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?

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Dog Bite

Dog Bite Claims in New South Wales

You’re taking a neighbourhood walk when a dog rushes out from the driveway of a house and latches onto your leg. What is your legal situation if the dog has injured you?

As reflected in a quarterly report issued by the New South Wales Office of Local Government, there were 1,260 “dog attack incidents” between 1 July 2019 and 30 September 2019. For the purposes of the report, a “dog attack incident” is defined as: one in which “a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin)…”  However, these are not necessarily incidents in which a dog actually hurts a person or another animal.

All of that being stated, the report also indicates that 292 people were injured in these incidents. Of those, 193 sustained injuries that were not serious and 136 required medical treatment. Fifty people were hospitalised and one person died.

And all of this begs a question. How do you file a dog bite claim in New South Wales? Keep reading to find out.

Who is legally responsible?

In New South Wales, the Companion Animals Act NSW 1998 stipulates that a dog owner is “personally responsible” for any damage it causes.  The law also defines a dog owner as:

  • the registered owner;
  • the person who usually has custody and control over the dog;
  • someone who claims the dog as his or her personal property.

Clearly, additional explanation is warranted here. To clarify, consider the following scenarios. Suppose you buy the dog for your son. For all intents and purposes, you are then considered the registered owner. This consideration will be valid until any applicable documents are changed, meaning if you give the dog away and remain as its registered owner, you will potentially still be held responsible for it should it later bite someone.

Now let’s say you get divorced and your son  moves out with his mother. As long as the dog is now kept at the new address, your son (or your ex-wife) may be considered the owner.

Finally, if your former wife officially claims the dog as her personal property for the purposes of separation or divorce, she may also be regarded as the owner.

These are important distinctions because an injured person can sue any of you if there are multiple owners of the dog.

What can a dog owner be held liable for?

As a New South Wales dog owner, you are legally responsible for:

  • any physical harm incurred by someone who is attacked or bitten by your dog; and
  • any damage to the victim’s personal property, such as their clothing, incurred when your dog attacks or bites them.

Keep in mind that a dog bite claim in New South Wales is a strict liability claim, meaning no fault on your part needs to be proved. As we have already noted, you are responsible for your dog’s actions in these circumstances.

When you can make a claim

Your ability to make a successful dog bite claim in New South Wales largely depends on the circumstances of your case. This is because no two situations are exactly the same. In general, you may be able to seek compensation through a public liability claim if:

  • you were bitten by a dog that wasn’t secured or contained correctly;
  • you were bitten by a loose dog.

Types of compensation you may seek

If your dog bite claim in New South Wales is successful, you will be compensated for all applicable physical and emotional injuries and losses. Depending on your situation, you may be compensated for:

  • initial hospital and medical costs;
  • loss of earnings due to the inability to work;
  • ongoing medical costs (for rehabilitation, prescription medications and so on);
  • pain and suffering;
  • loss of enjoyment of life (the inability to participate in the same activities as you did prior to the incident);
  • paid or unpaid home care and similar assistance provided by anyone as long as it meets certain criteria.

Defences used in dog bite cases

Lawyers for defendants in these cases generally use two arguments to refute liability claims. The first is that you had no right to be on the property when you were bitten. The second is that the dog attacked due to provocation by someone else. Either way, the dog owner would not be held legally responsible.

The only exceptions are:

  • If the dog is classified as a dangerous dog;
  • another dog provokes the attack (instead of another person);
  • one owner is bitten while trying to break up a fight between two dogs.

To learn more about your legal rights and responsibilities as a dog owner or a dog bite victim, simply contact a member of our award-winning liability law team. You can do so through our website or by calling 1800 431 59o for a free case evaluation today.

Negligence

What are the Pitfalls of Suing a Council or Roads Authority for Negligence?

In life, accidents happen. But where you have an accident that results in an injury, and the cause of the accident was the negligence of a local council or roads authority, it’s a natural reaction to want to seek redress from them in the form of compensation.

This situation can commonly arise, for example, where a road or a footpath, a bridge or a walkway, has not been built or maintained to an appropriate standard by the local authority and causes an injury. People trip on uneven footpaths, fall down hills which should have been fenced off, or are injured in cars that crash due to sub-standard roads.

But how easy is it to sue a local authority for such examples of negligence? The answer is: difficult, but not impossible.

Since the passing of the Civil Liability Act (‘CLA’) in NSW, there are more hurdles for someone to prove that a local authority such as a council is liable for your injury have been. This article looks at how the legislation can provide immunity from liability for public authorities as well as some of the factors a court will take into account in assessing negligence claims, citing some recent cases.

How the CLA works to protect public authorities

In NSW, the CLA raises the threshold required for a member of the public to prove a public authority has been negligent.

Section 43A of the Act provides that a public or other authority’s exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances ‘so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.’

This is an objective test, as clarified in the 2014 NSW Court of Appeal case of Curtis v Harden Shire Council where Basten JA said: ‘the state of mind of the authority is not identified as one which it would or should hold, but rather one which no authority could hold.’

This hurdle works in conjunction with the protection against claims of negligence offered to public authorities such as councils (and in their capacity as roads authorities) offered by Section 45 of the CLA:

‘A roads authority is not liable in proceedings for civil liability … for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. [Italics added]

This means that an injured party needs to produce evidence that an officer who had the appropriate authority within the council did have ‘actual knowledge’ of the risk that caused the accident. This can be a high bar to get over.

How the courts have dealt with this issue – recent case examples

In Mansfield v Great Lakes Council [2016] NSWCA 204, Mr Mansfield sustained injuries after he rolled his heavily loaded truck into a water course when the embankment on a single lane track road gave way. He claimed that Great Lakes Council, who were responsible for the care and maintenance of the road, were responsible for his injuries in that they had been negligent in failing to build a sufficiently large culvert with head walls that could have prevented the erosion and collapse of the embankment.

The Court of Appeal upheld the protections offered by the CLA to public authorities, finding that the standard of reasonableness provided for in s 43A of the Act must be ‘manifest’. This means the evidence must demonstrate that an act or omission was so unreasonable that no roads authority could properly consider it to be a reasonable exercise of, or failure to exercise, its power.

Furthermore, the Court also found the Council immune from liability for failing to carry out road works based on the protection in s 45 of the Act. This was because the evidence had failed to establish that any Council officer, with the requisite authority, had actual knowledge of the particular risk that materialised in these circumstances.

The case confirmed that the protections for public authorities such as a local council acting as a roads authority are high hurdles to overcome for those seeking compensation.

In Oberlechner v Hornsby Shire Council [2017] NSWSC 23, however, Mr Oberlechner succeeded in his claim that Hornsby Shire Council in Sydney had been negligent after he fell into an unfenced culvert and sustained substantial injuries. The plaintiff was awarded $380,640 in damages when the Supreme Court of NSW found the Council could not rely on the ‘actual knowledge’ protection of s 45 of the CLA.

The Court found, in fact, that multiple people with requisite authority within the council had actual knowledge of the risk posed by the culvert over a period of 30 years since it had been built, and failed to act on his knowledge. The Council was therefore negligent.

Speak with expert legal professionals

It is by no means easy to take on any public authority when trying to prove their negligence has resulted in your injury. This is not only because of the protections offered to such authorities under s 43 and 45 of the CLA, but because it is usually one individual taking on a large, well-staffed organisation.

BPC Lawyers is a specialist Sydney personal injury law firm with years of experience helping individuals pursue negligence claims against larger organisations such as public authorities. If you believe your injury is the result of negligence by a local government or roads authority, get in touch today for a free case evaluation on 1800 431 579.

motor vehicle compensation

What Rights do I have if a Motor Vehicle Accident is My Fault in New South Wales?

If you are the ‘at fault’ driver in a New South Wales car crash and need to know where you stand in legal terms, there is good news and bad news. The bad news is that, depending on the circumstances, you could be in big trouble. The good news is that you also have rights. Keep reading to learn more.

What is fault in the context of a NSW car crash?

All motorists traveling New South Wales roads have a legal obligation to drive sensibly. By exercising ‘reasonable care’, they protect themselves and other travelers from harm. Someone who fails to use this degree of caution and causes an accident may be deemed negligent. Legally this means they are to blame, or ‘at fault’. In most cases, the driver at fault engages in one or more of the following actions:

  • drink driving;
  • speeding;
  • failing to heed a traffic light or sign;
  • failing to keep a proper lookout.

Your legal rights

As a general rule, you do not have to speak to the police if you do not wish to do so.  However, as a driver involved in a car crash, you are legally obligated to provide certain information requested by police at the scene. This includes your name, address and details from your Australian driver’s licence. If you refuse, you may be fined up to 20 penalty units, which is equivalent to $2,200.

The police may also ask you for a statement about what happened. In most cases, it is best to comply.  There are two things to keep in mind here. The first is that the police cannot force you to come to the station unless you have been arrested. The second is that you should not make any assumptions. Be sure to ask the officer if you must comply with his or her requests before doing so. If you have any doubts and are in a position to, double-check with your lawyer.

Sharing the blame

A crash investigation is conducted to determine who is at fault. In some cases, it is easy to see only one person is to blame. If you are found to be the only driver at fault, you may face criminal penalties and fines. You (or your insurance provider) will also be responsible for compensating the other driver(s) and/or any occupants of their vehicle(s) who are injured.

But what if the situation isn’t so cut and dried. What if the other driver also did something to cause the crash? Legally, this is known as contributory negligence. If you can prove that the other driver also did something wrong, you will not be solely responsible for compensating any injured person.

Consider the following scenario. Your pregnant wife sends you out to get milk and some snacks on a stormy, pitch-black night. It’s late and all you want to do is get to the shop and get home. Luckily, you get to the shop without incident. That is not the case on the way home, however. Your mobile rings as you round a bend, and the momentary distraction causes you to swerve into oncoming traffic. Another vehicle is speeding when you hit it head on. You and the other driver both sustain serious injuries.

In this case, both of you were at fault. You were driving while distracted and the other driver was speeding. Neither of you exercised reasonable care. However, it will be up to a court to determine the percentage of fault based on the police investigation and other factors. For example, a magistrate may decide you are equally at fault. Or he or she may decide that you are mostly to blame (70 percent). In either circumstance, the amount of compensation you are liable for will be adjusted accordingly.

It is important to note that liability applies to property damage as well as personal injuries.

In summary

Even if it is only a minor collision, being in a motor vehicle accident is a stressful, traumatic experience. It is especially stressful if you were somehow to blame. In addition to facing potential criminal sanctions, you may also have to compensate the other driver and/or passengers for any personal injuries or property damage.

However, it is also important to remember that as the driver at fault, you also have certain rights. BPC Lawyers are specialists in the area of personal injury, negligence and compensation, and has won multiple industry awards. Contact us today on 1800 431 590 for a free case evaluation.

Bullying and Harassment in the Workplace

Bullying and Harassment in the Workplace – What Can You Do?

Bullying or harassment are rightly considered unacceptable practices in any part of society but what are your options for dealing with this behaviour if you experience it at your place of work?

In contemporary society, many – though certainly not all – employers and organisations will have detailed anti-bullying policies in place to deal with any instances of this behaviour. They do so because to ignore or fail to deal with bullying or harassing behaviour can leave them liable to later legal action for not providing a safe place to work.

There are a number of options you can take if you’re experiencing bullying or harassment at work, ranging from bringing it to the attention of the national Fair Work Commission, SafeWork NSW, or consulting specialist compensation lawyers about seeking workers’ compensation because you have sustained a psychological injury as a result of the behaviour. This article deals with the last circumstance.

What is bullying behaviour?

Bullying and harassment can take different forms and could constitute overt or less obvious behaviour. Essentially it involves verbal, physical, psychological or social abuse by a manager, colleague or another group of people at work.

Non-exhaustive examples of bullying behaviour include:

  • abusive or offensive language or comments directed at you;
  • aggressive and intimidating behaviour towards you;
  • belittling or humiliating comments directed at you;
  • sexual harassment, including unwanted touching;
  • practical jokes or initiation;
  • excluding you from workplace activities;
  • unjustified criticism or complaints.

The effects of bullying on a person are well documented. They can affect a person’s confidence and self-esteem, causing anxiety, depression and sleeplessness. Importantly for employers, these effects can also lead to a significant loss of productivity and wellbeing in the employee.

What should you do if you experience bullying and harassment at work?

The first thing to do is to check whether your company or organisation has an anti-bullying policy and, if so, what is the procedure for reporting this type of behaviour.

Secondly, if you’re confident and able to, you should directly inform the person responsible that you find their behaviour unacceptable and would like them to stop. You should also report the behaviour to an immediate supervisor, manager, health and safety or human resources officer, or a union representative.

Remember that employers have a duty to provide a workplace that protects the health and safety of their employees, including the psychological health of workers.

At this stage you may also want to consult a lawyer experienced in workplace and employment law issues to see what options you may have to stop the behaviour or seek redress for the damage it has caused to your life both at and outside of work.

Making a workers’ compensation claim as a result of bullying

If you believe bullying in your workplace has resulted in you having a psychological or psychiatric injury, you may be able to apply for workers’ compensation through the NSW scheme.

In order for a claim of this type to succeed you will need to provide medical evidence that supports your claim that you’ve suffered psychological or psychiatric injury as a result of workplace bullying. This evidence must distinguish your claim from those where an employee’s distress is caused by what’s called “reasonable management action” – such as having your work responsibilities changed, being transferred, demoted, disciplined, retrenched, dismissed or otherwise treated in a way that management can argue is reasonable.

Permanent impairment

In certain cases, a person may find they are unable to continue working due to the effects of serious workplace bullying. This may be said to cause permanent impairment, for which they may be eligible for a lump sum compensation payment. In order to prove this level of impairment, a specialist medical assessor –  trained in the exact method used to decide how much your psychological injury has affected your life and ability to function – needs to confirm that you have a permanent primary psychological injury that has produced at least 15 per cent “whole person impairment”.

It’s important to note that if you succeed in obtaining a lump sum payment for permanent impairment, any weekly workers’ compensation payments you may have been receiving will end.

If you believe your psychological or psychiatric condition has been caused by the negligence of your employer, work injury damages may also be available to cover past and future economic loss. Again, the 15 per cent whole person impairment threshold is used to determine this type of claim.

How can legal advice help?

Expert compensation lawyers such as the professionals at BPC will tell you that proving psychological injury as a result of workplace stress caused by something such as bullying is considerably more difficult than cases involving physical injury at work. But that’s not to say they are unheard of and the advice of legal professionals with expertise in this area is usually the difference between successful and unsuccessful claims.

In short, it can be a confusing and complicated landscape to navigate, particularly if you’re already experiencing anxiety and stress as a result of the bullying behaviour.

For this reason it’s highly advisable to seek out the guidance and advice of a law firm with expertise in workplace compensation claims help restore your quality of life and move on from the unreasonable behaviour of other people at your place of work. Contact award-winning BPC Lawyers today on 1800 431 572 for a free legal consultation.

Dangerous Recreational Activity

Injured Doing a Dangerous Recreational Activity? What You Need to Know…

As your parents probably told you, you can’t live your life wrapped in cotton wool. At some point most of us participate in a sporting, leisure or other recreational activity that has an element of danger. But what happens if you’re injured while doing so? Can you claim compensation for the effects of your injury?

In NSW, recreational activity is outlined in the Civil Liability Act 2001 (“CLA”) and includes:

  1. any sport (whether or not the sport is an organised activity);
  2. any pursuit or activity engaged in for enjoyment, relaxation or leisure;
  3. any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

In many of these situations, depending on the specific facts of your incident, you may be able to claim compensation for injury… that is, unless the activity is considered a ‘dangerous recreational activity’.

Dangerous recreational activities are defined in the CLA as those that involve a significant risk of physical harm, and injuring yourself while undertaking one will likely prevent you being able to claim any compensation.

What sort of activities are dangerous?

Much legal argument in cases involving dangerous recreational activity is devoted to whether the activity should be considered dangerous. Some examples of dangerous recreational activity – often found in the case law – including diving off bridges into bodies of water where the depth is uncertain or unknown, swinging off rope swings into rivers, shooting guns at night and riding bicycles in unsuitable environments.

Working out whether the activity poses a risk of significant harm involves an objective assessment – that of a reasonable person in the same position as the injured party – of the probability of physical harm and the seriousness of the harm which would or might then result. This degree of risk does not mean that it is “likely to occur” but is often expressed as “more than trivial”.

Using the reasonable person test, courts will generally assess both the nature and degree of the harm that might be suffered, as well as the likelihood of the risk occurring. Cases are often made more complex when factors such as time, place, competence, age and sobriety of the participant, equipment and the weather are considered as contributing to make a recreational activity dangerous.

How does the legislation treat dangerous recreational activity?

If you’re injured while undertaking a recreational activity that is considered dangerous and posed an obvious risk, and believe your injury is the result of another person’s negligence (such as that of the activity’s operator, for example), under the terms of the CLA that person cannot be held liable for the harm you have suffered.

To be clear, this means that where an activity poses a risk so obvious that a reasonable person in the same position would have identified it and refrained from participating in the activity, another person cannot be held accountable for your injury.

Many recreational activities will include a risk warning, perhaps provided by prominent signs or verbally by the operator of the activity before you undertake it. Where such a warning is provided in a manner that is reasonably likely to result in a person being warned of the risk before engaging in the recreational activity, the CLA says that no duty of care is owed to the participant in the activity in respect of the risk specified in the warning.

A couple of case examples

In a 2012 NSW Supreme Court case, Streller v Albury City Council, Mr Streller suffered severe injuries after attempting to do a flip off a rope swing into the Murray River. His case alleged that the Council owed him a duty of care to take reasonable precautions to avoid a risk of injury to him that was foreseeable, and that the Council had breached its duty of care by failing either to remove or properly supervise the rope swing; by failing to ensure that the water in the area was sufficiently deep for safe use of the swing; and by failing to warn Mr Streller that it was dangerous for him to dive into the water or to use the swing.

Mr Streller’s negligence claim was unsuccessful, the court finding that he had engaged in a dangerous recreational activity and that there was an obvious risk of harm associated with the activity.

In Goode v Angland decided in 2017, the NSW Court of Appeal confirmed the CLA’s statutory defence of “obvious risk” of a “dangerous recreational activity” can even apply to professional sports. Mr Goode, a professional jockey, made a personal injury claim against fellow jockey Mr Angland after he was injured during a horse race, accusing Angland of negligence during the race that caused his horse to fall.

Mr Goode’s claim failed when the Court of Appeal upheld the decision of the Supreme Court that found Mr Angland could not be held liable for Goode’s injury because professional horseracing was, by the terms of s 5K of the CLA, a “recreational activity” and therefore Angland could rely on the defence of obvious risk of a dangerous recreational activity.

In conclusion

There can sometimes be grey areas in determining whether a recreational activity is dangerous and poses an obvious risk. Other factors such as a person’s age and experience can also be called on when someone is injured while participating in a recreational activity.

Assessing all these variables requires the services of experienced Sydney personal injury lawyers. BPC Lawyers has won multiple industry awards in this specialist area of the law, and can help you work out your options if you’ve been injured during a recreational activity. Contact us today (02) 8280 6900 for a free legal consultation.

Single Vehicle Collision

Single Vehicle Collision – What Are My Rights?

While accidents involving motor vehicles are a frequent occurrence in Australia, one of the common misconceptions is that if your accident involves only your vehicle, you can’t claim compensation for any injury you might suffer.

Single-vehicle accidents are sometimes referred to as “blameless accidents”, in that no other party is at fault, and can commonly occur when a driver suffers a sudden illness such as a heart attack or stroke; when the vehicle suffers an unexplained mechanical or vehicle failure; or when the car unavoidably collides with an animal on the road, among other examples.

Under the no-fault compulsory third party motor vehicle insurance schemes that exist in most states and territories of Australia, someone injured in a single-vehicle accident can still make a claim for compensation but there are conditions and restrictions that apply, as we discuss in this article.

What does the law say?

After the NSW Government introduced the Motor Accidents Injuries Act 2017 (NSW) (“the MAI Act”) in December 2017, a new hybrid scheme of benefits and support under the state’s third-party insurance system was introduced to provide statutory benefits for up to 26 weeks after the accident where no person was at fault, and modified common law damages for persons with injuries other than ‘minor injuries’, where fault is established.

Statutory benefits can cover medical treatment, wage loss and funeral expenses. Any application for statutory benefits must be made within three months of the accident otherwise a claim to entitlements may lapse.

Claimants with minor injuries (defined as soft tissue and/or minor psychological injuries) or those who were wholly or mostly (‘mostly’ is defined in the legislation as contributory negligence of 61 percent or more) at fault in the accident are limited to six months of weekly payments of statutory benefits.

The statutory benefits payable under the MAI Act are payable by the relevant insurer who, in the case of a single-vehicle accident, is the insurer of the vehicle.

The MAI Act also ended the entitlement to gratuitous care damages – where a family member provides care to the injured person without payment – as either a statutory benefit or as common law damages. Costs incurred in employing someone to provide care services to the injured person, or to their dependents, is still recoverable as paid care.

The Act limits common law damages to economic loss (loss of earning capacity; costs relating to accommodation or travel; financial management of damages; reimbursement for income tax paid or payable on statutory benefits); and damages for non-economic loss where the injured person’s degree of permanent impairment is greater than 10% and their injuries are not ‘minor’.

Single-vehicle accidents that occur at work

If your accident occurs while you are at work or on a work-related journey, Section 3.35 of the MAI Act states that the injured person is not entitled to statutory benefits if compensation is instead payable under a workers’ compensation claim.

This created a problem where a workers’ compensation claim failed or the benefits ceased, impacting the injured person’s ability to make a motor accident CTP claim within the required time frame.

While an injured worker could pursue a common law claim, damages were limited to non-economic loss, lost wages and loss of earning capacity but not medical treatment and attendant care, which were considered statutory benefits.

Section 151Z of the Workers Compensation Act 1997, however, requires a claimant to repay out of the damages claim, all workers’ compensation paid, including treatment and care paid by the workers’ compensation insurer.

A problem arose because s151Z of the workers’ compensation legislation requires a claimant to repay out of the damages claim all workers’ compensation paid (including treatment and care paid by the workers’ compensation insurer).

This problem has been rectified by the Workers Compensation Legislation Amendment Act 2018 which now allows claims for treatment and care after a workers’ compensation claim has finalised; and allows a claim for statutory benefits to be made within three months after workers’ compensation payments cease. Because recovery actions arise only where there is a liability ‘to pay damages’, recovery actions apply only where the claimant has a non-minor injury.

Seeking legal advice

As is clear, despite your accident being ‘blameless’, it can be a complex and time-consuming process to claim compensation for an injury sustained in the incident. Dealing with insurance companies, differing pieces of legislation, and separate claims made at common law, require the expertise and experience of personal injury lawyers Sydney.

If you’ve been injured in a single-vehicle accident and are unsure of your rights and entitlements, contact BPC Lawyers today. We’ve won multiple industry awards for our work in this complicated area so call us now on (02) 8280 6900 for a free legal consultation about your particular circumstances.

Workers' Compensation NSW

How Are Workers’ Compensation Claims Assessed in New South Wales

While we should all be thankful that Australian states each have a workers’ compensation scheme to cover those injured on their way to or from, or while at, their workplace, the complexity of the schemes means you almost certainly need some expert legal guidance if you unfortunately find yourself in need of such compensation.

This is no different in NSW, where a number of legislative changes to the Workers Compensation Act 1987 and other regulatory changes in the intervening years have created a fairly complex system, both when it comes to making a claim and also in terms of how your claim is assessed.

If you’re injured at work there are a number of ways you can claim compensation. Depending on the seriousness of the injury and the time you need to take off work, weekly workers’ compensation payments can be paid to you. You can also be entitled to reimbursement of medical expenses, loss-of-income payments in case you are unable to work because of the injury, and payment of a lump sum amount for any permanent injury.

When it comes to permanent injury, a common question asked by people is how this is assessed, which is the primary subject of this article.

Assessing a permanent injury

A permanent injury is understood as one which has stabilised and resulted in ongoing impairment that is unlikely to change within the next 12 months, meaning the injured person has reached what is called ‘Maximum Medical Improvement’ (MMI). It can refer to the impairment of both the physical and/or mental ability of an injured worker.

The degree of permanent impairment that results from an injury is assessed by reference to the NSW Workers Compensation Guidelines which compliments the American Medical Association Guides for the Evaluation of Permanent Impairment. Detailed tables and methods are used for evaluating the percentage of the injured person’s ‘whole person impairment’ (WPI), considering all the injuries by reference to pathology sustained in the accident.

A medical specialist trained in assessing impairment using the guidelines must conduct the assessment of an injured person as they present on the day, taking account of their relevant medical history and all available relevant medical information to determine:

  • whether the condition has reached MMI;
  • whether the claimant’s compensable injury/condition has resulted in an impairment;
  • whether the impairment is permanent;
  • the degree of permanent impairment that results from the injury;
  • the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality.

The assessor must exercise their clinical judgement in making a diagnosis of permanent impairment and make deductions for any pre-existing injuries/conditions. They must then make clear the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are also to be clearly identified and calculated. If a related injury/condition had not previously been identified, its nature should be recorded in the report and any connection to the relevant compensable injury or medical condition specified.

Impairments arising from the same injury are to be assessed together. If there are impairments resulting from more than one injury sustained in the work accident, these are to be assessed together to calculate the degree of permanent impairment of the claimant.

There is an exception in the case of psychiatric or psychological injuries. Any impairments resulting from a psychological and/or psychiatric injury are to be assessed separately from the degree of impairment caused by physical injuries arising out of the same incident. The results of the two assessments cannot be combined. Impairment for secondary psychological injuries (conditions caused by for example, pain from physical injuries) are non-compensable.

The importance of timing and time limits

In NSW, the time limit to make a workers’ compensation claim is generally six months from the date of your injury or accident. You can still make a claim after this period but will need to show ignorance, mistake or absence from the State where you are making the claim as a reason/s for the late claim. A claim for injuries resulting in death or serious permanent impairment may be made within three years from the date of the injury or death.

It should be noted that the Workers Compensation Act allows an injured worker to only make one claim for permanent impairment compensation that results from any injury. After that, you can’t return and claim an increase in lump sum compensation, unless your condition deteriorates in the future.

This means the timing and assessment of a lump sum claim for WPI is very important. If you make such a claim too soon after the work incident and your WPI assessment is, for example, less than 10%, you will not receive any lump sum compensation and weekly payments will be limited to a maximum of five years and medical expenses for two years thereafter.

In NSW your date of injury (“DOI”) is also important. Different legislation applies depending on whether your injury was before or after 19 June 2012. Expert legal advice should definitely be sought if you’re unsure about which laws apply to your work injury.

Negligence and common law claims

If you believe your work injury was the result of negligence on behalf of your employer or workplace, you may also have a claim for damages through a common law claim, including for future and past economic loss (such as wages and superannuation).

Your assessment for WPI does affect, however, your ability to make a claim for negligence against an employer, in that you can only make such a claim if your WPI is assessed as 15% or greater.

The importance of legal advice

If your workplace injury results in permanent impairment, the workers’ compensation insurer may offer a lump sum amount against your compensation claim. This offer should only be considered after seeking advice from an experienced legal representative such as BPC Lawyers. This is because your response may prevent you later pursuing your common law right to claim damages from the injury, which potentially may be far larger than the lump sum on offer.

At BPC Lawyers, we offer a team of experienced Sydney workers’ compensation lawyers who have won multiple industry awards. We can explain whether your injury falls under Common Law or WorkCover and help you achieve the best outcome possible. Contact us today (02) 8280 6900 for a free initial legal consultation.

Injured at an Airport

I’ve Been Injured at an Airport. Can I Claim Compensation?

Whether you are there as a traveller or an employee, an airport is a busy – and potentially dangerous – place. For travellers, hazards may include slippery floors, crowded baggage claim areas, faulty stairs, escalators and more. For employees, working in congested areas or around large, complex machinery also carries certain risks. Of course, all of this begs a question. Can you claim compensation if you get hurt at an airport? Keep reading to find out.

Injured traveller’s and workers may be able to claim compensation for airport injuries

Your ability to claim compensation for an injury sustained while passing through or working at an airport depends on several factors. The most important of these is whether you have an insurance policy that provides coverage for accidents and injuries.

As an airline passenger, this type of insurance may be included with your ticket. Although flight/traveller’s insurance is quite comprehensive, it is crucial that you understand what’s covered and what’s excluded. By doing so, you’ll limit the chances that your claim is denied or disputed due to insufficient cover or misunderstandings. It is also imperative that you have evidence to support your claim.

If you’re an airport employee, you may be able to make a successful claim if:

  • You can prove that there was a violation of Australian occupational health and safety regulations; and
  • someone was negligent; and
  • that violation, coupled with negligence, caused or contributed to the accident in which you were hurt.

Qualifying airport injuries

Airport authorities/operators are legally obligated to provide a safe environment for travellers and workers. This means they must take reasonable steps to ensure that: 1) the airport is free from hazards; 2) that adequate warnings about existing or potential hazards are provided; and 3) that any hazards are addressed promptly.

Accordingly, you may be able to claim compensation if you suffered one of the following:

  • A slip, trip or fall injury;
  • a cargo or baggage injury;
  • a trolley or baggage carousel injury;
  • an injury sustained due to a hazard in the concourse;
  • any injury caused by inadequate, improper or otherwise defective infrastructure.

How to claim compensation for an airport injury

If you had current travellers’ insurance when you got hurt, you can simply claim compensation from the provider. However, if you didn’t get travel insurance or the provider says your injury isn’t covered, it is best to consult an experienced airport injury lawyer to discuss other options (if any).

For example, you may be able to claim compensation from the person/agency  responsible for your baggage or cargo injury. However, you will only be successful if you can prove that 1) the person/agency was negligent; and 2) that the negligence caused or contributed to your injury.

In any case, it is usually worth pursuing compensation. According to some estimates at least 200,000 travel insurance claims are made here each year.  Of those, only a handful (approximately 10 percent) are denied.

Making a claim for foreign airport injuries

You can claim compensation for an injury sustained at a foreign airport if you had international travel insurance at the time. These policies usually provide cover for cargo injuries, baggage injuries, inflight injuries and injuries sustained while you are in another country. However, not all policies provide all these types of cover. Therefore, as we have already noted, it is important that you understand what the policy includes when you purchase the insurance.

Foreign airport/destination injury claims can also be tricky because they often involve different laws and languages. To complicate matters even further, they may sometimes involve international agreements and other obstacles. At BPC Lawyers, our legal team has the skills and experience needed to ensure that you get the compensation you deserve.

In summary

No one wants to think about getting hurt while they’re traveling through or working at an airport. For travellers, an injury can easily ruin or force the cancellation of a holiday or business trip. For an airport employee, it can hinder their ability to do their job. The good news in either case is that it is possible to claim compensation for an airport injury.

As we have discussed, there are different methods for pursuing compensation depending on your specific circumstances. The best-case scenario if you were injured while travelling through an airport is that you had current international or domestic travellers’ insurance at the time. As long as the policy provided cover for your situation, you can simply claim compensation from the provider.

Airport employees can also pursue compensation for injuries sustained at work. In most cases, however, they must prove that the injury stemmed from negligence or a violation of applicable rules and regulations.

If you were hurt at an airport in Australia or abroad, our legal team is here to help. Contact us to schedule an initial consultation today.

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.

hit and run accident

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.

public liability

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.

gym injuries new issues

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 compensation claim NSW

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 02 8280 6900 or by email at  info@bpclaw.com.au

motor accident damages claim

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 Sydney personal injury lawyers before accepting settlement of your damages claim.

At BPC Lawyers, we have accredited Sydney 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.

Contributory Negligence

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 02 8280 6900 or info@bpclaw.com.au

injured in a motor vehicle accident

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 Sydney personal injury law specialist, Scott Hall-Johnston discusses what is critical in the consideration of these types of compensation matters.

Calculate Car Accident Injury Compensation

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.