Legal News

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

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

Do you believe you have a case for compensation?

We can offer a complimentary consultation to discuss your options, and your chances and expectations for a successful claim.
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Gym Injuries & Compensation Claims

Gym Injuries and Compensation Claims

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

Recent Events

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

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

Personal Trainers and Liability

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

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

Liability Waivers & Gym Contracts

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

Negligence

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

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

What is a TPD or Superannuation Claim?

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

wistia fast
Injured While Volunteering

Injured While Volunteering? Can You Receive Compensation?

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

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

What is a Volunteer?

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

Workers Versus Volunteers

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

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

Duty of Care Owed to Volunteers

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

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

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

Australian Work Health and Safety Act

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

Contact a Lawyer Today

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

 

how to find a personal Injury lawyer

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

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

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

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

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

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

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

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

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

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

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

product liability

Product Liability in New South Wales

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

What Must Be Proven?

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

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

Three Legal Basis’ for a Products Liability Action:

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

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

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

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

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

Medical Negligence Claims FAQ's

Medical Negligence: The Commonly Asked Questions Answered

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

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

Courtenay:

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

 

Dan:

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

 

Courtenay:

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

 

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

Okay.

 

Courtenay:

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

 

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

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

 

Courtenay:

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

 

Dan:

Courtenay, thanks for joining me.

 

Courtenay:

My pleasure.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

medical assessments for personal injury

What You Need to Know About Your Personal Injury Medical Assessments

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

Scott:

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

 

Dan:

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

 

Scott:

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

 

Dan:

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

 

Scott:

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

 

Dan:

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

 

Scott:

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

 

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

 

Dan:

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

 

Scott:

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

 

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

 

Dan:

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

 

Scott:

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

 

Dan:

Scott, thanks for joining me.

 

Scott:

That’s a pleasure. Have a good day.

 

 

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

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

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

But what about traveling to work? Are you covered?

Travel to and from work

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

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

Exception – Travelling to work/work site for work sake

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

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

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

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

We have run many of these cases with great success.

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

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

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

Conclusion

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

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

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

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

No Win No Fee by BPC Lawyers

What Does “No-Win, No-Fee” Mean?

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

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

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

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

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

Party/Party Legal Costs

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

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

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

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

 

what to bring to first appointment

What to Bring to Your First Personal Injury Appointment

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

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

 

Transcript:

Dan:

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

 

Kate:

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

 

Dan:

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

 

Kate:

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

 

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

 

Dan:

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

 

Kate:

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

 

Dan:

Kate, thanks for joining me.

 

Kate:

You’re welcome.

 

Dan:

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

 

 

 

Statutory Paybacks to Centrelink and Medicare

Statutory Paybacks to Centrelink and Medicare Following Receipt of Compensation

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

Centrelink

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

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

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

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

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

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

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

Medicare

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

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

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

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

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

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

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

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

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

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

Proposed Reforms to The CTP Scheme

Proposed Reforms to The CTP Scheme

Changes to the Rights of Victims of Motor Vehicle Accidents

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

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

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

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

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

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

i/ General damages for pain and suffering.

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

iii/ Past and future medical expenses.

iv/ Nursing and domestic assistance.

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

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

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

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

b/ No-Fault Compensation

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

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

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

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

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

c/ Benefits of the Current Scheme

i/ Compensatory Damages:

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

ii/ Immediate Payment of Medical and Rehabilitation Expenses:

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

iii/ Payment of Legal Costs:

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

iv/ A Tailor Made Approach:

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

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

CHANGES TO THE SCHEME

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

a/ Moderate to Minor Injuries

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

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

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

b/ Severely Injured

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

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

WHY ARE THE CHANGES UNFAIR?

 a/ Access to Legal Rights

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

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

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

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

b/ Defined Benefits

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

c/ Finality

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

CONCLUSION

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

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

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

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

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

Why Does the Government Want to Change the Scheme?

Stated goals of reform

The stated goals of reform are as follows:

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

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

iii/ Reduce opportunity for claims fraud and exaggeration; and

iv/ Reduce the cost of green slips.

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

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

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

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

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

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

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

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

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

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

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

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

Why Do I Pay for a Green Slip?

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

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

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

Is CTP Insurance Expensive?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Do Insurers Manage Claims Against People Without Legal Representation?

Duty to shareholders

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

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

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

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

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

Involvement of Compensation Lawyers

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

The precise data has not been released in this regard.

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

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

Scheme Stability

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

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

Social Consequences

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

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

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

Mark Nelson, BPC Lawyers

Proposed Motor Accident Compensation Law Changes

Proposed Motor Accident Compensation Law Changes

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

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

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

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

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

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

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

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

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

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

About BPC Lawyers

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

For more information, please visit The website

Media Contact

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

BPC Lawyers Recognised by Doyles Guide

BPC Recognised by Doyles Guide

PRESS RELEASE

BPC Recognised by Doyles Guide

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

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

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

In 2015 and 2016, BPC received the following rankings:

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

Courtenay Poulden

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

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

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

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

About BPC Lawyers

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

For more information, please visit The website.

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

PRESS RELEASE

Australians Alerted To Proposed Changes To Motor Accident Compensation Laws

BPC Lawyers is a leading Sydney legal practice and accredited specialists in Personal Injury law. In a recent communiqué they make all Australians aware of the proposed changes to motor vehicle compensation laws.

The Minister for Innovation and Better Regulation, the Honourable, Victor Dominello MP announced in a media release on 2 March 2016 that the Government will be establishing a task force to counteract CTP fraud in New South Wales and will also conduct a review of the present CTP scheme.The Government has a clear agenda to reduce the cost of a green slip in New South Wales and is keen to see that a high proportion of the green slip premium goes towards helping the injured person.

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

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

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

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

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

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

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

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

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

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

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

When?

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

Why?

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

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

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

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

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

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

Conclusion

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

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

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

Assessment of damages in Nervous Shock Claims

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

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

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

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

Section 30(2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kate Henderson

28 August 2017

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

Can I be fired whilst on Workers Compensation?

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

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

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

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

The extent of protection will however depend upon: 

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

Unfit to work in pre-injury employment

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

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

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

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

Fit to work in pre-injury employment

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

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

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

Conclusion

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

That still remains the general proposition at law.

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

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

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

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

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

Timothy Driscoll

Associate

14 August 2017

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

When is an accident partially your fault?

Contributory Negligence

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

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

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

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

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

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

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

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

Scott Hall-Johnston 

BPC