;
  4. Other police officers stood by and watched without rendering assistance;
  5. Her imprisonment was both excessive and unnecessary;
  6. Her actions did not provoke or warrant the conduct of the police officers;
  7. Her imprisonment prevented her from going home to look after her family; and
  8. The police officers involved had failed to apologise to the plaintiff for their actions.

Our client claimed exemplary damages on the basis that the conduct of the police officers:-

  1. Was heavy handed, unnecessary and insulting;
  2. Was undertaken with complete disregard for the plaintiff’s rights, feelings and physical welfare;
  3. Was worsened as it was undertaken by experienced and paid police officers acting in stark indifference to their duties and obligations;
  4. Was outrageous, extreme and unlawful;
  5. Involved an abuse of police powers;
  6. Warranted exemplary damages being awarded to bring home to those responsible for the conduct of police officers, that police officers must be properly trained and disciplined to avoid such abuses;
  7. Warranted exemplary damages being awarded to reflect the disapproval of society of such conduct;
  8. Warranted exemplary damages being awarded to mark the Court’s condemnation and to act as a deterrent.

Obviously, each case is different and the conduct of police officers needs to be considered taking into account all of the relevant circumstances. The Courts have held that victims have rights of redress in circumstances where the conduct of police officers is excessive, unprovoked and unwarranted.

In the area of police misconduct, it is also possible to sue for malicious prosecution in circumstances where a person has been found not guilty by a Judge or Jury of a criminal charge or charges. However, such cases involve a high risk of failure. In summary, the plaintiff must prove the following four elements to succeed in a claim for malicious prosecution:-

  • That the prosecution was initiated by the defendant;
  • That the prosecution terminated in favour of the plaintiff;
  • That the defendant acted with malice in bringing and maintaining the prosecution; and
  • That the prosecution was brought or maintained without reasonable and probable cause.

In certain circumstances, a prosecution may be justifiably commenced however, if at some time prior to verdict, a prosecutor becomes aware of the plaintiff’s innocence and continues the prosecution, he or she can still be liable. These cases also require proof that the plaintiff has suffered some damage. “Damage” has been defined as damage being caused to the plaintiff’s reputation and/or personal property. Compensatory, aggravated and exemplary damages may be awarded in circumstances where malicious prosecution is established. Aggravated damages are commonly awarded to increase compensatory damages in malicious prosecution cases. However, the amounts awarded vary significantly depending on the circumstances of each case.

If there is strong evidence to support other torts such as false arrest, assault or battery, there may be little benefit in including a claim for malicious prosecution. This often saves a significant amount of time and legal costs as malicious prosecution actions require an exhaustive examination of the reasons for prosecuting and the evidence available for prosecution.

Kate Henderson

31 January 2017

Satisfactory Explanation For Late Motor Accident Compensation Claim

Satisfactory Explanation For Late Motor Accident Compensation Claim

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

Requirement for a “Satisfactory” explanation

 You should refer to our earlier article in relation to the making of late motor accident claims.  This paper

adds to the topic in relation to the need for an explanation not only to be full, but also to be satisfactory.

The High Court considered the meaning of satisfactory delay in Russo v Aiello [2003] 215 CLR.  At 463, Gleeson CJ said:

“What would justify a reasonable person in a position of the claimant ‘experiencing’ a delay?  It is impossible to give an exhaustive list of possible justifications.  Delay in the onset of symptoms is one example; and as an example of some relevance to this case. It is to be noted that what the Act requires is justification for the delay; not demonstration of the delay caused no harm….The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it.”

In Walker v Howard [2009] NSWCA 408 the Court of Appeal (sitting as a bench of five) considered the case of the claimant who was suffering serious brain damage.  They suggested the case gives useful guidance as to the attributes the claimant that ought be considered when applying the objective tests under s.66(2) of the Act, that is the “reasonable person in the position of the claimant” test.

Firstly, the Court said that the position of a claimant with a disability includes that disability:

“….that placement of a fictional person in that position could be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable in the claimant’s position….The phrase ‘position of the claimant’ is not limited in terms of the personal or physical characteristics of the claimant. It connotes aspects of a place and circumstances relevant to the enquiry….. It can be acceptable that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the ‘position of the claimant’….. to the extent that the test requires the subjection of the reasonable person in the position of the claimant to their circumstances in the full explanation and a “justification” of experiencing them, such a constraint demands normative evaluation”.  

Young, JA noted that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant includes the age, sex and capacity of the claimant as well as her or her cultural background.

In Figgliuzzi v Yonan [2005] NSWCA 290 the Court considered the earlier but similar incantation of the satisfactory explanation provisions in the Motor Accidents Compensation Act 1988 and held that that the explanation for the failure to lodge the claim within the time prescribed was not satisfactory because she had failed to obtain legal advice in a timely fashion.  McColl, JA makes clear in Figgliuzzi at [124] FF, the Act is one of many statutory schemes whereby the legislature has fixed definite time limits for the prosecution of civil claims because, “the public interest requires that disputes be settled as quickly as possible.” (CF Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 per McHugh, J).  Unlike other limitation provisions, however, those fixed by MA are not absolute.  The various authorities Her Honour collects in that judgment clearly “….demonstrate that a legislative concern with a prompt notification and timeous resolution of claims for damages arising out of motor vehicle accidents” and “what would constitute justifiable delays to be considered in the light of these legislative purposes”.   The majority held that determining whether a claimant has provided a satisfactory explanation involves a ‘normative judgment’. Arising from the accident, Ms Yonan had complimentary rights under the workers compensation and motor accident legislative regimes.  Ms Yonan who was employed by the Legal Aid Commission as a clerk offered as her explanation a belief that having made a claim for workers compensation she was not then able to claim damages under the motor accident regime.

At [95] Tobias JA, said:

Accordingly, the critical question concerns behaviour of a reasonable person in a position of the [claimant] who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because the accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act.  Would that reasonable person in the respondent’s position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practise or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?”

Santow JA, did not accept the view of the majority that it was unreasonable for her not to have sought legal advice and to have relied upon her ‘bush’ legal analysis. In dissenting, Santo JA said at [24]:

“For a person to have a civil claim under two regimes, namely workers compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive.  Therefore she did not feel the need to verify her belief when that belief was ex-facie reasonable does not to my mind render that belief unreasonable.  A reasonable person in [the claimant’s] circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief intrinsically irrational, that her own employer by its actions had implicitly confirmed.  Her employer did so by requiring her to complete a workers compensation claim form.  The Commission neither then, nor subsequently, informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work.  While [the claimant’s] ignorance of the law did not of itself excuse her from complying with the statutory time period,…..nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”.  I would therefore have reached the same conclusion as the primary Judge in this matter, applying the reasonable person test.”

More recently, Colefax DCJ in the unreported decision of Annetts v Bone & Anor, 04 December 2014 made reference to the following normative considerations:

(a)      The limited formal education of the plaintiff;

(b)      The knowledge or belief of the plaintiff that his condition was caused by the collision;

(c)      The fact that the plaintiff took little time off work because of the injury for the first ten years after the accident;

(d)      That the plaintiff was not out of pocket in relation to expenses associated with treatment of his injury because of the payments of workers compensation;

(e)      The plaintiff had a broad knowledge of a separate method of compensation for injuries sustained in the motor vehicle accident other than workers compensation;

(f)      The separate methods of compensation not only had time limits but also thresholds, thresholds which did not appear to have been exceeded until ten years after the accident;

(g)      The separate method of compensation provided that if proceedings were commenced and lost an adverse costs order would be made and could be enforced against the plaintiff;

(h)      Finally, a serious deterioration in the plaintiff’s condition ten years after the accident.

In Gedel v Tihic [2012] NSWDC 87, Leavy DCJ, considered the explanation offered by a plaintiff who upon medical advice did not initially believe his injuries to be serious.  His Honour said:

A reasonable person in the circumstances of the plaintiff would have more likely put up with a measure of discomfort experienced by the plaintiff…. and would most likely to have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve.”

And in relation to the delay following the plaintiff’s initial consultation with his solicitors:

In that regard, he was also required to come to grips with flow-on effects of these matters concerning his employment and his financial obligations generally as well as very real and worrying concerns over his mortgage liabilities and commitments… It is therefore not surprising and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result became to a degree un-focused and disorganised concerning his personal affairs.”

The reasonable person test involves a degree of objective analysis which may vary according to assumptions made about the person.  Further, the position of the claimant is not limited to merely personal or physical characteristics, but has been said to involve both injuries suffered in the accident (including any disabilities suffered) and the circumstances relevant to the delay.  The test in Walker is an objective test that is whether a reasonable person would have been justified in experiencing the delay and involves a normative evaluation of the claimant’s behaviour in this regard.   What is required is justification of the delay, not demonstration that the delay caused no harm or prejudice to the insurer.

In Brierley v Ellis [2014] NSWCA 230 (17 July 2014), the Court of Appeal held that where there was no objection made by the insurer to evidence being produced by way of statutory declaration, and no contradictory evidence is tendered, the evidence should be given no less weight than if the information contained had been provided by way of oral evidence.

Scott Hall-Johnston

BPC

Liability For Passenger Death Or Injury On An Airplane

Liability For Passenger Death Or Injury On An Airplane

BPC Aviation Personal Injury Section

Liability for passenger death or injury on an airplane

The liability of an airline carrier for the death or injury of an Australian passenger on an airline flight is governed by an international convention known as the “Montreal Convention” 1999. Passengers of other nationalities may be covered by another convention, known Warsaw Convention 1929.  It is each passenger’s “place of departure” and final “place of destination” which determines which treaty applies.

For example if a passenger was flying from Amsterdam in Holland to Sydney, Australia via Kuala Lumpur in Malaysia then because each of the Netherlands, Malaysia and Australia are all parties to the Montreal Convention, that  convention applies for anyone suffering death or injury.

Under the Montreal Convention, liability arises for the aircraft carrier in the circumstances set out in Article 17:

The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course in any of the operations of embarking or disembarking”.

The important point to note here is the requirement that the deaths or injury was caused by an “accident”.  That term is not defined within the convention itself, but the definition has been considered by courts around the world. The authoritative definition of the term is now widely accepted to have been pronounced by the Supreme Court of the United States in the case of Air France v Saks 470US392 [1985] in which O’Conner J. said that liability arises when; “a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”.

Although his Honour was referring to the Warsaw Convention, the same text appears in the Montreal Convention, and it is generally considered to have the same meaning.

Extent of liability

Under the Warsaw Convention liability was capped. This is not the case under the Montreal Convention, where liability is potentially unlimited. There are some practical controls on this, however as Article 21 of the Montreal Convention splits liability of the carrier into two “tiers” and slightly different rules apply in each tier.

In the first tier, which applies for all compensation amounting to less than 113-100 Special Drawing Rights (which is about Australian $183,500.00) the carrier cannot exclude or limit its liability. This means that the passenger need not prove that the carrier was negligent (but, of course, must show that requirements of Article 17 are met, including the event was “an accident”). It also means the carrier is liable even if it was not negligent.

In the second tier, for all damages higher then 113-100 SDRs the carrier is liable unless it can show it was not negligent. This reverses the traditional onus of proof normally it is the Plaintiff (or person making a claim) that must show the Defendant (the person the claim is made against) was negligent.

Solely due to the negligence or wrongful act of a third party?

In the second tier, a carrier may also escape liability if it can show the “accident” was solely due to the negligence or wrongful act or emission of a third party.

Where can claims be made?

Claims against carriers under the Montreal Convention can be made in anyone of “5 forums” being:

  1. The domicile of the carrier i.e. Malaysia.
  2. The carrier’s principal place of business; i.e. Malaysia.
  3. Where the carrier has a place of business through which the contract of carriage was made.
  4. The passenger’s place of destination.
  5. The passenger’s principal place of residence, but only if the carrier operates services to that jurisdiction and the carrier conducts business from leased or owned premises there.

The BPC Aviation team has access to an international network of aviation consultants and aviation lawyers.

Authors:

Courtenay Poulden – Partner

David Ford – Special Counsel

Practical Guide to National Disability Insurance Scheme & Compensation

A practical guide to the National Disability Insurance Scheme and Compensation

One of the regular concerns we have as personal injury lawyers is trying to give advice to plaintiffs (and indeed defendants) at settlement conferences as to what the net position will be taking into account such matters as Medicare and Centrelink refunds.

It is often necessary to make some educated guess as to what Centrelink may require by way of a payback or what the preclusion period for receiving benefits may apply in the future.

In matters involving catastrophic injury, an assessment of the compensation reduction amount pursuant to the NDIS (CRA) will also be fundamental.  Clearly in cases where there is a verdict or a readily identifiable component for care, the tables will make it fairly easy to work out.  What will be more difficult is the cases at the margins and more importantly, those cases where there is a need to compromise on account of liability risks.

I am told that a support coordinator will be available for discussion.  The real difficulty becomes that a practitioner will have to satisfy her/himself that the figure is sufficiently certain to advise on as it is unlikely a binding decision will be made by a support coordinator at that stage.

In cases where contributory negligence is determined the provisions of Section 107(3) will apply to the CRA.  What happens however when a Mediation is taking place and there is no reliable agreement as to what amount of contributory negligence is being applied. I understand that NDIS will, as Centrelink always has, be wary of arrangements between parties to settlements identifying apportionments that may ultimately have the impact of reducing a payback.  I have, on a number of occasions, on a quite proper basis, abandoned a claim for economic loss knowing that if that claim was unlikely to be successful and remained part of the particulars a Centrelink payment payback would be obligatory.  In my experience Centrelink has treated such arrangements with some suspicion.

In these days where alternate dispute resolution is encouraged more than ever, parties to personal injury litigation find themselves in settlement conferences or Mediations on a regular basis.  It is all the more important in cases of catastrophic injury where the costs associated with the trial are considerable.

Another common experience that arises in cases where a Plaintiff brings compensation proceedings against a non employer in circumstances where workers’ compensation benefits have already been received and must be paid back.  It is common when there are liability risks in the common law proceedings for there to be discussion between the Plaintiff’s lawyer and the workers’ compensation insurer in relation to a potential discount of the amount to be refunded particularly where it also operates to remove the workers’ compensation insurer’s obligation to provide further benefits.

The introduction of the Operational Guideline brings forward a whole new world of pain.  For those who share my dislike of figures and formulas it could become overwhelming.

The position will be relatively clear when the NDIS component can be readily identified such as in cases where there is a verdict or where the NDIS component is readily identifiable in which case table 2 of the annexed Guidelines can be followed.

Where that is not the case then table 4 of the Guidelines applies.

It might be worth noting at this point that Section 107(3) of the National Disability Insurance Scheme Act provides that in circumstances where a Consent Judgment apportions liability, the CRA is reduced to the extent of that apportionment.

Let’s assume for the purposes of this discussion that Jane Smith is alleging an entitlement to damages on account of a failed neurological procedure.  There are significant conflicting expert opinions and it is essentially an “all or nothing” case.  Let’s further assume that the sum of $6,000,000.00 is the entitlement of Jane at full value.

Jane is represented by a leading Senior Counsel who has advised her that her prospects of success are no better than two thirds and that Jane should accept any offer of $4,000,000.00 inclusive or better.

If we follow Jane’s table we see that one-half of her settlement ($2,000,000.00) would be used to form the basis of a preclusion from receiving Centrelink benefits (about 35 years).

Picture then Senior Counsel advising at the Mediation that whilst the matter is worth $6,000,000.00, a proper compromise for the risk of liability is one-third and a settlement is achieved for $4,000,000.00.  There is no apportionment in the sense that Section 107(3) envisages.  It seems to me that following Jane’s story the following figures would apply:

Amount of compensation

$4,000,000.00

Step 1.2 – reduction for Centrelink and Medicare

$11,380.00

$3,988,620.00

In accordance with Step 1.3, one-half of the settlement ($2,000,000.00) would be deducted on account of the Centrelink preclusion period of 35 years.  The amount calculated in accordance with Step 1.3 in this instance is therefore $1,988.620.00.

Continuing on to Step 2, the amount of anticipated benefits under the Scheme is valued at $1,960,000.00.  Following the subtraction in Step 3.1 for amounts previously paid by Jane the remaining figure or CRA is $760,000.00.

Let’s now return to the compromised settlement of $4,000,000.00.  Let’s assume further that legal costs of $500,000.00 were deducted leaving a net settlement of $3,500,000.00 less Centrelink and Medicare or $3,488,620.00.  We know that the care needs total $1,960.00.00 but the entitlement to that care under the Scheme will be reduced to the extent of $760,000.00 (about 40% of care will be underfunded).  We also know that there will be no Social Security entitlement for 35 years.

It will be seen how care and attention will have to be paid to the commencement and resolution of proceedings in these circumstances.  Take out the underfunded care and the loss of Social Security and even a substantial settlement calls for close inspection

The Legislation provides a mechanism whereby the Scheme itself can compel a participant to pursue compensation (see NDIS Act, Ch 5).  Presumably the subrogation of rights will be used sparingly and regard will be had to advice that a participant has otherwise received.

Another interesting question will be how the Scheme applies the hardship provisions and in particular what level of satisfaction the Scheme operator will require of a genuine compromise and apply a reduction to the CRA accordingly.  It has been my overwhelming experience that Government bodies (such as for example Centrelink) have been suspicious of Plaintiff’s lawyers claiming that Social Security repayments should be reduced on the basis of a compromise of liability.

Courtenay Poulden

6 December 2016

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

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

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

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

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

Late making of claims

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

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

S.73(1) provides:

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

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

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

Full explanation

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

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

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

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

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

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

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

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

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

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

Scott Hall-Johnston

BPC Lawyers