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

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Can I Still Claim Compensation in a Road Accident Matter If I Was to Blame?

It is a well-established legal principle that you can seek compensation for injuries sustained in a motor vehicle accident when: a) someone else was negligent; and b) that negligence caused or contributed to the accident. But what if you were also partially to blame? When your own carelessness is a factor in a road accident, it is legally classified as contributory negligence. Here’s what you need to know about claiming compensation in this situation.

Types of contributory negligence

What usually happens in a road accident/personal injury case is that the injured party’s lawyer must provide evidence that the person at fault was careless or reckless (negligent), and that that person’s negligence caused or was a significant factor in the accident. If the lawyer is successful, compensation will be awarded accordingly.

However, the responsible party’s insurance company or lawyer may argue that their client is not entirely to blame. Depending on the circumstances, they may allege that:

  1. the injured party’s actions (or lack of actions) also contributed to the accident; or
  2. the claimant’s actions (or lack thereof) contributed to the severity of his or her injuries.

Both are accusations of contributory negligence. In either case, the lawyer who makes these claims must provide sufficient proof that the injured party’s action or inaction meets the legal standard to qualify as negligence.

A (hypothetical) case in point

This is a tricky concept, even for some legal professionals and insurance providers. So to simplify, let’s consider the following scenario:

‘Jane’ is driving on a narrow road near a city park when her mobile phone rings, distracting her. Although she only takes her eyes off the road for a split second, the car veers toward the roadside, where ‘Sally’ is jogging. Jane quickly realises she can’t get around Sally because of oncoming traffic so she frantically slams on the brakes and sounds the horn. But Sally is wearing earbuds, and is oblivious to the danger until it is too late. She sustains a broken leg and numerous cuts and bruises on her hands and arms when the car knocks her to the ground.

After he evaluates the circumstances, Jane’s lawyer alleges that Sally contributed to the accident by jogging on the side of the road rather than the footpath. He also alleges that she would have heard the car and taken evasive action to minimise her injuries if she hadn’t been wearing earbuds.

The calculation of contributory negligence and how it affects compensation

When there is enough proof to substantiate an allegation of contributory negligence, the court must decide how much each person’s actions or inaction contributed to the accident. Most of the time, courts assign percentages when making these decisions. In a situation such as the one we just detailed, the court may find that each party is equally negligent. Specifically, it may find that Jane is negligent because she was distracted by her mobile phone, and Sally is negligent because she was wearing earbuds while running near the road.

Because the court makes a finding of 50 per cent contributory negligence, Sally’s compensation is reduced accordingly. In other words, an award of $50,000 with no finding of contributory negligence is now reduced to $25,000.

Mandatory reductions for contributory negligence

All of that notwithstanding, there are certain circumstances in which there are mandatory reductions for contributory negligence. Under the Civil Liability Act 2002 (CLA) a plaintiff who was intoxicated when they were hurt has engaged in contributory negligence. Accordingly, the amount of compensation claimed is automatically reduced by 25 per cent. In any such case involving a motor vehicle and intoxication, the mandatory reduction is 50 per cent.  Case law provides further precedent, for example by establishing that even where someone’s failure to wear a helmet has not affected the extent of their injuries, a deduction anywhere between 5% and 25% must be applied.

On a similar note, a court is not obligated to award any compensation to someone injured whilst committing a crime. In fact, sections 52-54 of the CLA make it highly unlikely that the claimant will recover damages.  Having said that, if the court assessing the circumstances determines the lack of any compensation would be too harsh, it has the discretion to award some compensation.

Contact experienced contributory negligence lawyers to learn more

If you or a loved one has been injured in a road accident and you have been accused of contributory negligence, you need proper advice from a qualified lawyer. Depending on your situation, a finding of contributory negligence can drastically affect the compensation you can receive. We have the experience needed to assess your circumstances and help you get the compensation you deserve. Contact us today on 1800 517 329 or info@bpclaw.com.au for a free case consultation.

Slip and Fall? How Much Compensation Can I Claim in NSW?

Slip and fall incidents can result in serious injuries. Victims often sustain head injuries, broken bones, back and neck injuries, and more. Depending on the severity of their injury, a victim may require extensive medical treatment and face a long recovery. During this time they may be unable to work, compounding financial and emotional stress.

If you were injured in a slip and fall accident stemming from another person’s carelessness, you may be able to make a compensation claim. While it is true that some cases end with substantial settlements or awards, the amount an injured person is entitled to depends on the specific situation and medical evidence obtained. Here’s what you should know in order to manage your expectations.

The case assessment

The first step (after you’ve reported the fall and received medical attention) is to consult a qualified personal injury lawyer. Choose one equipped with the skills and experience to evaluate your circumstances. He or she will assess:

  • the cause of the slip and fall accident;
  • where it happened;
  • the extent of your injuries;
  • the extent of costs incurred for medical treatment, hospitalisation, rehabilitation and so forth;
  • your inability to work (if applicable);
  • financial hardship;
  • any other relevant issues.

To facilitate this process, when meeting with a lawyer you should bring the following:

  • CCTV footage (if available). Following a slip and fall injury, always make enquiries about whether the incident was captured on CCTV and if so, ask the occupier not to delete the footage;
  • an incident report (if available);
  • clear photographs of the possible causes of the accident and the conditions at the scene depicting the cause of your injury;
  • all medical reports within your possession such as hospital discharge summaries documenting your injuries, treatment and future treatment requirements;
  • copies of medical bills, prescription receipts and so forth;
  • proof of loss of earnings such as pre-injury pay slips showing your regular earnings and post-injury records confirming time required away from employment;
  • witness statements;
  • any other material documenting the time, date, location and cause of the accident.

During this initial stage, your lawyer is likely to ask you about other ways in which your injury has changed your life. For example, you may be asked about your ability (or inability) to perform routine tasks (such as shopping or household chores). Your lawyer may also ask how your injury has affected your ability to do the things you used to enjoy (such as exercising or playing with your kids). Finally, your lawyer may ask about your mental health prior to and after the accident.

With this information in hand, your lawyer can devise a legal strategy and provide tailored advice to you. At this stage, he or she may also provide a rough idea of how much you can claim however this will depend on stabilisation of your injuries and the medical evidence obtained.

How is compensation calculated?

Your lawyer will obtain evidence and proof of your losses to establish the value of your claim. This is then used to determine how much compensation you are likely to receive.

However, you should be aware that there is no set formula for this calculation. This is because no two people, and no two slip and fall cases, are exactly the same. Even if you sustained the same injury or injuries as someone else, your road to recovery will probably be quite different.

So when it comes to compensation, think of it this way. What would your life be like if you had not suffered the injury? What will the future hold as you continue to recover from your injury? In this context, some specific questions should be addressed. One is whether you will be able to keep working (assuming you were working before). Another is whether you will be faced with ongoing expenses associated with your injury.

Remember, the purpose of compensation is to restore you to a position in life where you are likely to have been if the injury had not occurred. Depending on the circumstances of your accident and where the injury occurred, your entitlement to compensation will be governed by legislation however your lawyer will advise you further in this regard during the initial meeting.

Proving your case

Areas and buildings that are accessible to the public must be safe, cleaned regularly and well maintained. This means you may be able to seek compensation if you were injured in a slip and fall accident due to negligence at a:

  • grocery store;
  • rental property;
  • school yard;
  • sporting event;
  • shopping centre;
  • car park;
  • or any other public place or building.

To make a successful claim, however, you must prove that the owner or occupier of the premises is at fault, because he or she:

  1. didn’t identify a potential hazard (such as a damaged step or footpath), or failed to correct and/or failed to warn of the hazard by blocking it off or providing adequate signage;
  2. created the hazard by doing something such as spilling something on the floor that you walked on and fell or constructing an unsafe structure/hazard.

However, determining who was at fault isn’t always easy. Let’s say, for example, that a patron in a hotel bar spilled his or her drink and no one cleaned it up, leading to your slip and fall accident. Or what if a waiter in a restaurant dropped a bowl of soup or ice cream, with the same results? Who should you make your claim against? This is why securing the services of an experienced personal injury/public liability lawyer is so important.

Contributory Negligence

In addition to proving that someone else’s negligence caused your slip and fall, you must also prove there were no mitigating factors in order to be fully compensated. Specifically, you must prove that your own carelessness did not contribute to or cause the accident. This means you must demonstrate that you weren’t distracted, intoxicated, or acting foolishly when you slipped and fell. If there was some fault on your behalf, it is likely that your compensatory damages will be reduced to take into account contributory negligence.

If your personal injury lawyer determines you have a valid claim, you can seek compensation for pain and suffering, past and future loss of earnings, past and future medical expenses and other special losses suffered due to your injury. In many cases, these matters can be settled on an unlitigated basis prior to hearing, so your case may not have to be determined by a Court.

At BPC Lawyers, we have considerable experience and success handling personal injury cases. If you were injured in a slip and fall accident and need legal advice or representation, please contact us today.

What is Contributory Negligence in a Personal Injury Claim?

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

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

Types of contributory negligence

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

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

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

Example of contributory negligence

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

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

Negligence in NSW and amounts of available compensation

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

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

Intoxication and criminal activity

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

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

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

Conclusion

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

Slip and Fall? What Compensation Can You Receive?

Public liability claims for compensation are available to a plaintiff after suffering an injury in a public place. While public places generally adopt appropriate safety measures to help minimise the risk of injuries occurring, accidents do happen every day and sometimes the consequences are very real.

Potential compensation claims can arise out of the following examples:

  • A slip and fall in a supermarket, shopping centre, retail centres and on footpaths;
  • accidents that occur at private residences;
  • accidents that occur at schools, in parks or on playgrounds;
  • injuries that occur due to a defective or faulty product;
  • animal attacks:
  • boat accidents; or
  • food poisoning.

Steps to establishing the grounds for negligence

In order to file a successful compensation claim, negligence must be proven. At the simplest level, to prove negligence it must be established that:

  1. A duty of care was owed; and
  2. the duty of care owed was breached; and
  3. the loss you have suffered was the result of this breach.

Negligence can be established if it’s proved that the person or business who owed the duty of care should have foreseen that an injury could possibly occur if the necessary precautions were not taken, or they did not make the public aware of the ‘danger’.

With regards to a slip and fall in a shopping centre, for example, if the shopping centre had failed to place a wet floor sign adjacent to a slippery floor prior to the slip, this is an example of negligence. The shopping centre, therefore, would have breached their duty of care.

What is claimable?

There are various entitlements that are claimable by a plaintiff when negligence is proven. These can include:

  • Medical expenses and rehabilitation treatment, which can include past or future costs for things such as pharmaceutical expenses, rehabilitation treatment and the costs of travelling to and from medical appointments;
  • domestic assistance, such as during care and home assistance. This sort of compensation is only awarded if the court is satisfied that the care is necessary for the injury sustained;
  • compensation for loss of income and earning capacity if the plaintiff is unable to return to work.

In cases specific to work, where a plaintiff suffers from an injury either on the way to work, on the way home from work, or during the course of their work, workers’ compensation benefits may be available. In the scenario where a plaintiff becomes permanently disabled as a result from the injury, they are also able to claim an early release of their superannuation funds, as well as a payout under a Total and Permanent Disability claim (TPD), if their superannuation fund provides this coverage and a medical professional certifies that the plaintiff is unlikely to work again.

Steps for making a personal injury claim

There are a standard set of steps that should be followed if you sustain an injury following an accident in a public place. These include:

  1. Reporting the incident and the injury you have suffered to the appropriate person. This person will usually be the owner of the business where the accident occurred.
  2. Lodging a claim either with the owner of the business or its insurance company.
  3. Seeking legal advice to ensure you are made aware of your legal rights and entitlements.

The next steps

Seeking legal advice is recommended if you find yourself involved in an accident in a public place which causes you to suffer an injury or injuries you believe were caused by negligence on the owner or business’ part. A legal expert can help you assess the amount of compensation potentially available to you, as well as help you through the process of filing a claim.

Should You Settle or Go to Court After an Accident?

In the unfortunate instance that you have an accident in a public place that causes injury, compensation may be available. If you choose to pursue compensation, this is referred to as a public liability claim. Each individual situation is different, and the amount of compensation possibly claimable will differ depending on the specific circumstances of your accident.

Some of the most common locations where public injuries occur leading to public liability claims include:

  • supermarkets;
  • recreational activities;
  • sporting events;
  • schoolyards;
  • shopping centres;
  • car parks.

Following an accident, basic everyday living tasks that were once simple may become difficult to perform, and the more arduous tasks such as work may become almost impossible. In most cases, the negligent party will offer a monetary settlement if they acknowledge liability and believe that their defence will not succeed in court. You can accept this settlement or, if you believe the amount to be less than you should receive, embark on the alternative – a course through the various stages of litigation. If you find yourself in a similar situation and are debating this decision, there are a few factors that should be considered.

The size of the settlement and the strength of the case

If you’re unable to convince a judge of the merits of your claim in litigation proceedings, there is the possibility of incurring significantly high legal expenses. This is often the reason settlements are considered a preferable option.

But if you feel that a duty of care owed to you was breached, and that the opposing party has offered an insufficient amount of compensation, then litigation to secure an appropriate amount might be a better option.

It is crucial you ask yourself important questions such as whether or not your actions might have contributed to the injuries you suffered. Continuing through to litigation also requires a high degree of patience as proceedings can be quite lengthy. During this time, when you may be unable to work, you will obviously continue to incur medical bills, which may be reflected in the final compensation amount should you be successful. But cases can take 18 months or even longer to process.

The pay-out and time limits

The total amount of compensation will be made up of both economic and non-economic losses that are a result of the accident. These can include:

  • loss of income and superannuation payments;
  • medical and hospital costs;
  • past and future care arrangements;
  • pain and suffering.

Even quite minor injuries can result in high compensation payments, some in the tens of thousands of dollars, whereas more serious injuries can result in payments of hundreds of thousands of dollars or more.

Usually, ‘no-win, no-fee’ lawyers are the best option for public liability cases so that legal costs don’t need to be repaid until after the claim is successfully resolved. Most often, there is a time limit of three years after an accident to claim compensation for the injury incurred. Cases might require the testimony of a witness to help establish the factual circumstances of the case, another reason to kick start the claim as soon as possible.

Legal advice

Legal advice is always recommended. A legal expert can provide impartial, third party advice and make sensible decisions on behalf of clients based on the facts. A legal professional can also take a client through the potentially long and tiring process, as well as help to identify how much compensation might actually be achievable. If you find yourself in a situation where you might be eligible to make a public liability claim, contact an experienced legal professional today.

What is a TPD Claim and What Benefits Can I Expect from a Successful TPD Claim in New South Wales?

TPD stands for ‘total and permanent disability’ caused by injury, illness or disease.

There is insurance available to cover these tragic and unforeseen circumstances. TPD claims mostly differ from regular personal injury claims as the entitlements available are stated in the contract the claimant takes out with his or her insurance company, or more commonly their superannuation fund.

The most important factors in the contract between the claimant and the insurance company generally refer to the time frame in which a claim must be made, the entitlement payable and the actual definition of the TPD, which can differ between policies.

There are usually two types of TPD policies:

Own occupation: This is generally the preferable insurance policy to have, as it provides a definition of TPD as being satisfied if a person is unable to perform one’s own occupation. An example of this is if a carpenter suffers from a spinal injury, making it unlikely the tradesperson can ever perform the work he or she once could. The injured party might however be able to work an alternative job that does not require such physical effort, such as a working at a cash register.

Any occupation: The general policy associated with any occupation includes being unable to work in one’s usual occupation for at least six months, and being unlikely to ever work in any occupation for which one has suitable training, education and experience.

The process for making a TPD claim

  1. Clarify the definition and time limits: It is recommended that a legal expert reviews the contract before filing a claim, to ensure the medical evidence provided addresses all of the criteria needed to successfully meet the definition. A legal expert will also make sure you meet the mandatory time frame for filing a claim.
  2. Gathering the evidence and making the claim: The next step involves having a medical professional provide reports to support the TPD claims. Such medical professionals are usually called medico-legal experts. These reports would address all of the elements required to establish that the claimant has successfully met the criteria set out in the insurance policy.
  3. Considering the insurance company’s response: Usually, the insurance company will respond and request the claimant to be examined by a medico-legal expert appointed by the insurer. The contract between the claimant and the insurer will usually allow this. Following the examination and the subsequent report to the insurance company, the insurance company will either accept or deny the claim.
  4. What if the insurance company denies the claim? In the case where an insurance company denies the claim, the claimant will have to decide whether or not they want to try and dispute the decision and pursue legal proceedings in either the Superannuation Complaints Tribunal or a court of law. There is a time limit of two years in which a claimant must make a complaint to the Tribunal. The commencement of legal proceedings must be made within six years of the insurance company’s decision to deny liability.

The benefits

Should your TPD claim be successful, the claimant will receive the insured sum; i.e. the TPD payout amount stipulated under the policy.  This amount is additional to the person’s preserved superannuation balance.

What to Do If You Are Injured by a Forklift at Work?

The details are scarce, but there are plenty of stories. A quick Internet search reveals that there were two highly-publicised forklift accidents in the Sydney area last year. One of them happened at a Banksmeadow business on November 29. The other happened at a Condell Park warehouse on May 11. Both were fatal, according to media reports.

Sadly, these were not isolated incidents. Between July 2014 and July 2016, for example, more than 1,300 workers were injured in forklift incidents. Three of the workers involved did not survive. Then, in 2017, SafeWork NSW prosecuted and issued fines to four NSW businesses totaling more than $830,000 “for incidents where workers were injured or killed by a forklift”.

In light of that, here’s what you need to know about how to avoid getting hurt in a work-related forklift accident and the actions to take if you are injured.

Know the basics

According to SafeWork NSW, a forklift or industrial lift truck is generally defined as a vehicle used to “used to lift, stack and transfer loads”. As such, they are commonplace in warehouses and other industrial or commercial workplaces throughout New South Wales.

In certain circumstances, forklifts are also dangerous. Serious or fatal workplace accidents involving or attributed to these vehicles usually happen when the victim:

  • Is hit by a forklift because of driver error, working too close to the forklift or inadequate traffic management;
  • is hit by a load a forklift was moving because the driver did not use an  attachment when one was needed, or while helping adjust or steady the load;
  • is not wearing a seat belt in a tip-over. The forklifts are prone to tipping while operators are turning on uneven or sloping ground.

Common injuries include but are not limited to:

  • Superficial and deep bruises;
  • broken bones;
  • crush injuries involving trauma to skin, bones, underlying tissue and internal organs;
  • back and spine injuries;
  • head injuries.

Due to the settings in which forklifts are most often used, construction workers and their counterparts working in manufacturing, food, trades, wholesale, transport, mining and agriculture are most likely to be involved in forklift accidents.

What are my options if I was injured by a forklift at work?

If you are an operator or another worker injured in a forklift accident at work, your options for legal recourse and compensation will depend on your specific situation.

Ordinarily, you will be entitled to claim workers compensation benefits and the accident is a motor accident within the meaning of the Motor Accidents Injuries Act which may mean that you can make a third party claim for damages.

You may be able to pursue a civil claim if you can prove that someone’s carelessness contributed to or caused the accident. However, the best way to ascertain this is to consult a qualified lawyer who can thoroughly assess your circumstances and determine whether you have a viable case.

You may also seek compensation if you can prove that your employer’s failure to maintain “suitable conditions” contributed to or caused the forklift accident. This is because all New South Wales employers are legally obligated to:

  • make safe work systems available;
  • take care of all relevant equipment/machinery and make sure it’s working properly;
  • provide a safe working environment;
  • ensure that all employees have sufficient training and supervision;
  • provide and maintain adequate facilities.

How compensation is awarded

Compensation in forklift accident cases is generally awarded based on several factors. These include but are not limited to the severity of the injury, your age, your overall health, and your occupation.

As in other types of personal injury cases, you may seek compensation for costs incurred due to hospitalisation and other treatment; medical expenses; rehabilitation costs, such as those incurred for physiotherapy and similar treatment; home assistance (if any); loss of past and future income due to the inability to work; and loss of superannuation (if applicable). You may also request compensation for “general damages” such as past and future pain and suffering.

A case in point

In one case, a 65-year-old man injured by a forklift at his Sydney workplace received more than $600,000 in compensation.

The victim reportedly suffered “multiple internal injuries requiring surgery as well as soft tissues to his neck and back” after a co-worker driving a forklift ran into him.

As a result the man had to take a considerable amount of time off work before he could return to light duty. And in spite of his age, he had reportedly intended to keep working  for at least five more years, or as long as he could do so. Unfortunately, however, he never recovered fully enough to do that.

Upon evaluation of the situation, the man’s lawyers determined he was eligible not only to make a Workers’ Compensation claim, but also to pursue a motor vehicle accident claim. This goes to show the importance of getting the proper legal advice from someone qualified to assess your situation as soon as possible. Don’t leave anything to chance. Contact our Sydney Compensation Lawyers for an assessment of your forklift injury case today.

Compensation Lawyers Sydney

The Most Common Workplace Injuries and What to Do About Them

Workplace injuries take a serious toll not only on Australian employers and their employees, but also on the economy. As indicated by statistics gathered by Safe Work Australia, work-related injuries cost the Australian economy approximately $60 billion per year. That’s equivalent to approximately 5% of GDP.

With so much at stake, here’s what you should know about the most common workplace injuries and how to handle them.

The causes of most Australian workplace injuries

Safe Work Australia defines a “serious” workers’ compensation claim as one in which the “compensated injury or disease resulted in one week or more off work”. Preliminary data indicates that Australian workers filed 106,260 such claims in 2016-2017.

Preliminary data for that time also indicates that 40,330 or 38% of the workers who made this type of claim sustained injuries or experienced illness due to “body stressing”. More than 25,000 workers (24% of workers) sustained injuries due to slips, trips or falls; and more than 16,500 workers (16% of workers) got hurt when they were hit by moving objects.

Injuries and illnesses caused by the following accounted for the remaining serious workers’ compensation claims in 2016-17:

  • hitting objects with a part of the body;
  • mental stress;
  • other “mechanisms of incident”, such as biological factors, sound and pressure, roll over, slide or cave-in, and unspecified causes;
  • vehicle collisions;
  • heat, electricity and other environmental factors;
  • chemicals and other substances.

Some common types of workplace injuries

In addition to documenting the causes of most serious workers’ compensation claims in 2016-17, Safe Work Australia tracked the types of injuries the workers sustained. These comprised:

  • traumatic joint/ligament and muscle/tendon injury (41%);
  • wounds, lacerations, amputations, and internal organ damage (16%);
  • musculoskeletal and connective tissue diseases (16%);
  • fractures (11%);
  • burns (2%);
  • intracranial injuries (1%).

That’s a lot of medical jargon so now let’s take a look at what all of this really means.

In layperson’s terms, traumatic injuries involving joints, ligaments, muscles and tendons can also be classified as strains and sprains, depending on their severity. These types of injuries generally occur when poor body mechanics are used during strenuous physical activity, such as lifting and moving heavy objects. However, they can also happen when joints are stressed in slip/trip/fall accidents.

By definition, a wound is generally classified as a bodily injury in which the skin is breached (broken) and “there is usually underlying tissue damage”. Along with these types of injuries, cuts (lacerations) and amputation (the severing of a body part) are usually attributed to workplace accidents involving sharp tools/machinery.

Musculoskeletal disorders may include but are not limited to repetitive strain or repetitive stress injuries, such as carpal tunnel syndrome and tendonitis. When classified as such, they are usually caused by “overexertion or repeating a movement incorrectly for long periods”.

Fractures are simply broken bones. The severity of these types of injuries can vary drastically depending on the mechanism of injury. Workplace accidents that cause fractures include but are not limited to slips, trips and falls.

Next, the medical definition of a burn is “damage to the skin or other body parts caused by extreme heat, flame, contact with heated objects, or chemicals”. Although they account for a very small percentage of serious workplace injuries, the potential for burn injuries shouldn’t be taken lightly.

Although intracranial injuries, or head and brain injuries, also account for a small percentage of serious workplace injuries, they can be among the most devastating. These injuries can happen when workers are hit by moving objects, or when they slip, trip and fall.

What to do about common workplace injuries

If you’ve been hurt at work, it’s important to report the matter to your employer and seek medical attention as soon as possible. It is also important to get the proper advice regarding your rights and options for legal recourse, if any.

Beyond that, there are also certain precautions you can take to reduce the risk of getting injured in the first place. These include but are not limited to:

  • using proper body mechanics when participating in strenuous activities, such as lifting heavy loads;
  • identifying and removing any tripping hazards;
  • quickly identifying and cleaning slippery surfaces, or providing adequate warning;
  • wearing proper safety gear;
  • getting proper training in the use of heavy/dangerous equipment;
  • limiting repetitive activity by varying job tasks whenever possible.

To learn more about common workplace accidents and injuries, and your options if you have been hurt at work, contact our Sydney Compensation Lawyers today.

How Long Should it Take to Settle My Personal Injury Claim?

Personal injury claims can happen in a myriad of different ways and arise out of many different circumstances. Depending on the precise details of those circumstances, your personal injury claim may last anywhere from a few months to several years.

It is rare for a personal injury claim to be resolved in a short amount of time. It is much more common to see a longer time-frame, particularly when certain factors are present. Often, personal injury claims take around eight months to a year, but this is only an average and will not reflect everyone’s experience. Below, we discuss some of the factors that will affect the longevity of your personal injury case.

Type and severity of your injury

Serious injuries will often require a longer amount of time to stabilise for the purposes of being able to be assessed by medical experts.  In such cases, clients will be subjected to a longer treatment regime and may require multiple surgeries before the impact of an accident can be fully understood.   Together, these factors work together to extend the period of time spent assessing what your damages should be.

Before you settle, it is important to know how long your required medical treatment will last, whether you have been given the maximum benefit of treatment following the accident, and what your long-term diagnosis is. Your lawyer should work closely with your medical team to correctly ascertain your damages and thus the compensation you deserve.

Patience

Sometimes, it will come down to how long you are willing to wait for a settlement. As your lawyer and the insurance company negotiate back and forth, it might take time for your lawyer to whittle down the expectations of the insurer. However, if the details backing your claim are weak, you are tired of the entire ordeal, or just want to avoid the stress of a hearing, you can settle more quickly.

It is advisable, however, to stick it out as early settlement may mean you are cheating yourself out of additional money for delayed or secondary consequences of injuries. Either way, be sure not to settle your claim without being fully informed of its value. Settlements are permanent and if you accept a low settlement early on, there will be no chance to revisit the amount if you later discover further medical complications.

Financial stability

If you decide you are willing to wait for as long as possible to get the best settlement that you can manage, you also need to consider whether you can handle, financially speaking, possibly waiting years to receive payment. It might turn out to be worth the wait, but you need to ensure that you will not be causing yourself any undue hardship in the interim.  In workers compensation claims and motor accident claims, wage loss compensation and medical expenses are paid by the insurer pending the case outcome.

Overall, a personal injury claim will take as much, or as little time as allowed by the injury in question and the injured person’s willingness to wait. When preparing your claim, it is important to share as much detail with your lawyer as possible. The more they know about your situation, needs and goals, the more accurate an estimation they can give you about the speed of settlement. If you or a loved one has been involved in an accident that resulted in injury, you may be able to file a personal injury claim. Contact a lawyer right away to begin working on getting the compensation you deserve.

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New Dispute Resolution Process for Workers’ Compensation

Workers’ compensation claims can range from minor to extremely serious. The most recent statistics released by SafeWork Australia reveal that for the years 2016 and 2017 there were 106,260 serious Australian worker’s compensation claims. And while the frequency rate of serious claims per million hours worked decreased, the median time lost for a serious workers’ compensation claim increased by 32 per cent. Workers went from missing 4.4 working weeks on average to 5.8.

That amount of time off work isn’t good for the workers, their families, or their livelihoods, but losing part of their workforce is obviously bad for employers, too. To help alleviate some of the difficulties surrounding the claims process, the New South Wales Government decided to make changes that would streamline the options for workers when their claims are unsuccessful and, hopefully, make the entire dispute resolution process faster and more understandable.

Changes to dispute resolution for Workers’ Compensation

In October of 2018, the New South Wales Government announced changes to how workers’ compensation disputes will be decided. Those changes begin to take effect from early 2019. The goal of this shift was to improve the existing system by enhancing support services, streamlining the claims process, and eliminating duplication. Working together, these changes will hopefully improve the overall claims process experienced by injured workers in New South Wales.

Why change the system?

As the old saying goes: “If it ain’t broke, don’t fix it.” So what was broken about the old system? For one thing, claimants were found to have low levels of satisfaction with the existing claims system. Some of the issues that caused this dissatisfaction included: confusion about the claims process; lack of support; and the fact that the claimants had to fight against better prepared, better equipped insurance companies.

When workers wanted to file a claim, they were forced to reach out to several different organisations for opinions on whether or not they were even eligible to fight a decision. With a system so clearly biased against them, it’s no wonder that physically and psychologically injured workers were so dissatisfied.

Major changes

With sustainability in mind, the more ‘user-friendly’ system has made the following changes:

  • Workers will no longer be forced to go through multiple agencies to file a claim. The State Regulatory Authority (SIRA) and the Workers Independent Review Office (WIRO) will no longer undertake dispute resolution following internal review by an insurer. This will now be the responsibility of the Workers Compensation Commission, greatly simplifying the process.
  • SIRA will now field all employer and other system participants’ inquiries and complaints.
  • WIRO will now handle the complaints of injured workers that are not resolved in the first instance by their insurer.
  • The calculation process for pre-injury earnings has been simplified, which will increase the transparency of the claims process and streamline claims processing.
  • There will no longer be mandatory internal insurer review to determine work capacity.

These changes were decided after an extensive review that involved in-depth consultation with industry stakeholders, injured employees, and representatives from various organizations (SIRA, WIRO, and the WCC). The recommendations of the Legislative Council Standing Committee on Law and Justice were also considered when developing the reform.

A workers’ compensation claim can be extremely disruptive in the lives of many, especially if the initial claim is unsuccessful. Hopefully, these new changes to dispute resolution will help get injured employees the help they need more efficiently and with less bias toward the insuring entities. If you or a loved one have any questions regarding workers’ compensation, steps to take after a failed claim, or any other legal concern, please contact our Sydney Compensation Lawyers as soon as possible.

What Types of Personal Injury Qualify for Compensation?

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

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

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

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

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

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Workers’ Compensation for Slip on Construction Site

Construction workers experience some of the most dangerous conditions of any workplace. In the course of their day-to-day jobs, they handle heavy machinery, hazardous chemicals, extreme heights, and are exposed to the elements. Unsurprisingly, along with emergency services, these conditions make construction sites some of the most dangerous workplaces in Australia. According to Safe Work Australia, in 2017 the construction industry saw 33 on-the-job fatalities, with 21 reported in 2018 at the time of the report, making the construction industry the third-most dangerous industry in which to work.

Common construction hazards

Due to the highly demanding nature of construction jobs, there are a number of common causes for both injury and fatality:

  • Chemicals: Construction sites often make use of hazardous chemicals which can cause chemical burns or poisoning with immediate contact, as well as long term respiratory illnesses.
  • Noise: Construction sites use loud machinery and equipment such as power tools, jackhammers, bulldozers and more. Long term exposure to these noisy machines can result in headaches, ringing in the ears and even hearing loss, often called ‘industrial deafness’.
  • Exposure to the elements: Most construction work takes place outside while exposed to sun, wind and inclement weather. Sun exposure can cause sunburn, skin cancer, dehydration and heatstroke, particularly in certain areas of the country. Windburn can also damage skin, and inclement weather such as rain or high winds can lead to unfavorable working conditions and contribute to other mistakes and malfunctions.
  • Vehicle accidents: Construction work requires the use of heavy driving equipment including big trucks, earth-moving cranes and excavators which can cause a great deal of damage if involved in an accident, malfunction, or are mishandled. Additionally, when construction workers are on the road, they run the risk that drivers are not exercising the necessary level of caution and can hit them causing injury or death.
  • Moving or falling objects: Heavy lifting, either manually or with machinery, is a standard activity in construction work. Unfortunately, even a small miscalculation can result in death and injury with an object falling from overhead.
  • Slip & falls: As with any workspace, slip and falls are inevitable. However, with loose tools, debris and slick materials, construction sites are particularly rife with risk.
  • Height work: Many construction jobs deal with erecting buildings. This means working on ladders, scaffolds, or barely constructed upper floors. Falling from one of these areas will often result in extreme injury or death.
  • Electrocution: Working with exposed wires, faulty cords, or downed powerlines can result in a powerful electric shock.
  • Machinery: In addition to the larger equipment mentioned above, smaller tools such as power saws, drills, nail guns and electric sanders also pose a significant threat to safety as improper use or malfunction can cause cuts, punctures, bruises, lacerations and amputations.

Workers’ compensation for construction injuries

If a construction injury was caused by another person’s negligence, carelessness or a machinery malfunction, the injured party may be able to claim under a workers’ compensation scheme. All employers are required by law to provide their workers with: safe work systems, properly maintained machinery and equipment, safely maintained work environment, adequate facilities, adequate training, sufficient supervision and thorough instruction.

If your injury is the result of negligence by your employer to provide any of the proceeding work conditions, you may be able to file a claim and receive personal injury compensation. Luckily, this can cover injuries that affect you in the short term or in the long term, including late-onset injuries (cancer, illness, whiplash, etc.) and aggravations of pre-existing conditions (ligament tears, knee, back and hip injuries).

Claims against other contractors

Construction sites usually have many companies working with or around you. If a construction injury was caused by the negligence etc. of or more of these businesses, that is, a person who is not your employer, then you might also be able to file a claim against them.

What you may be able to claim

General damages: These damages cover the pain and suffering that you experience due to your injury. If your quality of life is permanently reduced, you may also be compensated in relation to that.

Medical costs, including hospital and rehabilitation: After an injury, you will be required to undergo diagnosis and treatment. Depending upon your injury, you may also need to receive rehabilitation service or home care, surgery, hospitalisation, or the use of special equipment such as braces or a wheelchair.

Loss of present and future income: While you are out of work to take care of your injury, you will not be receiving your usual wage. You may be able to recover lost wages, both in the present and in the future depending upon the circumstances and the severity of your injury.

Time Limits for Workers’ Compensation Claims

Like most areas of law, workers’ compensation involves serious time restrictions. These are made all the more serious by the potentially devastating long-term health effects that can go hand-in-hand with such a claim. The most pressing questions you will likely have are: “How much is this going to cost and where am I going to get the money to pay for it?!” When you have suffered an injury, the last thing on your mind will be meeting deadlines but unfortunately, in order to get the compensation that you are owed, paying close attention to time limits is a must.

When Can I Make a Workers’ Compensation Claim?

Four conditions must be met in order for an injured party to file a workers’ compensation claim. First, and most obvious, the worker must be an employee. Second, the employee in question must have suffered an injury or medical condition that a medical practitioner has diagnosed. The injury or medical condition must have been sustained in the course of employment and where the employment itself substantially caused the injury or condition. Finally, the employee has suffered or is suffering an economic loss due to the injury.

Notifying the Appropriate Parties

When the injury occurs, the injured employee needs to notify their employer of the incident and resulting injury or condition. The employer must be notified, in writing, of the injured worker’s name and address, what the injury is and how it occurred, and the date that the injury occurred.

Time Limits

In general, all workers’ compensation claims must be made within six months of the date that the injury occurred. However, this limit can be extended for up to three years if certain circumstances are met.

Exceptions

In circumstances where reasonable cause can be shown, the time limit can be extended from six months to three years. Reasonable cause may be shown in cases where there is an absence from the state, there has been a mistake, or in cases where the employee discovers their injury after the fact. In the event the injury or condition is not known until much later (for instance, whiplash, cancer, vision, or hearing problems), the time limit for filing a claim starts not at the time of the injury but at the time that the employee becomes aware of the injury and what caused it.

What Might Cause Someone to Miss the Deadline?

Aside from the obvious answers of mistake, confusion, or simple forgetfulness (all of which can be remedied by the involvement of a professionally trained workers’ compensation attorney) there are a few other reasons the claim might be made late.

Belief that the Injury Will Heal

As mentioned before, some injuries may take time to manifest in serious symptoms. Sometimes, what seems like a minor injury ends up having more serious consequences. In these scenarios, an injured employee might try and wait to see if the injury or condition goes away on its own. However, this can not only prevent them from recovering the appropriate amount of compensation, but might cause the injury to get worse in the meantime.

Fear of Retribution

Another reason that an injured employee might wait to report (or not report at all) is fear that they will experience discrimination from their employer. It’s a competitive world and no one wants to be seen as ‘troublesome’. However, there are laws in place to protect employees from being dismissed or punished for filing a workers’ compensation claim.qq

To meet important deadlines with any workers’ compensation claim, it is vital to act as soon as possible and get in touch with an experienced workers’ compensation lawyer who can help you stay on track with your claim.

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What is WIRO?

Established in 2012, WIRO – the Workers Compensation Independent Review Office – is an independent statutory office. But what function does it serve and how can it help you?

In short, WIRO is meant to help resolve disputes between employees and insurers in workers’ compensation matters. If and when a claim is denied or an employer needs assistance navigating the world of workers’ compensation premiums, WIRO may be able to provide assistance. The distinctive thing about WIRO is that they attempt to resolve these issues for free while avoiding litigation and an adversarial process.

WIRO are contactable on 13 94 76.

Workers’ Compensation in Australia

From 2012-2013, SafeWork Australia reports that 117,815 serious compensation claims were made by workers throughout the state. Due to the physically demanding and dangerous nature of their jobs, it is unsurprising that the most common types of workers’ compensation claims were made by labourers, machinery operators and drivers. Back injuries are extremely prevalent and because they tend to have slow-to-appear symptoms, they often result in long lasting and expensive consequences. Other commonly claimed injuries include hearing loss, vision loss, shoulder injuries, and psychological injuries. All of these are claims that WIRO can help with.

How WIRO Can Benefit the Employee

Workers’ compensation exists to aid and protect workers who are injured in the course of their employment. A complicated insurance process means that many injured workers can become overwhelmed or frustrated by the often complicated claims process. Even more so when something ‘goes wrong’. What if the insurer decides you’re able to go back to work before you’re ready, or rejects your claim? In addition to the confusing nature of workers’ compensation, you would then be forced to try and fight against your insurer, potentially while dealing with the effects of a serious injury.

This is where WIRO can step in and help. WIRO focuses on dealing with the insurer in a number of ways. When a claim is denied, payments are delayed, medical treatment is debated, liability is refused, claim determination is overdue, or payments are reduced, WIRO may intervene.

How WIRO Can Benefit the Employer

While employers are often the first place injured employees go to for guidance, they are also faced with an abundance of challenges when coordinating with insurers to handle liability issues. Not only are they torn between protecting their employees and defending their business from liability, but they have the obligation of dealing with insurance companies. Again, WIRO may be able to help. By referring to WIRO, employers faced with workers’ compensation issues can receive aid with:

  • management of claims and handling;
  • calculating compensation premiums;
  • determining compensation premiums;
  • liability concerns (including claim acceptance or denial);
  • any action taken (or NOT taken) by the specific insurer.

WIRO’s Complaints Handling Process

First, WIRO requires you to seek a review of any compensation issues with your insurer before coming to them for aid. Once all other avenues of relief have been exhausted, then WIRO can step in an offer assistance. WIRO focuses on the use of Alternative Dispute Resolution techniques first and foremost and will only resort to a more formal and in-depth investigation if all other attempts at resolution have failed.

If WIRO cannot obtain a resolution to your problem, then WIRO may refer you to a WIRO approved lawyer for assistance. We here at BPC Lawyers are able to assist you in such an eventuality.

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How Long do Public Liability Claims Take to Resolve in NSW?

Let’s face it, we live in an age of instant gratification. Thanks to the Internet, we’ve grown accustomed to having immediate access to just about everything we could possibly want or need. So if you’ve been injured in a slip and fall accident, or similar circumstances in which someone else is to blame, chances are that you want the matter resolved quickly and to your complete satisfaction.

If you’re not careful, however, this impatience may jeopardize your chances of getting the compensation you deserve. That’s why it’s important to work with an experienced Sydney personal injury lawyer who can not only manage your expectations, but also fight for optimal results.

During your first meeting, a qualified lawyer will gather certain information and interview you about what happened to determine whether you have a viable public liability claim. You can usually make this type of claim if you’ve been badly hurt on public or private property, but only in certain circumstances.

For example, you may have a viable claim if someone assaulted and hurt you in a car park with inadequate lighting and security. You may also have a viable claim if you were hurt when you slipped and fell on a wet floor at the movie theatre, or even if a dog bit you at the park.

This is because New South Wales law mandates that business owners and other organisations do everything possible to make sure that people are not in danger while on the premises.  In other words, they must make sure their properties are well maintained, that their employees have adequate training and that other measures are in place to ensure public safety. Any failure to fulfill these obligations which results in personal injury is legally classified as negligence.

Although it sounds like a cliché, one of the first things your lawyer will probably tell you is that every personal injury case is different. It’s therefore impossible to say exactly how long it will take to resolve your public liability claim in NSW. Some of the factors taken into consideration include:

  • The extent of your injury or injuries;
  • the extent of your treatment;
  • how long it takes to assess your long-term needs and what they are;
  • how long it takes the responsible party’s insurance provider to make a settlement offer (if at all).

If the insurer doesn’t make a reasonable settlement offer, or refuses to make any offer whatsoever, your only recourse will be to take the matter to court. If you and your lawyer agree to pursue this option, the court’s schedule will dictate how quickly (or slowly) the case goes forward. In general it can take 12 to 18 months until the case is actually heard.

Even if the case goes to court, there’s no guarantee you’ll win. In one documented case, for example, the court awarded $90,000 in compensation to a woman who brought a public liability claim against the Coles supermarket where she was injured when she slipped on a grape. In this particular case, the woman argued that the supermarket was negligent because it hadn’t removed a hazard (the grape) or done anything to make customers aware of it, and had been negligent for not clearing the floor of grapes and not warning customers of the slip danger. In response, the supermarket employed a legal defence called ‘obvious risk’.  Specifically, it argued that the presence of grapes on the floor constituted an ‘obvious risk’, and consequently it wasn’t legally obligated to warn customers. The court disagreed, ruling that the supermarket breached its duty of care, and awarded damages accordingly.

In another case, a woman brought a public liability claim against the owners of a shopping mall after she was hurt when she tripped over a kerb in an underground car park. The plaintiff here claimed that she couldn’t see the kerb due to fading paint and inadequate lighting. Unconvinced, the court sided with the defendants and ruled that kerbing was an ‘obvious risk’ for a trip injury. The Court also ruled that the woman’s distraction caused her fall, that there was sufficient lighting, and that the failure to refresh the paint on the kerb did not constitute an act of negligence.

Clearly there’s a lot to consider when you are deciding whether to make a public liability claim. At BPC lawyers, we have the knowledge and experience necessary to help you through every step of the process. Based on evaluation of your unique circumstances, we will determine whether you have a viable claim. If so, we will then work to ensure you receive the compensation you deserve through a settlement or court hearing. Contact us to learn more about how we can help you today.

What Are My Rights as a Passenger Involved in a Car Crash?

It’s something millions of people do every day – probably without a second thought – but in truth, you are risking your life every time you settle into the passenger seat in a motor vehicle. That’s because there’s always a chance that the person driving the car you’re in could do something to cause an accident, or you may get caught up in a crash caused by someone else. In other words, as a passenger you have no control over what happens while you are in the car. The good news, however, is that you do have certain rights as a passenger involved in a car crash.

Although applicable laws may vary, you generally have the right to:

  • Obtain certain information, such as the names, addresses, vehicle registration numbers, driver’s licence and insurance information of all drivers involved in the accident. If you have any trouble obtaining this material directly, you can get it from the police.
  • Receive help getting to a doctor or hospital if you were hurt. Even if you aren’t in pain immediately after the accident, you should still see a doctor who can treat and document any injuries that aren’t readily apparent.
  • Get a copy of the official accident report from the police.  Ask the investigating law enforcement officer when the report will be ready and how to get your copy.
  • Refuse requests for statements after the accident from another driver’s insurance company. If you do want to make a statement, be sure to consult a qualified personal injury lawyer first.
  • Consult with a lawyer specialising in this area.

Remember:

You are required to report the accident to the police within 28 calendar days after the accident unless a police officer attended the motor accident.

If you or a loved one were hurt in a car crash when someone else was driving, it is important to consult a qualified lawyer as soon as possible. Based on his or her experience, the lawyer can do an efficient assessment of the situation to determine if the injured party has a viable claim. If so, he or she can also determine who you should take action against, and what type of action is appropriate.

In some cases, this is an easy decision. Let’s say you sustained a nasty case of whiplash when the driver of the car you were riding in stepped on the accelerator instead of the brake, causing the vehicle to jump a curb and hit a building at a high rate of speed. In these circumstances, you would simply file a claim against the driver’s insurance provider.

But what if you sustained the same injury as a passenger in an accident involving another car? Should you file a claim against the insurance provider for the driver of the car you were riding in, or the other driver’s insurance provider? In this scenario, the answer is: “it depends”. Technically, you can make claims against both. However, in a situation in which only one driver was clearly at fault, you would only make a claim against that person’s insurance company.

If both drivers are at fault, insurance companies and lawyers will assess the contributory negligence of each driver to determine how blame is allocated and how compensation should be awarded. Because insurance providers seldom agree on the key issues, this process can be lengthy and contentious. Even so, chances are that you will be duly compensated -eventually.

But what if the insurance provider for one, or both of the drivers don’t want to provide the compensation that you are entitled to, or don’t want to compensate you at all? In those circumstances, you can sue the driver(s) and/or their insurance provider(s).

Depending on your unique circumstances, you may be able to secure compensation for:

  • Past and future medical expenses;
  • home care;
  • alterations made to your home that are necessitated by your injury/injuries;
  • loss of past and future income due to your inability to work;
  • loss of enjoyment of life (your inability to participate in activities that you enjoyed in the past).

If you were a passenger who was injured in a car accident, you may feel overwhelmed – especially if you can’t work and the bills are piling up. Even if you’re considering legal recourse, you may not know where to start. Or perhaps you just can’t cope with the thought of dealing with insurance companies or lawyers. With this in mind, it’s important that you have someone on your side who will help you get the compensation you deserve. At BPC Lawyers, we are here for you, so contact our Compensation Lawyers Sydney today.

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Can I Sue My Doctor for Delayed Cancer Diagnosis?

Imagine being diagnosed with cancer. Now imagine being diagnosed with advanced or terminal cancer and learning that, if it had been detected sooner, it could have been cured.

Imagine the shock. The disbelief. The fear. The anger. After all, this isn’t your fault. You’ve always had regular check-ups, exercised, followed a healthy diet. You’ve always listened to your doctors, because you trusted them. Now you’re wondering if you can sue the doctor(s) who failed you when it mattered most. The answer is: “yes”.

In Australia, mistakes frequently result in the misdiagnosis of colon, lung, cervical and oesophageal cancers. According to one estimate, roughly 12% of cancer cases involve failure of a doctor to take the appropriate medical actions for the patient’s welfare. Patients in this type of situation often sue their doctors. Specifically, they do so when their diagnoses are delayed due to their doctors’ failure to:

  • require follow-up appropriate screening and testing, such as biopsy, mammography, colonoscopy, CT scan or MRI;
  • spot common cancer symptoms or follow up with the patient concerning symptoms;
  • decipher laboratory and test results;
  • identify a condition as cancer (resulting in misdiagnosis);
  • acquire necessary patient information and history;
  • spend enough time with patients to address symptoms;
  • follow up with patients and the referred specialist(s).

In the scenario detailed above, you could also pursue a medical malpractice claim.  In order to be successful, however, you must generally prove:

  • the failure to diagnose your illness caused your suffering;
  • the doctor’s negligence was the immediate cause of your physical and/or mental harm;
  • the treatment provided by your doctor did not meet Australian standards.

You should also be aware that there are certain criteria that are specific to a medical malpractice claim based on delayed diagnosis. In Tabet v Gett, the High Court established that a plaintiff in a medical malpractice case could not win based solely on the argument that there was a possibility of a better result if the doctor wasn’t negligent. What this means in a delayed diagnosis case, is that you must prove that there would have been a significant difference in the treatment rendered and the result given a prompt identification of the disease.

For instance, you would have to present evidence that earlier identification and intervention would have kept your cancer from spreading to the extent that it has. Or you would have to prove that an inoperable tumour, for example, could have been excised if the doctor had diagnosed your condition sooner. You may also prevail if you could show that the chemotherapy or radiation therapy you must now undergo wouldn’t have been necessary if you had originally received a prompt and proper diagnosis.

Another important distinction is that in most medical malpractice cases, you can seek compensation for all past, current, and future costs based on the losses you have incurred. This may include but is not limited to compensation for pain and suffering, loss of income due to the inability to work, the inability to work, medical expenses and so forth.  In a delayed diagnosis case, you may also seek compensation for these losses, however the amount ultimately awarded if you win your case will be based on the expenses that can be directly attributed to the delay.

Having said that, applicable laws are constantly evolving and tend to be complicated. Because the outcome will largely depend on your unique circumstances, it is important to obtain proper advice if you are suffering from cancer that was not diagnosed promptly and you’re now considering legal recourse.

If you are thinking about suing your doctor, you should also be aware that there are strict deadlines (usually three years, depending on the jurisdiction) for doing so. Because the clock starts upon discovery of the delayed diagnosis, it is important to seek legal advice as soon as possible so you don’t lose your right to sue. Your life is already at stake so don’t leave anything to chance. Contact our Sydney Compensation Lawyers today.

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Injured at Work? Don’t Forget About Your Superannuation Fund

Most Australians know that they can file a workers compensation claim if they get hurt on the job. But did you know that may not be your only option? You may also be able to make a claim through your superannuation account. This is because superannuation programmes generally offer various types of insurance coverage. This article provides a basic overview to familiarise you with this issue.

In general, insurance provided through your superannuation will provide coverage for any illness or accident resulting in an injury that prevents you from working.  However, one of the most fundamental and crucial issues to understand in this context is that there may be different rules associated with the insurance provided through different superannuation programmes.

Some funds will only offer insurance to active members – those who are making contributions – while others will continue to provide cover once you’ve stopped contributing.  In some cases you won’t be eligible for the coverage unless you ‘opt-in’. If your superannuation fund offers ‘default cover’ for its members, however, you will automatically qualify for the coverage. Many policies also allow you to make a claim even if you are no longer working and are not currently insured – but only if you were covered at the time you were hurt.

Another important point to bear in mind is that just because you have coverage, it doesn’t mean your claim will be successful. It is not unheard of for a fund to deny a claim without a valid reason, and so it is essential that you consult an experienced lawyer prior to pursuing this option.

The Types of Claims Available

A lawyer who is well versed in this area can do a comprehensive review of your situation and discuss what you must do in order to prove total and permanent disability (TPD).  A TPD claim is one in which you must demonstrate that you can no longer do the type of work you were doing when you were hurt, or any type of work for which you are qualified based on your education, training or experience.

The reason this is so critical is that TDP, or ‘disability cover’, is the type of insurance coverage most often offered as ‘default cover’ by superannuation funds. Furthermore, successful TPD claims typically result in single (lump sum) payments rather than payments made over time. How much you will get depends on several factors including the extent of your injury and your policy terms.

Depending on your unique circumstances and the provisions in your superannuation insurance policy, you may also be able to make claims for temporary disability or income insurance.  If you make a successful claim for the former, you’ll most likely get monthly payments until you can resume working. A successful income insurance claim usually results in compensation for up to 80 percent of your average income, with payments being made for a maximum of two years. You should also be aware that you can usually make these types of claims through your superannuation fund even if you’re already receiving reimbursement through workers compensation, and that you can make your superannuation insurance and workers compensation claims simultaneously.

More Than One Super Fund?

Another question that often arises in this context is what you should do if you have more than one superannuation account. If you follow conventional wisdom, you may be tempted to combine all of your accounts so you don’t have to pay any fees or premiums on any funds not in active use. That can be detrimental for insurance purposes, however, because different superannuation insurance programmes have different rules. If you combine all of your accounts without getting the proper advice, you may end up with insurance that doesn’t meet your needs.

In summary, if you have a superannuation account, you also have options if you are hurt at work. In addition to pursuing a claim through workers compensation, you may also be able to make a claim through the insurance associated with your super fund. Because different insurance plans offered through superannuation funds have different rules, you may have to opt-in to ensure that you have cover. In most cases, you will probably have ‘default cover’ as an active participant in a super fund but in order to make a successful claim with this type of insurance, you must usually prove that you have TPD. Finally, you should always consult a qualified professional about the insurance ramifications before you consolidate multiple superannuation accounts.

If you have been hurt at work and you want to know more about your options for seeking compensation through your super fund, it is important to get proper legal advice as soon as possible. Contact our Compensation Lawyers Sydney for a free case evaluation now.

Aviation Injuries: What You Need to Know

In this podcast, Accredited Personal Injury Law Specialist, David Ford talks about the types of injuries people typically sustain on flights and what are the necessary actions the injured should do under certain circumstances.

Speaker 1: You’re listening to a BPC podcast.
Dan: You might be surprised, but the numbers of people injured on flights both in Australia and overseas is relatively high. In this context, it’s not, of course, always related to plane crashes. Well, to find out more, I’m with David Ford, a personal injury lawyer from BPC Lawyers who is an expert in aviation matters. David, what types of injuries do people typically sustain on flights?
David Ford: I think the best response to that is that, of recent times, I have been involved in a number of cases where I’ve acted, those passengers that have been scalded by hot coffee or hot tea, and sustained, in two cases, second-degree burns.
Dan: Wow, that’s fairly significant. What about other injuries typically that occur on flights? Like I’m assuming people might trip over, they might go to the lavatory, or the bathroom and slip and fall. Do you see that type of thing occurring?
David Ford: My experience in my previous cases, has been more so that a passenger has got up from their seat to either go to the bathroom, or perhaps stretch their legs, and there’s been no warning that there’s turbulence about to be encountered, and therefore the seatbelt sign has not come on. I know of one example where a lady left her seat to go to the bathroom, there was no warning as such, and the plane did hit quite severe turbulence. And as a consequence, she ended up fracturing her ankle. That case was settled.
David Ford: Each case depends, of course, on its facts. And I’ve always said to not only my clients, but also my friends and family members, it’s always wise to have your seatbelt fastened at all times, anyways, when you are on an aeroplane during the journey.
Dan: David, now, you probably should mention that these type of accidents, and potential action, legal action, that might arise, it’s always predicated on that whole basis of negligence, isn’t it? Trying to be able to prove that the airline, in this case, was negligent, and did not take the appropriate steps to minimise a foreseeable risk. Is that how it works?
David Ford: That is correct. Look, you must prove negligence. The definition, are they an accident, is that it’s an injury, must be caused by an unusual or unexpected event or happening that is external to the passenger. But yes, you must prove negligence.
David Ford: I can give a good example of another case that I had several years ago where my client was with his wife on a journey to, flight to Bangkok. They were joined by a passenger, sitting behind them, who was quite frankly, a bit intoxicated, and quite boring in his conversation. And he was drinking from his duty-free bottle of bourbon, which you’re not allowed to do on a plane. The air hostess, I think, once they observed that, but didn’t say anything to the gentlemen. Long story short, there was a fight, ensued, when they told this chap to go back to his seat and he hit my client over the head with a bottle of bourbon.
David Ford: It wasn’t a big case as such, but it was certainly resolved because that’s another example of where the airline should have taken steps to minimise the risk to that particular passenger from being assaulted by a fellow passenger. That’s another example.
Dan: David, now, listen, in relation to jurisdiction, I’m just thinking that, how does jurisdiction play out? So if you board a flight here, say in Sydney, and you’re on route to Los Angeles, and a debacle happens somewhere in-between, where does the jurisdiction lie?
David Ford: The jurisdiction lies in the fact that Australia is a [inaudible 00:04:09] to the Montreal Convention. And we have adopted that protocol, which sets out how people … Well, a number of issues in relation to air travel, but certainly, Article 17 deals with the basis upon which you can make a claim for damages. If you are, for example, I’ve had clients that were injured four hours out of Dubai, but they left Sydney, or Brisbane, or any major city in Australia, that’s where the jurisdiction comes from. Because you’re in the Montreal Convention, and the fact that you embarked, or even in the process of disembarking upon an Australian city.
David Ford: I have set out on our BPC website, a very good summary of the reason why you are entitled to make a claim pursuant to the Montreal Convention. So any client that needs to seek that information, can go to our website and see that particular article written.
Dan: Now David, in relation to more catastrophic injuries sustained in accidents, how do they play out? I’m assuming it’s the same sort of regime?
David Ford: Look it is. I was not involved to any great extent, but I did assist a solicitor who was involved in seeking compensation for parties that had family members on the MH370, the Malaysian aeroplane that disappeared in the South Pacific Ocean. And also, that particular lawyer was also involved in claims involving the MH17 Malaysian flight that was shot down over the Ukraine. Basically, those sorts of cases are what is known as similar to compensation to relatives claim, where you can claim for damages for the fact that you had a person or family member on the plane who, because of their untimely death, you’ve suffered consequentially, a financial loss.
David Ford: Those are the sort of claims that can be involved if someone therefore is, unfortunately, all those passengers were deceased. But if, as the consequence of some negligence, there was a death on the plane, that similar sort of claim can be made.
Dan: Now David, time limitations, in relation to these types of matters, is fairly strict?
David Ford: That is a very important question. The answer simply is this. You have two years, from the date of the incident, in which to commence proceedings, seeking compensation, under Montreal Convention. That time limit cannot be extended. It is a definitive period.
Dan: Now, what about seeking legal advice very early?
David Ford: Look, again, that’s a very important question. In all cases where you have to prove negligence, and you’d be surprised, even where you think it’s a case where it’s a clearcut case, where the insurer, well it is the insurer of the airline, but where the airline is liable, it is so important that you do contact a solicitor as soon as possible. Because the event, for example, one of the clients that, sustained quite serious second-degree burns, it was very important that I got a statement from not only the husband, but the father, but also the mother, as the circumstances around the accident, because they were very much upset and distressed at the time of the accident. And it was important to get the factual background in relation to the accident from them, while it’s fresh in their mind.
David Ford: Look, it’s just trite to say, after being in the … practising  in this jurisdiction for nearly 40 years, is that, no matter how good your memory is, your memory will, to a certain extent, fade, especially if it’s been quite a traumatic type of experience. And not only that, it may well be that in addition to the immediate family members, they may have been provided with contact telephone numbers of other people that witnessed the incident.
David Ford: It is always important in any case, to talk to independent witnesses to find out their recollection and record that recollection. As quite frankly, the courts tend to accept, I think more readily sometimes, in circumstances such as that the evidence of independent witness, whose got no actual financial interest in the outcome of the case.
Dan: The choice of a lawyer is important as well, I mean, given that this is a bit of a specialist area of law, isn’t it, within the realm of personal injury law, generally?
David Ford: It is. It’s far more specialised in the sense that the liability questions are important, and have to be determined. The actual quantum of damages, most good personal injury lawyers are able to put that together. But, I think the best way to answer the question is that there are a number of firms that do act on behalf of the insurance companies of these airlines. You tend to get, I think, a bit of an understanding as to their modus operandi, who you’re dealing with. It’s of assistance, I think, if you do regularly practise in the area, as opposed to someone who’s attempting to make one of these claims on a first occasion.
Dan: David, thanks for joining me.
David Ford: I appreciate that, thank you.
Speaker 1: Thank you for listening. If you have any questions, please call BPC on 0282806900.

 

 

compensation lawyers sydney

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

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

New Speaker

You’re listening to a BPC podcast.

Dan:

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

Tim Driscoll:

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

Dan:

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

Tim Driscoll:

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

Dan:

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

Tim Driscoll:

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

Dan:

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

Tim Driscoll:

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

Dan:

Tim, thanks for joining me.

Tim Driscoll:

Thank you very much.

New Speaker:

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