Legal News

We confidently back ourselves to represent you with a No Win, No Fee guarantee.

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.
We confidently back ourselves to represent you with a No Win, No Fee guarantee. Please fill in our form below to get in touch.

Injured on a Footpath

I’ve Been Injured on a Footpath. Can I Claim Compensation?

Taking a fall on a footpath is never a laughing matter. In a best-case scenario, you’ll just end up with painful but minor injuries. In a worst-case scenario, you may suffer broken bones, or serious head or back injuries. To make matters even worse, the latter may make it difficult or impossible to work. In either case, your friends and family may urge you to sue the responsible party. But depending on the circumstances, claiming compensation can be tricky.

Establishing negligence

Negligence is legally defined as careless or reckless conduct that violates applicable standards. To claim compensation you must be able to prove: 1) that someone else was negligent; and 2) their negligence caused or contributed to the accident in which you were hurt.

Proving negligence, however, isn’t always easy, especially in a footpath injury case. This is because a local council or government is usually tasked with footpath maintenance and related matters, and these bodies are afforded significant protection under the law.

This generally means that the council or government’s negligence must be blatant for an injured party to make a successful compensation claim. Because footpaths are classified as public areas, it also means there is a legal expectation that people take extra care while walking there. Finally, it means that any contributory negligence is taken into account. Contributory negligence is any careless or reckless behavior/conduct that the injured party engaged in that helped cause their injury.

In addition to these generic concerns, specific sections in the Civil Liability Act 2002 (NSW) provide protection for councils in certain circumstances. In particular, these provisions limit an injured party’s ability to claim compensation based on the council’s supposed failure to address hazards (including broken footpaths) within its purview.

A case in point

The 2015 case of Nightingale v Blacktown City Council demonstrates the difficulties of claiming compensation if you were hurt on a footpath in a council’s jurisdiction. In this particular matter, a man got hurt when he tripped and fell on an irregular surface on a council pathway. The irregularity apparently occurred where the pathway sunk at the join, causing a trip hazard. The injured man alleged the council was negligent because it didn’t make the necessary repairs or provide sufficient lighting at night.

However, the District Court of NSW determined otherwise. Specifically, it ruled that the Council was not negligent because the people within the Council who were responsible for ensuring the maintenance and repair of the footpath didn’t know about any hazard that needed to be addressed. The decision reflected language in the Civil Liability Act stipulating that council workers responsible for upkeep of applicable public areas cannot be held liable for injuries occurring in said areas if they are unaware of the defect(s).

Upon appeal, the Court of Appeal also dismissed the case. In delivering its decision, the court stated that the council could only be found negligent if the injured party had proven that a relevant person within it had “actual knowledge” of the issue and failed to act.

The importance of getting the correct legal advice

Because the council or government usually has the law on its side, it is important to consult a qualified lawyer as soon as possible. At BPC Lawyers, we have the skills and experience needed to assess the circumstances of your case and act accordingly.

Specifically, we can take certain steps to determine whether a relevant person within a council had “actual knowledge” as required by law. This includes requesting information under the GIPA Act (Government Information Public Access). Once it receives this request, the council must provide us with the information we’ve asked for. The response will help us determine whether we can help you pursue legal recourse.

To determine whether you have a viable claim, we also need:

  • photographs documenting what caused the accident and the conditions of the site;
  • all relevant medical reports on any injuries, immediate and ongoing treatment;
  • all relevant medical bills and invoices;
  • past pay slips and other proof of loss of earnings;
  • proof of your dependence on someone killed in the accident (if applicable);
  • witness statements about how you got hurt and your injuries;
  • any records pertaining to when and where the accident occurred.

Different rules apply altogether if the pathway or surface is not on council controlled property.  Private land owners do not get the same protection against being sued.

At BPC Lawyers, we have a proven track record of helping people get the compensation they deserve so don’t leave anything to chance. As soon as you have this information in hand contact us through our website or ring us at (02) 8280 6900 to arrange a complimentary consultation with a member of our legal team.

What to Do After a Hit & Run Accident

Have you been injured in a motor vehicle accident since 1 December 2017?

If so, your claim is governed by the provisions of the Motor Accident Injuries Act (NSW) 2017.

Being involved in a hit and run accident figures as a worst nightmare for most drivers. In such situations it is understandable to have visons of not being able to claim compensation because the party that caused you to be injured has ‘done a runner’.

Fortunately, this is not the case in NSW where insurers are required to be a part of the Nominal Defendant Fund, meaning a person injured by an unidentified vehicle can make a claim through the fund and not be left without adequate treatment or compensation.

First Things First

There are numerous reasons why another driver may flee the scene of an accident they caused. They could be driving under the influence of drink or drugs, they may be unlicensed, uninsured, or they may simply panic when visualising the likely costs of their act.

In any event, as the injured partner, your first priority is that you ensure the safety of yourself and anyone travelling with you by getting off the road and away from the accident scene. Emergency services and police should be immediately notified.

Once these urgent things have been attended to, it is important to try and collect as much information as possible about the accident scene and the car that hit you. This may involve you or someone with you consulting witnesses to see if they can identify the make, model, colour and any distinctive features of the other car, its licence plate number, a description of the driver and/or passengers in the car, and the direction the car was coming from.

Collect the names and contact details of any witnesses as these may be required later.  You should also try to make notes of the street name where the accident occurred, the closest cross street, any nearby landmarks, shops, or parks, the time of the day, weather conditions and direction you were travelling.

Provide all of this information to the police if they arrive at the scene or at a police station within 24 hours of the accident. You will also need to visit a medical practitioner to report any symptom or injuries and have them assessed. Be sure to obtain copies of both the police accident report and your medical report as these will be later needed for insurance claim purposes.

What do I need to do to make a Nominal Defendant claim?

Where the claim and driver that hit you remain unidentified, you can make a Nominal Defendant claim through the State Insurance Regulatory Authority. They will allocate you a CTP Insurer who will manage your claim and pay your compensation if your claim is successful. This claim needs to be made within 28 days from the date of the hit and run accident.

If the claim is successful, you can claim for:

  1. Medical, rehabilitation and hospital expenses (including any potential future expenses);
  2. Loss of earnings or earning capacity (including any potential future loss of earning capacity);
  3. Home modification and attendant care expenses, if seriously injured;
  4. Pain, suffering and loss of enjoyment of life;

In order for your claim to be successful, you will need to show that the unidentified vehicle did cause the accident. You must also show you undertook “due search and enquiry” to try and identify the offending vehicle, by methods such as speaking to witnesses, ascertaining whether any CCTV cameras in the area recorded the accident, and liaising with police.

Some of the tasks the insurer will require you to undertake are as follows:

  1. Posting an advertisement in your local newspaper asking for details of the driver or potential witnesses to your accident.
  2. Asking local businesses if they have CCTV footage of the accident (if your accident occurred outside a business).
  3. Attending homes near the scene of the accident to see if they are any witnesses.
  4. Posting on community social media page(s) asking witnesses to come forward.

After you have undertaken these steps, you will need to provide the insurer with details of the steps of the steps you have taken to identify the vehicle, any information you have obtained and copies of any online and/or newspaper advertisements forming part of your enquiries.

The insurer may also require you to provide them with further documentation.

The importance of good advice

As it is clear from the above points, there is quite a lot to do in order to make a successful Nominal Defendant claim, at a time when you may be recovering from injury and/or remain traumatised by the incident itself. In this circumstance, the importance of trustworthy legal advice and guidance is invaluable.

At BPC Lawyers, we are motor accident compensation specialists, with a number of industry awards to our credit. In terms of the things you need to do as outlined above, we can help you.

We can gather necessary evidence such as names, registration numbers and insurance details of the vehicles involved, as well as receipt for hospital care, medical treatment and medication.

By managing all stages of your claim within the relevant time frames, we can ensure you obtain the compensation you deserve to ease your pain and suffering,

For a free upfront consultation, if you have been involved in a hit and run accident, contact us today on (02) 8280 6900.

What is a Slip and Fall Claim?

Accidents happen, and sometimes those accidents can occur in a public place such as a shopping centre or a footpath. In these cases, if you can prove that the people responsible for that public place were negligent in ensuring your safety, you may be entitled to compensation for any injury you’ve suffered whether physical or psychological.

If you’ve had an accident in a public place, it’s advisable to consult an experienced public liability lawyer as soon as possible as there are a number of steps to be taken within restricted timeframes in order to make a successful claim.

A slip-and-fall scenario

Say you’re visiting the supermarket to do your weekly shop. You’re in the produce section and have nearly worked your way through your list when you slip on a grape that has rolled off the table, slip and injure your elbow in landing.

Perhaps the injury doesn’t seem so serious at first and you say nothing about it. But over the next week it becomes sorer and sorer. You can’t go to work and you need to visit a number of medical professionals in order to be assessed. They determine that you will need surgery on the elbow, requiring more time off work and more medical expenses.

A knowledgeable public liability law firm can help you mount a claim for compensation against the supermarket. Relying on many similar cases that have come before Australian courts, they can show that in most cases those responsible for running public spaces such as supermarkets or public venues have a duty of care to those who visit them. They can also show that the supermarket, in our example, breached its duty of care to you by not cleaning up the grape from the floor within a reasonable time period, and that you have suffered a loss as a result of that breach (time off work, medical expenses, etc.).

What can you claim for?

You may be able to claim compensation for:

  • Pain and suffering – often a lump sum payment payable for the pain and other negative effects that the injury has had on your life, including psychological trauma.
  • Medical and other expenses – an amount to cover any medical treatment or related expenses that have resulted specifically from injury.
  • Economic loss – if your injury has resulted in any loss of income or wages, you may be entitled to claim those amounts back for both past and future loss.
  • Care and assistance – if your injury has required you to recruit domestic assistance (a cleaner or gardener, for example) these expenses can be claimed as a lump sum payment at the settlement of your claim.

No two cases are the same and the amount of compensation you may be able to claim will be related to how dramatically your life has been affected after the accident.

What are the next steps?

If you’ve had a slip and fall, you can certainly aid the process of applying for compensation by – if you have the presence of mind – taking photos of the accident scene and getting the details of any witnesses.

But there are also time limits for making a compensation application and a number of statutory thresholds under the Civil Liability Act to meet in order to prove, for example, pain and suffering as a result of the slip and fall. This is where the advice and guidance of experienced compensation lawyers can prove essential.

BPC Lawyers are specialists in public liability compensation matters, with a number of industry awards for its work in this area. If you’ve had an accident in a public place in which you’ve been injured, let us assess your case and help determine what sort of compensation you might be entitled to. Contact us today on (02) 8280 6900 for a free initial consultation.

Injuries in the Gym – New Issues for the Fitness Industry

The explosions of gyms and fitness centres has had a huge beneficial effect on the community’s fitness and general health.

Every second shop in most neighbourhoods is either a fitness centre or a laser clinic.

With the massive increase in people seeking assistance with their fitness regimes, comes a strong responsibility on the service providers to ensure the safety of participants.

Starting a gym programme is a bit like starting a diet. People tend to go at it like a bull at a gate and require careful management to ensure they do not suffer injury as a result.

One of the primary responsibilities of a fitness instructor is to take a careful history of the participant to determine what type of exercise programme is suitable for them. That obligation extends to ensuring that a history is taken of any prior injuries and any medical conditions such as a heart disorder which may affect the type of activity recommended.

We have been involved in a number of cases where the exercise programme put in place has been wholly unsuitable for the participant with disastrous consequences. A good example is a recent case involving a mature lady who was directed by her trainer to do leg presses at a weight usually reserved for a fit athlete. It had the unfortunate consequence of a serious hip injury.

A further case we have received done involved a lady in her mid-thirties, with a past history of hip and abductor muscle injuries, being required to perform exercises that were inappropriate given her previous history. She suffered a terrible exacerbation of her injury and has been unable to work since.

The less experienced participant, with no background of physical activity, requires an instructor to make sure proper warm-up and warm-down routines are used, and to ensure the participants progress is staged carefully to avoid unnecessary injuries.

Other gym cases which we have been involved have related to poorly serviced and maintained equipment, and unsafe gymnasium premises. There are standards and protocols which apply to the inspection and maintenance of gym equipment and it is incumbent upon fitness centres to ensure they have sufficient staff to carry out regular inspections and to ensure the gymnasium area is free of danger, such as water spillages and unsafe floor surfaces.

Most gymnasiums and fitness centres employer staff, and in addition have some contracted fitness instructors who use the facilities to conduct private classes. There is often an issue as to who is responsible in those circumstances and whether or not a private instructor would have to rely on her/his own insurance, or whether they may be covered by the fitness centre’s insurance. These are issues we regularly have to deal with.

If you have suffered an injury in a gymnasium or as part of a fitness programme, and you consider the operator may have been negligent, then you should contact us to discuss and find out whether or not you have any rights to compensation as a result.

Injured Overseas? How Do I Make a Compensation Claim in New South Wales?

There’s a lot to think about before setting off on a foreign holiday. We’ve got to make sure we have our airline tickets, passports, visas and so forth. We’ve got to arrange transport to and from the airport. We’ve got to find someone to look after our homes and pets and then we’ve got to pack.

With all of the anxiety and excitement, the thought of something happening to us while we’re overseas is likely brushed aside.  After all, none of us really wants to think about getting hurt while we’re far from home.

But what if something does happen? The prospect of ending up in a foreign hospital or finding a doctor to treat an injury overseas is pretty scary. The good news is that travel insurance, if you have it, may cover the cost of your care and related expenses. The bad news is that if you were hurt in an accident caused by someone else, you may have limited legal recourse while overseas. Depending on the circumstances, however, you may still have legal options in Australia. Here’s what you should know about making a compensation claim in New South Wales.

Do you have a case?

You may be able to seek compensation upon your return to NSW if the overseas accident in which you were injured stemmed from: 1) negligence/carelessness on the part of another individual; or 2) negligence/carelessness on the part of a business.

For example, a foreign hotel may be liable for your injury if it:

  • Created the hazard that caused your injury;
  • Failed to correct the hazard that caused your injury; or
  • Failed to provide adequate warning about the hazard that caused your injury.

In other words, you may be able to pursue a negligence claim against a foreign hotel if you fell off a balcony and suffered injuries because the railing wasn’t installed at the specified height. Or, in another scenario, you may be able to sue the hotel if you tripped on something hazardous and broke your ankle in a poorly lit area. You may also be able to sue if you slipped and fell on the pool deck or in the bathroom due to improper installation of tiling.

Another person in a foreign country may be liable for your injury if he or she engaged in extremely reckless/careless conduct that caused:

  • A traffic accident;
  • A boating accident; or
  • A similar incident in which you were hurt.

Depending on the circumstances, such conduct may include excessive speeding, operating a boat while under the influence of drugs or alcohol, or similar scenarios.

What to do if you are injured overseas

If you are hurt while you are abroad, there are several things you can do to facilitate legal proceedings here. Specifically, you should take the same steps to document the incident as you would if you were hurt in an accident in NSW.

These include taking pictures of the scene and getting the names and contact information of any witnesses. Be sure to keep any hospital and/or doctor’s records as proof of your medical condition and treatment. Be sure to keep copies of your hospital bills, prescriptions and all other expenditure or losses incurred. You should also keep a written record of your injuries and symptoms and how your injury impacted your holiday.

Types of compensation

The type of compensation you can seek depends on your unique situation. In most cases, holidaymakers who are hurt while abroad seek compensation for:

  • Injuries;
  • Medical expenses; and
  • Loss of income, including estimated present and future earnings due to the inability to work because of their injuries.

They can also seek compensation for money lost due to cancelled hotel reservations, flight changes and so on.

A case in point

Not all that long ago, the Supreme Court decided that a case involving two Australians who were injured overseas could be heard in NSW.

In that particular case, the holidaymakers were staying at a hotel in the Republic of the Maldives when they were badly hurt in a boating accident. They initiated legal proceedings when they returned to Australia, but the defendants argued that the case shouldn’t be heard here.

The Supreme Court disagreed, holding that:

  • Australian courts can acquire evidence from witnesses by AV facilities;
  • Having the case heard in the Republic of the Maldives would be highly impractical;
  • There was ample evidence from qualified mental health professionals that returning to the Maldives would have an adverse effect on the injured parties;
  • The company operating the hotel should have expected that 1) any injured guests would seek medical treatment in their own country; and 2) that any injured guests would also pursue legal action in their own country.

If you were injured overseas and you are considering a negligence claim against the responsible party, BPC Lawyers can help. Contact us to learn more today on 1800 517 329 or by email at  info@bpclaw.com.au

Do You have a Motor Accident Damages Claim (non-minor injury) and You have been Self-represented up until the Present Time?

After 78 weeks from the date of your accident, you can settle your damages claim with the CTP Insurer.

If the CTP Insurer has agreed you are eligible for compensation for your injury, and pain and suffering, then you will receive an offer of settlement for those injuries in addition to any claim you may have for past loss of earnings and future loss of earnings.

If you are not eligible to receive compensation for your injury, then your damages claim will be restricted to compensation for past and future loss of earnings.

If you are self-represented then when you receive the offer of settlement from the CTP Insurer, and you decide to accept the offer, then you should be made aware of the provisions of Section 6.23 of the Motor Accidents Injuries Act 2017 (NSW).

This section provides that a claim for damages by an injured person cannot be settled within two (2) years after the motor accident (unless you are entitled to additional compensation for injury).  Furthermore, the claim for damages cannot be settled unless the following occurs:-

  1. The Claimant is represented in respect of the claim by an Australian legal practitioner, or
  2. The proposed settlement is approved by the Dispute Resolution Service (DRS).

Furthermore, the DRS is not to approve the settlement of the claim unless satisfied the settlement complied with any applicable requirements of or made under this Act or the Motor Accidents Guidelines.

It is suffice to say you should seek advice from a specialist accredited personal injury lawyer before accepting settlement of your damages claim.

At BPC Lawyers, we have accredited personal injury specialists who will advise you as to whether or not the offer of settlement from the CTP Insurer is reasonable and should be accepted by you.

If we are of the opinion the offer should not be accepted by you, then we can assist you in further preparation of your claim for damages to achieve the appropriate amount of compensation.

What is Contributory Negligence?

In many personal injury claims, the facts are clear-cut.  One person is injured as a result of the fault of another person. If the person who caused the injury was careless or reckless, it may be legally classified as negligence. The person at fault must compensate the injured person for their losses.

But what happens if the person who got hurt also did something that contributed to the accident? This is where the legal concept of contributory negligence comes into play.

A complete or partial defence

The defendant will often raise the issue of contributory negligence and allege that the injured party was partially or largely responsible for the accident.

Let’s consider the following scenarios:

  1. A group of university students is playing Frisbee in a small park, and one of them throws the disc a bit too hard. Another student chases it onto the road without checking for oncoming traffic and is hit by a speeding car. The student, who sustains a broken leg and other injuries, sues the driver.

Here, the driver and student are both negligent. So the only issue for the court to decide is the extent to which the student’s negligence contributed to his injuries. This will determine how much compensation is awarded.

  1. A group of university students is playing Frisbee in a small park near a busy road. One of them throws the disc a bit too hard and his friend chases it onto the road without checking for oncoming traffic. The student who chases the Frisbee is hit by a car and sustains a broken leg and other injuries. However, the driver did not have time to avoid the student.

In these circumstances, the student who chased the Frisbee is entirely at fault. Therefore, the driver has no liability in connection with the accident.

Percentage of fault

The court will determine the extent of the contributory negligence by assessing the percentage liability of each party.  For example, in the first scenario detailed above, a court might determine that the injured student was 25% responsible and driver 75% responsible.  Accordingly, the damages payable would be reduced by 25%.

How compensation is awarded when there is a finding of contributory negligence

Before the introduction of the Law Reform (Miscellaneous Provisions) Act 1965, an injured party that was guilty of contributory negligence would be prevented from obtaining any compensation.

Since that time, the amount of compensation awarded is usually reduced by the same percentage as the plaintiff’s negligence. In other words, if a court assesses a plaintiff’s contributory negligence at 40%, the compensation awarded reflects a 40% reduction; if a court assesses the plaintiff’s contributory negligence at 50%, the compensation awarded is half of what would have otherwise been awarded, and so forth.

However, it is important to note that the specific rules addressing liability for contributory negligence are now detailed in each Australian state or territory’s relevant legislation.

Proving contributory negligence

Contributory negligence is a defence and therefore it is up to the defendant to prove that the plaintiff was partly to blame for the injuries that were suffered.  That is, the defendant must prove that the plaintiff failed to take reasonable precautions that would be exercised by anybody else in the same circumstances.  The defendant must prove that it was more likely than not that the injured party failed to take those precautions.

Criminal conduct and contributory negligence

All of this is well and good, but what happens if someone was injured while they were intoxicated? Or worse yet, what happens if they were the injured driver in a drink driving accident that also injured someone else?

In NSW, the answers to both questions can be found in the Civil Liability Act 2002 (CLA). It allows for a presumption of contributory negligence in any situation where an injured plaintiff was intoxicated. The act stipulates that compensation awarded should automatically reflect a 25% reduction, or a greater percentage determined by the court to be appropriate in the circumstances of the case, such as a drink driving matter.

In general, if someone gets hurt whilst committing a crime, a court can refuse to award any compensation whatsoever. However, if the court deems that too harsh, it also has the discretion to award some compensation.

Kids and contributory negligence

Earlier, we discussed a scenario in which a university student contributed to his own injury by running onto the street without looking. But what would happen if a young child did the same thing with the same outcome?

Children can be guilty of contributory negligence.  The law requires an assessment of what actions a person in the plaintiff’s circumstances, should have taken.  Therefore, the court will not usually find that a young child is guilty of contributory negligence.

If there is a finding of contributory negligence, any reduction of compensation is based on the child’s awareness and understanding of the situation, and how his or her actions contributed to it. In this context, it is important to note that a child of a certain age is expected to have the same awareness and understanding of a situation and his or her actions, as peers in the same age group.

If you have questions or concerns, we are here to help

If you were involved in an accident and have questions or concerns about contributory negligence, getting the right legal advice is critical. Contact us for a consultation and assessment to see if or how contributory negligence may affect your case today on 1800 517 329 or info@bpclaw.com.au

BPC Lawyers – Best Advice from Specialists

Are you self-employed and have been injured in a motor vehicle accident after 1 December 2017?

The Motor Accidents Injuries Act 2017 provides reimbursement for loss of income for both employed and self-employed injured persons.  Whilst there are generally no difficulties in ascertaining the pre-accident earnings of an employed person, it is now apparent that CTP Insurers are finding it difficult to properly calculate the pre-accident earnings of a self-employed claimant.

Pre-Accident Weekly Earnings (PAWE) are defined in Schedule 1(4) of the Act.

“Gross earnings” is not defined in the Motor Accidents Injuries Act.  However, it is clear in the definition of PAWE, the term refers to the gross earnings received by an earner as an earner.  The issue for determination is therefore the amount of gross earnings received by an injured person in self-employment in the twelve (12) months before the motor accident, expressed as a weekly average.

We are presently acting for a number of clients who are self-employed and have a gross annual income in excess of $200,000.00 per annum.  Self-employed persons have a number of fixed costs which are deducted from their gross earnings to determine profit, such as:

  1. Rent;
  2. Leasing of motor vehicles;
  3. Office equipment;
  4. Computers;
  5. Secretarial services;
  6. Administration costs; and
  7. Depreciation.

Unfortunately, there have been instances where a CTP Insurer has taken in to account these fixed costs when calculating a self-employed person’s weekly earnings.  Despite the fact the injured person has been unable to work at all but is still incurring these ongoing fixed costs.

For example, one of our clients, who has gross earnings in excess of $200,000.00 per annum, was advised by the CTP Insurer they have calculated his weekly earnings to be the sum of $386.00.

This assessment is difficult to understand when the injured person’s weekly lease payments on a motor vehicle are in excess of $400.00!

At BPC Lawyers, we have the resources to be able to properly determine the weekly earnings of a self-employed person and will assist those persons in firstly seeking an internal review with the CTP Insurer. If this proves to be unsatisfactory, then we can proceed further with an Application for the matter to be determined by a Merit Reviewer appointed by the Dispute Resolution Service (DRS).

workers compensation sydney

Injured on Your Way to Work Or On Your Way Home?

If you have been injured on your way to work or on your way home, you may be curious as to whether or not you’re entitled to make a WorkCover claim or in fact, a Motor Vehicle Accident claim. It can be more complex than you think.

In this podcast, Accredited Personal Injury Law Specialist, Scott Hall-Johnston discusses what is critical in the consideration of these types of compensation matters.

How to Calculate Car Accident Injury Compensation for Accidents Occurring Before 1 December 2017

In a perfect world, obtaining compensation for injuries sustained in a car accident would be easy. In reality, it’s not. This is because the circumstances of your case dictate the type of compensation you can seek. On top of that, you can’t make a claim based on a simple estimate. Instead, specific methods must be used to calculate various types of compensation.

While a knowledgeable personal injury lawyer can certainly handle all of these matters for you, you can lessen your stress and uncertainty by learning the basics. Here’s what you need to know about calculating car accident injury compensation.

Types of compensation available in New South Wales

If you have been hurt in a road accident in New South Wales, you may qualify for compensation:

  • loss of income due to your inability to work because of your injury;
  • past and ongoing medical expenses due to injury;
  • continuous pain and suffering causing a loss of enjoyment with your life;
  • nurse or carer’s fees.

A brief explanation of each follows.

Loss of Income

If you’ve been unable to work because of the injuries you sustained in a NSW road accident, you can seek compensation for your loss of income. However, there is a significant catch.  This caveat is that the law limits the amount you may receive. Specifically, the  Motor Accident Compensation Act 1999 includes provisions for restrictions based on your  gross income. Under the law, that figure cannot be more than triple the average weekly earnings of New South Wales workers  in the most recent quarter. If it is, it is not counted. The maximum nett weekly earnings allowed is presently the sum of $5,008.00.

Past & Ongoing Medical Expenses

If you were injured in a road accident, the responsible party may be liable for payment of your relevant medical expenses.

Another important factor applies if you received government benefits to cover your medical expenses. If this was the case, these benefits should be refunded through the compensation amount. Any medical expenses that were covered by your own private insurance should be refunded the same way.

Ongoing Pain and Suffering

To be compensated for pain and suffering, you must meet a certain preexisting injury standard. This is calculated based on the percentage of your body adversely affected by the accident. To qualify, your injuries must permanently affect at least 10 per cent of your body. This percentage must be determined by qualified medical professionals based on strict guidelines.

The purpose of this is to prevent exploitation. However, this often has unintended consequences. In many cases, crippling injuries are wrongly dismissed for this type of compensation. Sometimes, amputation of fingers and toes, as well as permanent skin damage, don’t warrant compensation for ongoing pain and suffering.

The Motor Accident Compensation Act of 1999 also limits these claims. Specifically, it caps payouts on pain and suffering claims at $546,000.

Nurse or Carer’s fees

If you require special home care for your injuries after the accident you may be eligible for compensation. It doesn’t matter if your carer is a professional (nurse) or a friend, nor does it matter if you paid the carer or not. Keep in mind, however, that the Motor Accident Compensation Act 1999 also limits these payouts.  In accordance with this law, you must also prove that you required care for more than six hours per week and for more than six months.

How is compensation affected by contributory negligence?

The amount of compensation awarded depends on who is at fault. If the other person was solely responsible, compensation is awarded accordingly. However, an allegation of contributory negligence is a common legal strategy in personal road injury cases. When this happens, the lawyer for the defendant, or the defendant’s insurance provider, alleges that the injured party’s carelessness also contributed to the accident. If there is sufficient proof of this, both parties will share responsibility and the amount is allocated accordingly.

Basically this means that if your negligence also contributed to the accident, you won’t get as much compensation as you would otherwise. A percentage of fault in road accidents is calculated based on:

  • whether you exceeded the speed limit;
  • whether you were intoxicated;
  • whether you knowingly got in the car with an intoxicated driver;
  • whether you were wearing a seatbelt.

What if no-one was at fault?

Traffic accidents can be considered “blameless” meaning as a result of a sudden illness or vehicle failure.  Each case needs to be decided on the facts, and we can advise you in regard to this particular type of claim.

Your responsibilities regarding deadlines

In addition to everything we have just detailed, you should also be aware that there are strict deadlines for filing paperwork and other relevant material. Again, your lawyer should be able to handle most of this for you. However, there are also some things that you can and should do yourself. If you were injured in a New South Wales road accident you should:

  • Report the matter to police as soon as possible, but definitely within 28 days of the accident.
  • Serve a Personal Injury Claim Form (or have your lawyer serve one) within six months after the accident.
  • Get an officially sanctioned assessment of your medical condition within 12 months after it has been stabilised if you are seeking compensation for non-economic losses.
  • Serve any Section 85A paperwork (if applicable) within two years 18 months from the date of the claim.
  • Ensure your case is referred to Claims Assessment Resolution Service (CARS) or initiated in the District Court within three years from the date of the accident.

Contact us for help with your car accident injury case today

If you were hurt in a motor vehicle accident, your health and your recovery should be your first priority. However, it is also important that you get the compensation you need to cover relevant expenses. Time is of the essence, so contact us to arrange an initial appointment today.

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

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

Types of contributory negligence

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

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

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

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

A (hypothetical) case in point

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

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

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

The calculation of contributory negligence and how it affects compensation

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

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

Mandatory reductions for contributory negligence

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

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

Contact experienced contributory negligence lawyers to learn more

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

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

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

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

The case assessment

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

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

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

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

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

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

How is compensation calculated?

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

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

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

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

Proving your case

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

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

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

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

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

Contributory Negligence

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

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

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

What is Contributory Negligence in a Personal Injury Claim?

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

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

Types of contributory negligence

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

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

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

Example of contributory negligence

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

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

Negligence in NSW and amounts of available compensation

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

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

Intoxication and criminal activity

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

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

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

Conclusion

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

Slip and Fall? What Compensation Can You Receive?

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

Potential compensation claims can arise out of the following examples:

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

Steps to establishing the grounds for negligence

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

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

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

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

What is claimable?

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

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

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

Steps for making a personal injury claim

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

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

The next steps

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

Should You Settle or Go to Court After an Accident?

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

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

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

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

The size of the settlement and the strength of the case

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

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

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

The pay-out and time limits

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

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

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

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

Legal advice

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

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

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

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

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

There are usually two types of TPD policies:

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

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

The process for making a TPD claim

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

The benefits

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

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

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

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

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

Know the basics

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

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

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

Common injuries include but are not limited to:

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

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

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

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

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

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

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

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

How compensation is awarded

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

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

A case in point

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

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

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

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

Compensation Lawyers Sydney

The Most Common Workplace Injuries and What to Do About Them

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

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

The causes of most Australian workplace injuries

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

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

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

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

Some common types of workplace injuries

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

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

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

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

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

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

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

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

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

What to do about common workplace injuries

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

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

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

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