follow us on facebook
CONTACT US 13 58 28
Category

Compensation Law

Contractor or casual employee? Which are you?

By | Compensation Law

It is the scenario that no one ever thinks will happen: you are at work when something terrible happens and you are injured through no fault of your own. If this happens you may be significantly out of pocket, as not only do you have medical expenses to contend with, but you are also without income. With any luck you have Income Protection Insurance, but if you don’t there is still hope that you will receive compensation by way of weekly benefit through Queensland’s workers’ compensation scheme (WorkCover).

Provided that your employment was a significant contributing factor to an injury, you may be entitled to statutory compensation through WorkCover. If you are classified as an ‘employee’ and the principal contractor was at fault for your injury, you might even be able to claim for more (what we call common law damages). However, if you are classified as an ‘independent contractor’, you will not qualify to receive workers’ compensation benefits. So which are you: A contractor, or a casual employee?

It is important to realise that even if you, or your employer, are of the belief that you are an independent contractor, there is a possibility that you may be considered an employee. This is because whether you are an employee or a contactor is not black and white. Instead, the question to be asked is who exercises the most control over the situation at work?

Cases like Stevens v Brodribb Sawmilling Co Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 75 AJLR 1356 have helped in developing a checklist of sorts to determine if you are an independent contractor, or a casual employee. The checklist includes:

  • How much control does the employer exercise over the work?
  • How is the worker remunerated?
  • Who provides & maintains tools and equipment?
  • Are there any obligations on the worker to provide the employer work?
  • Who determines the hours of work and holidays?
  • Is income tax deducted from the worker’s pay?
  • Is the worker able to delegate work to others?
  • How specialised is the work?
  • Is there any public representation that the worker is an employee?

You don’t have to check off the entire checklist to be considered an employee. For example, you might be contracted to work at a site, and you invoice the principal contractor for the work completed. Despite this method of remuneration, the principal contactor provides you with the tools and equipment required to do the work; they tell you what hours to work;  and all of your work is directed and overseen by the principal contractor. This might mean you are more like a casual employee than a contractor, and if you are injured, you might be entitled to claim workers’ compensation benefits.

Here are some examples to demonstrate.

Tradespeople

Tradespeople are perhaps the most legally contentious industry as many ‘contractors’ are often employees. To illustrate this, let us consider the scenarios of Bob and Kelly, two tradespeople who consider themselves to be independent contractors.

Bob is a painter who performs work for different people but always works for Jim whenever he is asked. In return for Bob’s loyalty, Jim provides all of Bob’s paints and paintbrushes as well as an apron with Jim’s logo on it. Despite the fact that Bob’s work is fairly standard, Jim refuses to let Bob’s apprentices do any of the work due as he believes that Bob is the best painter. Jim also takes any tax out of the hourly rate that he pays Bob to make tax time easier for Bob.

Kelly is a builder who likes knowing how much she will be paid in advance and always ensures that this figure is set before arriving at a job. Kelly also uses her own tools and equipment as she often performs difficult building work that not many people can do. Kelly will often get apprentices to do some work for her, especially when she wants to take a day off.

While both Bob and Kelly consider themselves contractors, the law will only recognise Bob as an employee. This is because the majority of Bob’s working situation is dictated to him by Jim, whereas Kelly is largely in control of her own work. Therefore, if they were both injured while working, only Bob would be able to make a claim for compensation with WorkCover as an ‘employee’ of Jim.

Cleaners

Most people would likely be of the opinion that if they engage a person to do cleaning, the person will be a contractor, whereas if they engage a company, the individual cleaners will be employees of the company. While this is true in most cases, it should be realised that if you engage an individual cleaner, it is possible that the law will consider them to be your employee. This is likely to be the case if you provide the equipment for the cleaner as well as paying them an hourly rate and setting their hours of work. This is similar to the example of Bob the painter. However, if the cleaner were to provide their own equipment and they were free to refuse to do cleaning work for you, it is likely that they would be considered an independent contractor.

Babysitters

Babysitting is an occupation that many people would consider not likely to result in an injury or subsequent compensation claim. However, it should be noted that babysitters could be considered employees. This means if they were injured while working, they could make a claim for compensation with WorkCover. The primary reason for this is that babysitters are usually told what times they are required to work and are under an obligation to do so. Furthermore, babysitters are rarely able to delegate work to other people due to the individual and personal nature of the job.

The question of whether you are an employee or a contractor is not as simple and as easy to discern as was once thought. Therefore, it is always wise to seek legal advice whenever you are injured at work, regardless of whether you consider yourself an employee or contractor. For further information, or if you have been injured while at work, contact our office on 13 58 28.

Do You have Trauma Insurance?

By | Compensation, Compensation Law

These days you can get insurance for just about anything – your house, car, home contents, health, travel and even for your pets. What if something traumatic ever happened to you? Did you know you can also get trauma insurance?

Trauma insurance can also be known as ‘critical illness’ insurance. Trauma or critical illness insurance is designed to pay you a lump sum of money if you are ever diagnosed with a significant illness or injury.  The illness or injury must be listed within the policy that is taken out. For that reason it is important to review the policy or obtain independent advice as to whether you are covered for the injury or illness that you think you should be covered against.

The most common trauma insurance claims are for cancer/tumour, heart attack (or cardiovascular disease), coronary bypass, and can also include:

  • Brain conditions such as Alzheimer’s, Dementia, Parkinson’s disease, stroke and head trauma;
  • Loss or paralysis of limb;
  • Osteoporosis;
  • Multiple Sclerosis;
  • Terminal conditions;
  • Organ transplant;
  • Lung disease;
  • Kidney failure;
  • Severe burns; and
  • Severe diabetes.

If you have an illness or injury that meets the eligibility requirements it is important to lodge the claim early.  You should also ensure you have medical evidence to support any claim.

If you do not have trauma insurance, or have inadequate cover, you should talk to a financial adviser or insurance broker to ensure you have a policy and level of cover that is suitable for you.

For further information or advice on trauma insurance, contact one of our injury lawyers on 13 58 28.

pill testing festivals

Pill Testing at Music Festivals: From a Lawyers Perspective

By | Compensation Law, Criminal Law

In the last few weeks, the news has been reporting on the drug-related deaths at music festivals, and whether the Government should allow pill testing at these types of events. This sparked an interesting debate between me and my father. On one side of the table (the older side) there was strong opposition to pill testing. On the other (more youthful and good looking side) there was a more colourful view on whether pill testing should be allowed – not that I condone the use of illicit drugs in any way, but each to their own.

After the lengthy, and at times heated, debate, I had a chance to ponder on the implications of allowing pill testing at music festivals.

For those who have missed the news, at music festivals people have the urge to take drugs such as ecstasy. I have not been to a music festival for a long time, so I am not sure if the point of the drugs is to make the music sound better, or to help with the social anxiety that youth seem to experience when they are not looking at their phone. It might even be the case that the drugs are cheaper than alcohol – have you been to a pub lately and seen the price of a beer!

Unfortunately, these drugs are purchased from less than trustworthy suppliers and can be laced with anything other than the drug. I heard in some cases ecstasy was being laced with laundry detergent!

Aside from resulting in sparkling clean insides, these drugs can cause serious injury or even death.

Testing of these drugs has been used in other countries, mainly supported at a Local rather than Federal level in Europe, as a harm-reduction intervention method. This has been used in the Netherlands, Switzerland, Austria, Belgium, Germany and France. The Australian Government has adopted a zero-tolerance stance on drug testing – despite only undertaking one trial – but even if the Government wanted to allow pill testing, would it be possible?

I firstly considered the effectiveness of the drug testing. The results on pill testing effectiveness has been mixed. There is evidence that suggests that it has helped reduce the frequency of overdosing and has increased knowledge about possible contaminants in drugs (such as laundry detergent!) and improved healthcare services. Research from Austria’s pill testing shows 50% of those who had their drugs tested said the results affected their consumption choices. 65% said they wouldn’t consume the drug and would warn friends in cases of negative results. So if it helps reduce harm, why not allow pill testing?

What about criminal consequences? If the Government allowed pill testing, could you be arrested by the police by going into the pill testing area? Technically, yes you can. During the trial in the Australian Capital Territory, the Police stated they would not be ‘actively’ targeting people who were getting their pill tested. Their main prerogative was to target and investigate the sale and supply of illicit drugs. If I look at this in a Queensland context, the police have the power to search anyone if they reasonably suspect that they have a dangerous drug in their possession. I would suggest that if someone is walking into a pill testing tent, there is a good chance they have a drug in their possession.

If pill testing was allowed, does this mean that it is legal to have drugs, as long as you only have them in the pill testing area? Significant amendments would need to be made to the Police Powers and Responsibilities Act as well as the Criminal Code Act to permit the possession of drugs in those areas, and to strip the police of their power to search a suspect. I would think there is more chance of George R.R. Marin finally finishing the next Game of Thrones book, or Disney making a good Star Wars movie than those Acts ever being amended.

Let us say those Acts were amended, and a person could confidentially walk into a pill testing area knowing they would not be arrested….what if the pill is bad (or rather even worse than it should be)? The pill testing tents should include an ‘Amnesty Bin’ (copyright pending, but I will allow you to use my word). I would expect it would be a requirement of the police that the bins contain bleach so all the discarded drugs were immediately rendered inert. The bins would be placed in a discreet location with a pill testing official allocated to ‘observe’ and record the number of discarded pills. But what if a festival goer decided not to discard the drug, but instead on-sell it to some poor unsuspecting person with the knowledge that the drug will most likely cause injury or death – it’s not their problem, so who cares, right? Wrong. If this were to occur, it would result in a criminal offence. I’m no criminal lawyer, but probably manslaughter.

What about the liability of the pill testers? If they have an official observing what drugs are kept, or discarded if they see a festival goer fail to discard a bad drug, should they be reporting it to the police? Or because it happened in this criminal black hole, is there any obligation for the official to report a potential crime?

On the other hand, what is the liability of the pill testers themselves? In the pill testing trial, they made everyone sign a waiver before entering. The waiver discharged any person who was connected to the provisions of the pill testing services against any personal injury or death suffered by the festival goer or in any other way. It also made the person acknowledge that they were not recommending people to take the pills, as no illicit substance is ever safe.

But for those that didn’t study law, or even those that did but fell asleep during Contracts 101, waivers are effectively meaningless when there is a negligent party. Lets say the pill tester enjoyed the odd ecstasy tablet as well, or had a few too many beers, or even just forgot their glasses and misread the test result. Maybe the equipment is faulty, or the tester just makes a mistake. If the person testing the pills told the festival goer that their pill was ‘safe’ and that person went on to take that pill and have adverse effects because the pill was laced with laundry detergent, would the pill tester be liable? Arguably yes, even though a waiver was signed it doesn’t protect from negligent behaviour.

What if the festival goer was already under the influence? Can they even legally sign a waiver? Can they give consent to their own death? The answer to both of those is ‘no’.

Who would be responsible: the pill tester, the organisation running the pill testing, or even the Government for allowing the pill testing to be carried out?

Would there be any criminal consequences on the pill tester? If they test a pill and hand it back to the festival goer, does that make the pill tester a supplier? If the pill causes harm or death, is the pill tester responsible for that harm or death because they supplied the pill? These are very complicated questions that need to be grappled with.

And what about the defences under the Civil Liability Act if someone makes a personal injuries claim? Is taking a drug an obvious risk? Is it a dangerous activity? Is it criminal behaviour? I would have said yes, but if the Government permits pill testing, that might exclude those defences from being available.

The supporters of pill testing argue that pill testing reduces the likelihood of harm and can save lives. I would add to the argument that pill testing would be no different to needle and syringe programs introduced by the Government. If the Government provide programs for heroin addicts, why not provide a program for someone who takes ecstasy?

People who oppose pill testing say it is sending the wrong message to young people across the country and that it will encourage drug use and puts society on a slippery slope to decriminalisation or legalisation of illicit drugs. I would caveat that argument by the fact that laws are constantly evolving. What was once illegal, is now every day. It was not long ago that same-sex marriage was illegal. Even other drugs are being legalised in certain ways, like Cannabis for instance.

Stuck in the middle are the politicians, police and other authorities – concerned about reducing harm, but charged with making and enforcing the law.

In my humble opinion, although both sides of the argument are presenting sound, and valid arguments, pill testing will never be permitted in Australia due to the countless effects on other laws – but as once said by the great Obi-wan Kenobi, “only a Sith deals in absolutes” so I might amend that statement by saying it is ‘unlikely’ pill testing will be permitted.

If you are for or against, share your thoughts in the comments section on our Facebook page.

Ipswich Lawyers

How to Sue for Emotional Stress in Queensland

By | Compensation Law

Some injuries are invisible to the naked eye, but can be just as devastating as physical impairment. Emotional, mental, and psychological trauma may play a key role in a person’s quality of life. Sometimes, psychological injuries can go hand-in-hand with physical injuries, making it harder to heal and becoming a critical issue in many personal injury claims. However, sometimes there is psychological damage without a physical injury, which can add to the complexity of filing a claim for compensation. If you or a loved one is experiencing difficulties of this nature, it is important to seek help from both medical and legal professionals in order to receive the care and compensation that you need and deserve.

Can I Receive Compensation for Psychological Injury Alone?

Occasionally, a situation will arise where an individual will be suffering from emotional trauma absent any accompanying physical injury. In most cases, the person suffering will be able to receive compensation.

Examples of Psychological Injury

Bullying in the workplace is a common cause of these types of injury and usually is due to the failure of management to take reasonable action. In such cases, an employer is required to investigate the circumstances and instigate disciplinary action, even if the employer comes to an incorrect conclusion.

When investigating the employee’s circumstances, an employer must conduct itself in a reasonable manner so as to respect and protect their employees. For instance, an employer will likely be held accountable for conducting disciplinary action over the phone with no notice and with no opportunity for the employee to respond if such behavior results in psychological injury.

‘Nervous shock’ is another type of pure psychological injury that can be caused by witnessing a tragic event or serious accident that causes a fatal injury. Nervous shock may also occur when a family member of a fatal accident victim hears about the accident and has to deal with the aftermath of the death, for instance identifying the body or attending to them in an intensive care ward.

Symptoms of Psychological Injury

Psychological injury can manifest in a broad range of symptoms, including mental, emotional and even physical ones. Diagnosis and treatment of such injuries is not a straightforward process. It can often take a long time to identify a treatment plan that works for the particular circumstances of the injured party. Conditions such as anxiety, depression, adjustment disorder, panic disorder, and post-traumatic stress disorder can cause an unpredictable number of symptoms including, but not limited to: mood swings, insomnia, irritability, dissociation, difficulty concentrating, difficulty eating, fatigue, chronic anxiety and fear, withdrawal, dissociation, periods of mania, confusion, and more.

Proving Psychological Injury

When fling a compensation claim for psychological injury, not only will you need to prove that there was a duty of care owed, that the duty was breached and that the breach caused your injury, but you will need to demonstrate that you have suffered damage in some way. This can include past and future expenses, lost wages, and even future economic losses. You can show damage through proof of negligence and proof of medical treatment. By seeking medical treatment, you can establish both the existence of your injury, and the cost of the injury.

Compensation Potential

The amount of compensation you can receive for psychological injury has the potential to be very large, but will depend on both the severity of the injury and the duration of the injury. Unsurprisingly, the worse the effects of the condition and the longer-lasting the condition, the more compensation you will be entitled to receive.

In short, psychological injuries are extremely serious and you may be entitled to receive compensation for your condition. If you or a loved one have experienced trauma at work, it is vital that you immediately seek both medical and legal advice.

This Call May be Used for Quality and Training Purposes….and Evidence if We Sue You!

By | Compensation Law, General Information

We have all heard the pre-recorded statement that the telephone call will be used for quality and training purposes. But what if that warning is not played, and what can they, or someone else, do with the recording?

And what about that recording button on your mobile phone. Can you record a conversation with someone and use it against them?

This short article generally explores the privacy rights around recorded phone calls, and the uses of the recording as evidence in Court proceedings.

It all begins in the Invasion of Privacy Act 1971 as to whether recording of a conversation is legal.

There is no offence if the recording is of a telephone conversation to which you are a party, or your recording unintentionally picks up another conversation that you are not a part of – some of you might have seen the episode of Suits where Samantha uses Alex’s daughter to ‘accidentally’ record a conversation to then be used in a deposition. Although it might have worked in Suits, this does not work in real life. This would in fact be a breach of the Invasion of Privacy Act 1971.

So, recording a conversation to which you are a part of is not illegal.

The next question is whether you can use that recording as evidence for whatever reason? Maybe you want to record your ex in a family law dispute? Maybe you want to record a witness in an injury claim?

The Invasion of Privacy Act 1971 provides that it is an offence to communicate or publish that recording, or a report of the recording, of the private conversation. The penalty is imprisonment of up to 2 years or a fine of up to $5,222.00.

However, you can use the recording if the other party to the conversation gives their consent, whether it is expressly given (ie they say they agree to you communicating or publishing the phone call) or it is implied (when the pre-recorded statement says the telephone call will be used for quality and training purposes and you continue with the phone call anyway).

The use in legal proceedings is limited, and makes the recording inadmissible as evidence in civil or criminal proceedings unless consent is given to use the recording.

So what can you do with the recording if you can’t use it as evidence? Perhaps you can produce a diary note of the conversation from the recording. Perhaps you can produce an affidavit as to what was discussed in the conversation from the recording. In either case, the document might put you in breach of the Invasion of Privacy Act 1971 by producing a report of the recording.

It appears at this stage the extent of which you can use a telephone call recording without consent is yet to be truly tested in the Court.

In the example of an injury claim where you are recording a witness, do you need to disclose the recording or written record of the recording? Setting aside the issue of whether it is legal to communicate or publish the phone call, we turn to the Uniform Civil Procedure Rules 1999. If you have the witnesses consent, you can obviously disclose the recording, or written record. If you don’t want to disclose it, rule 213 of those Rules allows you to claim privilege to the document.

There are three types of privilege that you can claim: advice privilege, litigation privilege and third party privilege.

Advice privilege applies where the communication in question was made for the purpose of giving or seeking legal advice. Advice privilege can also protect confidential communications between a client and third parties made for the dominant purpose of enabling the client to obtain legal advice – such as a Barrister.

Litigation privilege relates to documents brought into existence for the purpose of use in legal proceedings, or for obtaining or collecting evidence to be used in the legal proceedings. This includes statements of potential witnesses, and surveillance film taken for potential use in litigation.

It is important to note that if you were to claim privilege to a statement, that privilege is waived by conduct which is inconsistent with the maintenance of the privilege – such as discussing the contents of the privilege statement with a third party.

If you need any advice regarding recorded conversations, contact one of our lawyers on 13 58 28.

Hunold v Facebook

By | Compensation, Compensation Law

You might have read our previous articles about the effect of social media on personal injuries claims. Our firm recently had the opportunity to see first hand how social media profiles can effectively destroy an otherwise solid personal injury claim.

Our firm acted on behalf of Mr Kris Hunold in a personal injuries claim against the Queensland Police Service. Judgment was delivered on 23 March 2018 (see Hunold v Twinn & The State of Queensland [2018] QDC 43).

Mr Hunold had been out in Surfers Paradise in 2009. At around 4:00 am two unidentified females approached Mr Hunold’s sister and cousin on the footpath and a physical argument began.  Mr Hunold stepped in to assist and protect his sister and cousin when police officer Twinn approached him from the rear, pinned him to the ground, struck and detained him.

Mr Hunold was arrested for public nuisance and alleged he was injured in the process – specifically a fracture of his vertebrae. Mr Hunold claimed the actions of Twinn amounted to an assault and battery.

The District Court found that the actions did amount to assault and battery, and Mr Hunold won his claim.

However, even though Mr Hunold won his claim, the award for damages was a miserly $27,500.00 being $11,000 for general damages, $1,500 for out-of-pocket expenses and $15,000 for past economic loss.

Mr Hunold appealed this decision to the Court of Appeal where he was given leave to appeal the decision, but the appeal was then dismissed (see Hunold v Twinn [2018] QCA 308). The Court of Appeal ultimately agreed with the findings of the District Court.

So how did Facebook effect the claim? In the Court of Appeal decision it was said from the findings of the District Court “her Honour made specific findings that the applicant was not as physically restricted as he had maintained in his evidence, having regard to photographic evidence obtained from his Facebook page. Again, there were nine instances of activity shown by the photographs not consistent with the applicant’s evidence as to the extent of his disabilities.”

During the original proceedings it was submitted on behalf of Mr Hunold that it is difficult to make any real assessment of how a person is truly feeling by looking at what they choose to present to the rest of the world on their Facebook page. In the real world, people do not post pictures of themselves feeling sore or sad, but rather just those moments where they are happiest and enjoying life which might not be all too often. The original Judge was not critical of Mr Hunold living his life, but did find the pictures and videos to be evidence of what Mr Hunold was capable of doing.

If you are in the process of making a personal injuries claim, if you use any social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim, just as in Mr Hunold’s claim.

Had certain photos or videos not been on Mr Hunold’s Facebook page, the award for his damages could have been very different.

If you have started an injury claim you should talk to your lawyer about reviewing your Facebook, or other social media, pages.

We strongly recommend that you bear in mind that the Respondent to your claim, or any future claim, may investigate your social media profiles ,or even your friend’s profiles. Before posting comments, pictures or videos you should bear in mind whether these posts might ‘suggest’ that you are capable of more then you actually are.

Even if your profile is closed to the public, the Respondent may still be able to obtain an Order from the Court for you to disclose the entire content of your social media profile. In Mr Hunold’s case, he was ordered to ‘friend’ the opposing legal representative so that access was unrestricted.

For more information about personal injuries claims or the impact of social media contact one of our injury lawyers on 13 58 28.

Bullying and Harassment at the Ipswich Hospital

By | Compensation, Compensation Law

The Queensland Times newspaper recently published an article suggesting a recent spike in bullying and harassment at the Ipswich Hospital.

This article suggests that 33% of junior doctors at the Ipswich Hospital have experienced bullying, discrimination or harassment at work. This had apparently increased from 9% in 2017 [based on a survey conducted by the Resident Hospital Health Check].

The Logan Hospital came out worse at 37%, and the Darling Downs Health Services were slightly better at 32% for this year.

Across the State, these figures increase to 37.9% on average, but down from 47% the year prior.

The Hospitals adopt a zero tolerance approach to bullying, but this appears to not be enough to stamp out the culture according to this survey.

So if the State figures are reducing, but the Ipswich Hospital has had such a dramatic increase in bullying, discrimination or harassment at work, what is going on, and if you are one of those victims what can you do about it?

Every worker, no matter gender, age, race or occupation is entitled to be free from harassment in their workplace.

You might have options to protect you through the Anti-Discrimination Act 1991 if you are discriminated or harassed because of:-

  1. Gender;
  2. Age;
  3. Race;
  4. Impairment or disability;
  5. Religious or political beliefs;
  6. Sexuality; or
  7. Pregnancy or marital status.

or the Workers Compensation and Rehabilitation Act 2003 if you are subjected to:-

  1. Bullying;
  2. Intimidation; or
  3. Unreasonable management action, taken in an unreasonable way.

Bullying and harassment can be from a co-worker, a manager, or supervisor but is not acceptable in any situation.

Sometimes your employer can be responsible for the bullying or harassment by one of their employees. This is known as vicarious liability.

An employer would not normally be held vicariously liable if they can prove that they took reasonable steps to prevent the harassment. Queensland Health have adopted the zero tolerance policy, but the test is a bit more complicated than just adopting that policy. Something must be done to protect those that care for others.

In some instances bullying and harassment can be easily identifiable, such as, a physical assault that is witnessed by others, however, there are some instances where it is sometimes difficult to prove that bullying or harassment has occurred.

The survey suggests that only 5% of the bullying or harassment that occurred in the Ipswich Hospital was reported, and of those only, 25% were appropriately addressed. 67% of those surveyed feared that there would be negative consequences if they reported the bullying or harassment.

If there is fear of negative consequences, then why would someone report bullying or harassment, but if it is not reported it undoubtedly makes it much more difficult to prove. By not reporting, it allows those bullies to get away with their behavior. It is not tolerated in the schoolyard, so why should it be tolerated in our Hospitals.

If you have experienced bullying or harassment time limits apply.

For complaints of discrimination or harassment, you only have 12 months to lodge your complaint in writing to the Anti-Discrimination Commission of Queensland or the complaint may not be able to be investigated.

For WorkCover claims, you must lodge your application for workers’ compensation with WorkCover Queensland within six (6) months of your injury.

If more than six (6) months lapses between the time of the occurrence of the injury and lodging the claim, the claim may not be granted by WorkCover Queensland without a reasonable excuse for the delay.

If you have the right to make a common law claim for damages you have three (3) years from the date of injury or accident to file court documents or serve a compliant Notice of Claim for Damages or you will forever lose your right to make a claim.

For more information or assistance for bullying or harassment complaints call one of our injury lawyers on 13 58 28.

HISTORICAL APPLICATION TO SUPREME COURT – Institutional Child Sexual Abuse

By | Compensation, Compensation Law, General Information

In 2016 the State Labour Government introduced (via the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016) amendments to the Limitations of Actions Act 1974 effectively removing statutory limitation period for anyone who was the victim of institutional child sexual abuse and had not brought a claim.

Last week one of our Senior Personal Injury Lawyers, Abe Arends instructed Counsel in an application by a client to set aside a settlement agreement the client had reached with a prominent Brisbane School in 2002. Our client was sexually abused by the then school counsellor of the school, and settled a claim for psychological injury as a result of that abuse. The limitation date had well and truly expired and that was one of the issues our client faced if he continued with the claim and therefore our client settled for a sum which at the time we argued was manifestly inadequate.

For those who have previously settled claims, the Act also gives the courts the power to set aside those agreements if the court wishes to exercise its discretion and consider it “just and reasonable” to do so.

Congratulations to Abe and the team for their commitment to this matter. This is the first of these types of applications in Queensland.

The Judge has reserved his Decision on the matter.

Join the Drive for Safer Roads

By | Compensation Law, General Information

Every year approximately 1,300 people die on Australian roads. Queensland’s death toll alone accounts for an estimated 300 fatalities. Additionally, over 3,000 people in Queensland are seriously injured in road accidents leaving them disabled, out of pocket and unable to return to work.  Tragically, 90% of all road accidents are easily preventable if the driver was not speeding, under the influence of alcohol or merely paying attention to the road.

A few safety driving tips for when you’re driving:-

  • Switch your phone to silent or flight mode as soon as you get behind the wheel and let everyone know you’re driving ‘phone-free’ and remove pressure to be in contact.
  • Driving tired affects reaction times and impairs judgement. Take a break or don’t drive if you’re tired.
  • Regularly check your speed to ensure you are travelling within the posted speed limit; most crashes happen at less than 10 kilometres over the speed limit.
  • If the weather, traffic or road conditions are poor, you may need to slow down, increase the distance between you and the vehicle in front, and travel below the speed limit to stay safe.

Every person has the right to travel and arrive home safely when using Queensland roads and by being aware, you can do your bit to reduce the chance of an accident. However, as we cannot control other people’s actions while driving, it is important to know what you are entitled to if you were ever to find yourself or a loved one injured, disabled or killed from an accident.

If you or a loved one have sustained an injury in a car accident you may have the right to make a common law claim for damages. In Queensland you have three (3) years from the date of injury or accident to settle your claim or file court documents or you will forever lose your right to make a claim.

For more information about motor vehicle accident claims contact one of our injury lawyers on 13 58 28.

Child-Sexual-Abuse

Redress Scheme for People who have Experienced Child Sexual Abuse

By | Compensation Law

It is anticipated that the Commonwealth Redress Scheme will start on 1 July 2018 and will run for 10 years until 30 June 2027.

The Scheme will provide support to people who were sexually abused as children while in the care of an institution. An institution  is any place that was run by the Commonwealth (which includes places such as the Australian Defence Forces and cadet schools and onshore immigration detention) but will also extend to places run by state governments, churches, charities and other non-government organisations, if those institutions opt in to the Scheme.

At this stage we are still waiting to see if the State of Queensland will join the Scheme, and to see a final list of non-government Queensland organisations. Stay posted to see which organisations opt in.

Subject to the passage of legislation, people can lodge applications from 1 July 2018.

The Redress Scheme can provide three things to victims of child sexual abuse:

  • access to psychological counselling;
  • a direct personal response – such as an apology from the responsible institution for people who want it; and/or
  • a monetary payment.

Payments will be assessed on a case-by-case basis, reflecting the severity and impact of the abuse experienced with a maximum of $150,000 and we are yet to see a final framework on how that assessment will occur.

The Redress Scheme is an alternative to getting compensation through the courts – you can do one or the other, but not both.

Access to the Redress Scheme depends on:

  • the type of abuse a person experienced
    • It must include sexual abuse.
    • An institution must be responsible for the abuse. The Scheme does not cover non-institutional abuse, such as by a family member.
  • where and when it happened
    • The abuse must have happened when the person was aged under 18.
    • It must have happened before 1 July 2018, when the Scheme starts.
    • The institution or organisation responsible for the abuse must have joined the Redress Scheme. So far, only the Commonwealth, New South Wales and Victorian governments have agreed to join the scheme.
  • a person’s life now.
    • The person applying must be an Australian citizen or permanent resident.

For more information or assistance about the Redress Scheme contact one our injury specialists on 13 58 28.

Worker Compensation for Casual Employees

Workers Compensation for Casual Employees

By | Business, Compensation Law

Casual employees make up a fairly large portion of the Australian workforce, with over two million people employed casually. Casual workers generally are employed in temporary jobs that have irregular hours and are not guaranteed to be ongoing. Permanent workers are entitled to more benefits than casual workers. For instance, casual workers aren’t entitled to paid sick or holiday leave.

Casual employees are forced to endure job uncertainty and balancing opportunities to work full time. This can make them hesitant to exercise their rights and report workplace safety issues or injury. However, in Australia casual employees are just as entitled to workplace safety as their fulltime counterparts. Below, you will find a brief overview of casual employee workers compensation issues. If you are injured on the job, contact a lawyer today to take advantage of these rights.

WorkCover

Casual workers are able to file compensation claims to cover the expenses they incur after being injured at work. Though each territory has legislation and its own governing body, statutory compensation is implemented across Australia. The majority of workers are covered by the WorkCover system in their State or Territory. However, some employees of large national employers might fall under the Comcare system.

Casual Employees

What Can Workers Compensation Coverage Provide?

If you are a casual employee who suffers a work-related injury or illness, workers compensation may provide you with: weekly benefits, medical and hospital expenses, rehabilitation services, and/or a lump sum for permanent payment. These benefits are determined by the particular compensation scheme and each government regulates said scheme in the respective state or territory.

What to do if Injured While at Work?

  1. See Your Doctor: If you are injured while on the job, you should seek medical attention immediately. Do not postpone medical treatment until your workers compensation claim assigns you a doctor. Instead, seek treatment from your regular physician as soon as possible.
  2. Report Injury to Employer: If you are injured while on the job, reporting the injury to the workplace should be done as soon as possible. Even if the injury is minor, it is still important to inform your supervisor or manager in case the injury is aggravated by further exposure to workplace conditions. You should do so in writing so as to substantiate your claim and potentially demonstrate the worsening of the condition.
  3. Report Injury to Representative: If you are part of a union, report the injury to your union delegate. Otherwise, report to your OH&S representative.
  4. Lodge a Claim with WorkCover: In the case of a minor injury, you may not need to file a WorkCover claim. However, if your injury is severe enough to impact your everyday life or affect your ability to work, then you should seek support by filing a WorkCover claim, either with your employer or directly through the WorkCover provider.

The claim form should be made available by either your employer or the Post Office and ought to be filled out with your doctor’s assistance. You could also find the forms online.

Do not sacrifice your rights as an employee for fear your temporary job will be threatened. Employers are required by law to treat you fairly and you will likely be covered in the case of a workplace injury. Contact a lawyer today if you have any questions about your workplace injury.

Employers of Casual Workers

All employers throughout the States and Territories of Australia are statutorily compelled to provide workers compensation for all workers…even temporary, or casual, ones. If you employ casual workers, then it is important for you to understand the duty that you owe to them as their employer.

Course of Employment/At Work

For an employee to recover under a work compensation claim, their injury must be incurred through the course of their employment or at work. “In the course of employment” covers a broad number of situations. Generally, when an employee is injured in the course of employment, it is “no fault” which entitled them to receive compensation even if they did not act in accordance with standard procedures set by the business. Exceptions to this would usually have to include egregious cases of misconduct.

Two Broad Categories of Compensation Payments

  • Weekly Payments: payments that are made to an employee to compensate for the loss of income stemming from the work-related injury or illness
  • Medical Expenses: payment to compensate for medical and/or hospital costs arising from the work-related injury or illness

Obligations as an Employer

Your obligations as an employer will differ slightly depending on where you are in the country as each state or territory determines employee rights and employer obligations based on individual legislation. As an employer, you generally have four main responsibilities:

  1. Provide a safe workplace so as to avoid risk of employee injury.
  2. Provide support and assistance in the event of employee injury.
  3. Ensure insurance coverage to fully cover employee in case of injury.
  4. Potentially aid the employee’s return to work.

If you have any question about insurance coverage for casual employees, contact a lawyer today to protect yourself, your rights, or the rights of your employees.

Sexual Harassment

Sexual Harassment in Your Backyard?

By | Compensation Law, Criminal Law

There has recently been a lot of publicity on celebrities bullying and sexually harassing co-workers….but what can you do if you have experienced sexual harassment in your own backyard?

Every worker, no matter if you work with a celebrity or not, should feel safe from sexual harassment in their workplace.

So what should you do if you suffered from sexual harassment?

Lodge the claim early!!! 

You only have 12 months from the date of harassment to lodge a complaint with the Anti-Discrimination Commission otherwise you will forever lose your right to make a complaint.

The Commission might only accept the claim outside of those times if you have a reasonable excuse for the delay.

Once the claim is lodged, you then need to prove the claim.

Evidence to prove fault

As Queensland has a fault based system, you will need to be able to prove sexual harassment has occurred. This means collecting evidence. To start with statements should be taken from anyone who witnessed the harassment.

Attempt to resolve the claim

Once the complaint has been lodged, the Anti Discrimination Commission will contact your previous employer and the person who harassed you to discuss the matters complained of and to see if they would be willing to resolve the matter informally.

If the matter cannot be informally resolved, the Anti Discrimination Commission will arrange a Conciliation Conference for the parties to meet either face to face, or by way of telephone.

The purpose of the Conciliation Conference is to enable the parties to discuss the complaint and explore options for settlement of the dispute.

If the complaint cannot be resolved then you may elect to commence proceedings through the Queensland Civil Administrative Tribunal.

Get legal advice

In any case, it is important to get legal advice about your particular set of circumstances. Failure to get legal advice could result in you missing compensation you might otherwise be entitled. In some cases, you might even be able to make a workers’ compensation claim.

For more information or assistance contact one our injury specialists on 13 58 28.

Injured in the Gym

Injured in the Gym… Who’s to Blame?

By | Compensation Law

No pain, no gain as the saying goes… but what do you stand to gain if you suffer real injury while at the gym? Usually, you trust that your gym and its array of trained professionals will keep you safe while you pursue your fitness goals. However, a recent rash of personal training accidents and injuries puts that trust into question.

Gym Death North of Brisbane

Late last month, a fifteen year-old boy suffered a serious injury in a gym which later resulted in his death. The teenager, Ben Shaw, was discovered trapped under a 98kg bar. When Shaw was finally spotted, his discoverer cried out for help and immediately removed the bar from the boy’s neck. Two others performed CPR on Shaw until the medics arrived.

Frighteningly, doctors later determined that Shaw had been underneath the weight for up to half-an-hour. Though on life support for a while, his family eventually made the heartbreaking decision to turn it off.

The gym in question had a rule stating that children younger than 16 were not allowed to use weight lifting equipment without supervision. The gym also stated that members used the equipment at their own risk. However, it is clear that, not only should the 15 year-old have been supervised, but staff were inattentive to the point of potential negligence as a member had lain incapacitated for up to thirty minutes.

Tort Law: Negligence

A Tort is a civil wrong and individuals generally bring tort claims to right a wrong or correct conduct. Negligence is one of the most common Torts in Australian law. Negligence itself is “a failure to take reasonable care to avoid causing injury to another person.” In proving negligence, four steps must be proven by the plaintiff.

  1. That a duty of care existed in the attendant circumstances;
  2. That the defendant/respondent violated their duty of care through either inaction or incorrect action;
  3. That the plaintiff’s injury or loss would have been foreseen by a reasonable person in the same circumstances, and;
  4. That the injury or loss suffered by the plaintiff was caused by the defendant’s breach of duty.

In general regards to a gym, the law requires that a gym provides their members with services that are rendered with due care and skill and are fit for their purpose. However, when a personal trainer is involved, they too owe a client a duty of care.

Personal Trainers & Liability

A case from central Queensland in 2014 demonstrates how an injured client can file a claim against both the gym and his personal trainer in the case of serious injury.

Daniel Popp, a 30 year-old father of five, went to one personal training session at Snap Fitness, one of Australia’s most popular gym chains, and later ended up in the emergency room. The diagnosis? Rhabdomyolysis: “the rapid breakdown of seriously injured muscle tissue severe enough to threaten the kidneys.” Though usually present in illicit drug users, car crash victims, and marathon runners the doctors attributed Popp’s condition to excessive exercise. Popp filed negligence claims against both Snap Fitness and the personal trainer.

Though many gyms employ Personal Trainers as contractors as a way to reduce vicarious liability, injured clients still have a right to hold both parties accountable.

If You Have Suffered a Gym Injury

Know What You’ve Signed: When you join a gym, you are required to sign a liability waiver. Though courts are not required to uphold liability waivers, you cannot know the strength of your claim until a lawyer reviews what you have signed. A liability waiver which is overbroad or unduly unfair in favor of the gym will be deemed unconscionable by the court, but it is necessary to have a lawyer look it over so they can advise you on your likelihood of success.

Injury with Personal Trainer: In general, it is acknowledged that clients are owed a duty of care by their personal trainers to take reasonable precautions ensuring that the exercise regime they have designed will not cause the client harm. To succeed in a claim against a personal trainer you must:

  1. Prove they have breached the duty of care that they owe you by failing to take the necessary precautions to prevent injury, and
  2. Prove that the injured you suffered was caused by their breach (or breaches) of duty.

Because many personal trainers are hired by gyms as ‘contractors,’ it is important to ask a lawyer what your best options are moving forward; whether you’d have a case against the personal trainer, the gym, or both.

Injury at 24hr Gym: Broadly speaking, your ability to recover from a 24hr gym depends on how you were injured. Though staffed in a regular way during business hours, there will probably be a skeleton crew working in the wee hours. Generally, improper use of equipment will be your own fault, but in the case of faulty equipment you may have a case against the gym.

Work Hard & Be Smart

If you sustain an injury in the gym, be smart and seek legal help. You go to the gym to protect and cultivate your health, trusting that the staff will help you do just that. A Ipswich lawyer can review your gym policy, advise about potential claims, and help you seek justice in the event that your trust is misplaced.

Charity Ride By McNamara & Associates Team Ipswich

Legal Help for Cyclists

By | Compensation Law, General Information

Cycling Popularity 

Whether cycling for leisure or to commute, millions of Australians ride a bike each week. Growing in popularity since the early 2000’s, cycling has increasingly taken hold in Australian culture. Fueled perhaps by the success of Australian sports heroes such as Cadel Evans or a surge in fuel prices, the number of cyclists has risen dramatically in the past decade, moving from 13% of the population in 2005 (2.1 million people) to 19% in 2015 (3.7 million). In particular, cyclist numbers increase during Spring and Summer, as pleasant weather coincides with summer breaks and vacationing tourists taking a ‘cycling holiday.’ 

Cycling Accidents 

Unfortunately, the increase in cycling has also translated to an increase in cycling accidents. In fact, the Australian Institute of Health & Welfare reported an increase of 7.5% p.a. in life-threatening cases involving cyclists from 2001 to 2010. Similarly, driver aggression and inattention towards cyclists has increased as well, with incidents of cyclist-vehicle door opening crashes (‘dooring’) escalating in at least one Australian state by 125% from 2000 to 2010. 

With almost two million more cyclists on the road, safety has become a critical concern, inspiring many Australian cities to redesign roadways and adjust laws to accommodate the growing number of cyclists. If you or someone you know is one of the millions of people participating in cycling, it is important to be prepared and know what resources are available in the event of a cycling related injury. 

What is a ‘Cycling Accident? 

A broad number of situations are covered under the umbrella of ‘cycling accident,’ including: accidents involving bicycles and vehicles resulting in injury, injuries caused by ‘dooring,’ injuries caused by unsafe or poorly maintained infrastructure, courier accidents, and any other accident involving a bicycle which results in injury on a roadway or a public place.  

Where to Begin? 

If you find yourself injured in a cycling accident, first obtain as many details of the event as possible: exchange information with the at-fault party and any witnesses, take note of the vehicle (make, model, and plate number), take photographs of the vehicle, your bike, your injuries, and the scene of the accident, take special note of factors such as weather, traffic, time, and date.  

Contact the Authorities 

If you are injured in the accidentcontact the police because an official police report is often necessary in order to file a cycling accident claim. It is best to contact the police immediately and have them attend the scene of the accident but if you choose to wait, keep in mind that there are limits to how late you can file a report. If you do not report the accident within the allotted time period, you may still be able to report it after completing additional paperwork. However, this is not a guarantee so the sooner you contact the police the better.   

If you are involved in a cycling accident you should always contact a lawyer. Even if the at-fault driver cannot be identified, you may be entitled to compensation under Compulsory Third Party (CTP) insurance. CTP covers accidents on public roads, compensating for personal injuries, and on road accident compensation claims, including those involving bicycles.  

It is important to contact a lawyer immediately because cycling accident claims have very strict time limits, usually requiring that you give notice within 9 months and commence a claim in court within 3 years from the date of injury. In cases where the identity of the at-fault driver is unknown, you are required to give notice within 3 months though if there is a reasonable reason for delay, you can push the time limit up to nine months after the accident. The sooner you get your claim started, the better. 

Damages 

If you are injured, seek medical attention soon, if not immediately, after the accident. By seeking medical advice/attention right away you can get treatment for current injuries, identify injuries you overlooked, prevent further injury, and demonstrate medical evidence that your damages resulted from the accident. 

It is also important to ascertain what other damages may have been caused by the accident. Get an assessment of your bike, any bike equipment, and accessories (like a GoPro). Obtain documentation of how much the damage cost you to fix or replace.  

What are the Chances of Success? 

A criminal claim for a cycling accident may not result in compensation, but civil claims have a much higher chance for success because of the different burdens of proof in criminal and civil cases. Criminal cases require proof of negligence beyond a reasonable doubt, but civil cases have a lower threshold and focus on the likelihood that negligence took place. The simple fact that an accident happened implies negligence and other factors (such as cellphone use) can affect the overall balance implicating a driver’s negligence.  

A successful claim will result in compensation. The amount of the compensation will reflect the amount of your damages and the circumstances of your claim. In general, the amount you are compensated is meant to restore you to where you would have been had the accident not occurred.  

Stay Safe! 

Though cycling is popular, viable, and efficient, roadways in Australia remain a dangerous place. However, there is help available. If you find yourself injured in a cycling accident, don’t hesitate to contact a lawyer and exercise your legal rights. Most importantly, stay safe!  

Drunk Driving in Ipswich

Drink Driving Can Cost You!

By | Compensation Law

Most of us are aware of the significant consequences that can result from people drinking and getting behind the wheel.

Alcohol is one of the most widely used drugs. It’s a depressant which slows down the body by acting on the central nervous system, affecting physical and mental function. Excessive alcohol can cause cognitive impairment, affecting judgment, memory and reaction time(3).

Drinking alcohol can affect drivers and driving performance by:

• slowing down reaction time — crucial in an emergency situation
• making it difficult to multi-task — an essential skill for safe driving
• causing poor judgment — we may have trouble judging distances, how fast we’re driving and the speed of other vehicles
• reducing attention span — so we don’t notice other drivers and/or vehicles
• affecting vision and hearing — reducing our ability to identify driving hazards
• creating over-confidence — we may feel more confident after a few drinks but in fact, we’re less able to cope with unexpected events. We might take risks that we normally wouldn’t.

Drink driving remains a major contributor to fatalities and injuries on Australian roads, even though a BAC limit has been in place for more than 30 years.
Apart from the social and criminal consequences of injuring or killing a passenger or other third party whilst driving intoxicated, there can be significant financial consequences as well.
In Queensland people that are injured in an accident involving a motor vehicle are able to make a claim for compensation against the CTP insurer of the vehicle causing the accident (or the nominal defendant in the case of an unregistered vehicle). The CTP insurer will defend the claim and pay any compensation that an injured party is entitled to depending on the circumstances of each case.

If, however, you are an intoxicated driver who causes injury to a third party, the insurer has a right of recourse against you. Section 58 of the Motor Accident Insurance Act provides for the insurers right of recourse against an intoxicated driver who causes injury to a third party.
Section 58(3) in particular provides as follows:-

(3) If –

(a) personal injury arises out of a motor vehicle accident;
(b) the insured person was, at the time of the accident, the driver of the motor vehicle;
(c) the insured person was, at the time of the accident, unable to exercise the effective control of the motor vehicle because of the consumption of –

(i) alcohol;
(ii) a non-medicinal drug or a combination of non-medicinal drugs; or
(iii) a combination of alcohol and non-medicinal drug or non-medicinal drugs.

The insurer may recover, as a debt from the insured person any costs reasonably incurred by the insurer on a claim for personal injury that are reasonably attributed to the insured person’s inability to exercise effective control of the motor vehicle.

If an insurer can show that alcohol (or drugs) has reasonably attributed to the drivers inability to exercise effective control of a motor vehicle and this has lead to them injuring a third party, then the insurer will bring claim against the driver to recover, as a debt, any cost the insurer has reasonably incurred with respect to a compensation paid to injured third party.

The insurer would not only try to recover the amount of compensation paid to the injured third party but any reasonable cost incurred by way legal fees. This could amount to tens or hundreds of thousands (and in some cases millions) of dollars.

If the insurer obtains a court judgment against you then the insurer may apply to the court for an enforcement warrant to recover the debt. The main types of warrants are:-

• seizure and sale of real property or other assets
• redirection of debt
• regular redirections from financial institutions
• redirection of earnings
• payment by installments

Other types of warrants include:-

• delivery of goods
• seizure and detention of property
• charging orders on shares, bonds etc.

The impacts of drink and drug driving are far-reaching.

If you are an innocent third party or passenger injured in a motor vehicle accident contact our Mr. Jeremy Bruce on 13 58 28 for a free initial consultation and case appraisal. We can also provide advice and representation in relation to any drink driving charges you may find yourself facing. Call one of our experienced ipswich lawyers on 13 58 28.

Are You a Victim of a Terrorist Act?

Are You a Victim of Terrorist Act?

By | Compensation Law, General Information

On 11 September 2017 we paused to remember the terrorist attack on the World Trade Centre in America in 2001. This marks the 16th anniversary of when nearly 3,000 people were killed.

Remembering this attack also brings to mind that many people were, and may still be suffering ongoing mental health illnesses.

On 21 October 2013 the Australian Government introduced the *Social Securities Amendment (Supporting Australian Victims of Terrorism Overseas)* Act 2012 whereby victims of acts of terrorism of prescribed terrorist acts could have access to a financial assistance scheme.

Unless special circumstances applied, primary victims of those terrorist acts only had two (2) years from the declaration of the schemes operation, 21 October 2013, to make their applications. That time expired on 21 October 2015. Secondary victims only had twelve months, ie until 21 October 2014.

Although it may be too late for primary and secondary victims of Australia to seek financial assistance from this scheme in respect to the World Trade Centre incident in 2001, people can now claim assistance for a number of other acts of terrorism that have been declared. The additional acts of terrorism now include:-

– 2017 Stockholm, Manchester, Baghdad and London (3 June 2017) attacks
– March 2017 London attack
– December 2016 Berlin attack
– July 2016 Nice, France attack
– March 2016 Brussels attacks
– November 2015 Paris attack
– September 2014 Kabul, Afghanistan kidnapping
– March 2015 Tunis, Tunisia arms assault

Primary victims will only have two years from the dates of these attacks to lodge an application for financial assistance. Secondary victims will only have twelve months.

For more information about terrorist act compensation or for assistance in completing the necessary application form please contact one of our injury lawyers on 13 58 28.