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Compensation

Thinking of Suing for Defamation? Or Have been Sued? This Guide is for You!

By | Compensation, General Information

The law of defamation is used to protect someone’s reputation. Defamation occurs where someone hurts the reputation of another by spreading false information about them.

To be considered defamatory action, three elements must be satisfied:

  1. Information was communicated by a person to a third party (publication);
  2. The material identifies a person (identification);
  3. The information/material contains matter that is defamatory (defamatory matter).

The material will be defamatory if it could:

  1. Injure a persons reputation by exposing them to hatred, contempt or ridicule; or
  2. Cause people to shun or avoid them.

Provided that there are no defences available then the person who makes defamatory comments are liable to pay damages to compensate them for the damage caused to their reputation.

Due to the rise of the internet it is important to understand how defamation can occur. Defamation in an online sense would include people commenting on your Facebook posts. We have been following decisions in Zurich and Canada on defamation issues occurring on social media. We had speculated that it was only a matter of time before Australia caught up with the rest of the world. This speculation proved to be correct with the decision in Johnston v Aldridge [2018] SADC 68 where the plaintiff claimed for defamation by the defendant who had posted on Facebook but also on the comments made by other users on the original post written by the defendant.

The Defendant argued that it would have been impractical for him to police and remove any defamatory comments (not surprising considering the comments ran for 190 pages) but the presiding Judge did not accept this position and found the Defendant liable for the defamatory comments.

The next question is how to compensate for defamation. The damages as seen in the Rebel Wilson case provides some insight in to how difficult attaining damages are.  Damages can be substantial if the defamation causes an actual loss of business, or even a loss of opportunity. In the absence of proven economic loss, substantial “general” damages may still be awarded as a relief for hurt and distress. Last year, Rebel Wilson was awarded more than $3.9 million in compensation — the largest defamation damages payout ever ordered by an Australian court — after a jury found she missed out on film roles because the articles claimed she had lied about her age, real name and childhood. However, the Court of Appeal dismissed Rebel’s economic loss award in its entirety – from a massive $3.9 million to nothing.  This discount highlights the weakness of the loss of opportunity cases for claimants.  Rebel Wilson did receive damages for non-economic loss which was for humiliation and hurt feelings caused by the defendant reduced from $650,000 to $600,000.

It is significant to note the Court of Appeal’s decision to maintain the trial judge’s ruling that the statutory cap on damages awards for non-economic loss can exceed the cap where circumstances of aggravation are established.

There are time limits which apply to defamatory matters. Any action must be brought within one (1) year of publication of the matter complained.

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.

Watch Out Keyboard Warriors!!!

By | Compensation, General Information

What would you do if someone decided to spread horrible lies and rumours about you? You may do nothing because you believe that it will all just simply blow over in time. However, what if this does not happen? What if the rumours and lies grow? What if they actually damage your lifestyle and make it impossible for you to either get work or perform your current work? In this nightmarish situation, you are able to turn to the law in the hope that it will save you.

Defamation law aims to protect the reputations of people by punishing those who spread false information about them. If someone communicates information to another person which identifies you, and this information could injure your reputation by either causing people to avoid you or expose you to ridicule, hatred or contempt, then they have defamed you. If this were to occur you would be entitled to sue this person for damages and receive monetary compensation from them.

While the concept of defamation has been present in society for a while, it has gained an increased presence in the age of social media. Social media is well known as a platform for which people can share their opinions freely. While this was aimed to create many positive relationships and interactions between people, it has unfortunately also become a vehicle used by people to viciously attack others. These faceless cowards utilise the anonymity that social media can provide to say things to people that they would never be brave enough to say to their faces – bringing the dawn of the age of the keyboard warrior.

Often these keyboard warriors do not fear any repercussions for their actions due to their belief in the veil of anonymity. However, this is where they are wrong as the law is catching up to them!

We have been closely following decisions from international Courts.

In Canada, the Court found that even if not all the comments in a post were defamatory, the comments exposed the injured persons to hatred, ridicule and contempt by social media followers.

In Zurich, the Court found the support of followers simply by liking or commenting on a social media post could also make those followers liable for defamation.

Australia is catching up. On 27 June 2018 the South Australian District Court delivered a decision in Johnston v Aldridge [2018] SADC 68.

The Defendant in South Australia was found to be a secondary publisher by making a post that created the opportunity for defamatory comments to be made. The Defendant argued that it would have been impractical for him to police and remove any defamatory comments (not surprising considering the comments ran for 190 pages) but the presiding Judge did not accept this position and found the Defendant liable for the defamatory comments.

You may ask why someone who does not make the comments should be held responsible. The reasoning for this stems back to who has control over social media posts. Ultimately, this control is held by those who create them. By posting something on social media you have the power to block these keyboard warriors and delete their comments. This undoubtedly gives you great power and with that power comes great responsibility. This responsibility requires you to do the right thing and ensure that people’s reputations are not mindlessly slaughtered, with your post being the catalyst.

It is only a matter of time now before the Australian Courts agree that the commenters or ’likers’ are also liable, just as the Courts have found in Zurich.

If you are a keyboard warrior, perhaps next time consider the affects your comments might have on another person/business because you could be the next defendant in a defamation claim.

Motorcycle accidents

Motorcycle Accidents in Queensland: What To Do if You’re Injured?

By | Compensation

Many Australians are opting to make the switch from cars and trucks to motorcycles and scooters. Smaller, more fuel efficient, and easy to maneuver and park in crowded cities, motorcycles are increasingly common. Unfortunately, the increase in motorcycle use has been paralleled by an increase in motorcycle accidents and deaths.

If you or a loved one has been involved in a motorcycle accident in Queensland, you probably have a lot of questions. Below we cover some of the most commonly asked questions, but it is important for you to reach out to a professionally trained lawyer because every case is unique.

What to do after a Motorcycle Accident

  1. Get to Safety: In the first few moments after an accident, you may be injured, disoriented, and emotions are running high. The first thing you need to do is make sure you’re safe and remove yourself from the dangerous situation.
  2. Contact the Authorities:
    1. Police: If the police are not already in attendance, call the police and have them attend the scene of the accident. If you are injured, they will obtain all of the necessary information from other parties and record details of the location and conditions that were present at the time of the accident. If you later lodge a claim, your lawyer can then receive these details from the police.
    2. Medical Attention: If you are in an accident, you need to seek medical attention soon, if not immediately, after the accident. Even if you don’t think that you have been severely injured, you should seek medical advice and be medically examined. This way, even if you have injuries that are not readily apparent or injuries which arise later (such as whiplash) you will be taken care of and there will be a record of you having sought medical attention.
    3. Legal Help: If you are in an accident, it is important to seek legal advice as soon as possible. Every case is different and the best person to help you pursue a claim is a lawyer familiar with Queensland laws.

Time Limits

In Queensland there are strict time limits that apply to motorcycle claims. Usually, you will need to bring your claim within three years from the date that the accident happened. However, when the accident involves the driver of a motor vehicle, other time limits apply.

Identifiable Driver: When the driver can be identified, their insurer must be put on notice of the claim either within 9 months after the date of the accident or within 1 month from when you first see a lawyer.

Unidentifiable Driver: In the case of a hit and run, when the driver cannot be identified, the time limits to bring a claim are much more rigid. You must provide notice against the ‘nominal defendant’ within 3 months from the date of the accident or the claim will be otherwise barred.  You should seek legal advice as soon as possible.

Compensation

In Queensland, usually the insurer of the person or entity at fault pays the compensation owed to the injured party. How much the injured party will receive is based on the individual nature of the case. You may be compensated for your injuries, pain and suffering, lost wages, care, out of pocket expenses, and damage to the motorcycle among other things. The accident claims process in Queensland usually takes from 12 – 18 months but can potentially go longer if the case is complex.

Regardless of how severe your injuries or the impact of the accident on your life, it is important to seek professional legal advice as soon as possible. The claims process in Queensland can be very intricate to navigate and every accident is unique. Only an Ipswich personal injury lawyer will be able to adequately pursue your interests and protect your rights in the case of a motorcycle accident.

dealing with your TPD Claim

How is the Insurer dealing with your TPD claim?

By | Compensation

On 1 October 2016 the Life Insurance: Code of Conduct commenced operation, with a transition period until 30 June 2017. By now all Life Insurer’s are bound by and should be following the provisions of the Code of Conduct.

If you have been self-acting in a total and permanent disability (TPD) claim you may not have realised that there are many provisions within the Code of Conduct that could assist you in having your TPD assessed by the Insurer much more quickly and efficiently.

So what is the Code of Conduct? The Code provides a framework for Life Insurers (for policies such as income protection, total and permanent disability, death and trauma insurance) to standardise their conduct when dealing with and assessing claims.

The Code of Conduct covers just about all aspects of an insurance policy from product design, buying insurance, regular communications and making claims. The Code of Conduct contains principles designed to improve disclosure to policy holders, provide better transparency, decide claims within set timeframes, limit the use of surveillance and provide additional support you need to make an insurance claim.

If you are making a TPD claim then you would be most interested in Chapter 8 of the Code.

Chapter 8 – When you make a claim

There are now set timelines that the Insurer must comply with:-

  1. Within ten (10) business days of being notified about your claim, the Life Insurer will explain to you your cover and the claim process.
  1. Prior to making a decision on your claim, the Life Insurer will keep you informed about the progress of your claim at least every 20 business days.
  1. The Life Insurer will respond to your requests for information about your claim within ten (10) business days.
  1. If the Life Insurer requests a report from an Independent Service Provider, the Life Insurer will require the report to be provided within four (4) weeks.
  1. Once the Life Insurer has all the information to assess your claim they will let you know their decision on your claim within ten (10) business days.
  1. The Life Insurer will let you know their decision no later than six months after they are notified of your claim or six months after the end of any waiting period, unless unexpected circumstances apply. Where unexpected circumstances apply, their decision will be made no later than 12 months after they are notified of your claim.

When performing assessments the Life Insurer will only ask for and rely on information and assessments that are relevant to your claim and policy, for example, financial, occupational and medical information. If you disagree with the relevance of any information, the Life Insurer will review your request, and if you are not satisfied with the review you can make a complaint.

The Life Insurer can ask you for a written authority to obtain information from doctors, treatment providers and your employer. If you are concerned with access to private information you can instead authorise the Life Insurer to request particular information from particular sources, however, this may cause delays in the assessment of your claim.

If the Life Insurer needs you to attend an independent medical examination:

a) the Life Insurer will meet the cost of the appointment (excluding missed appointment fees), production of any reports and extraordinary travel costs agreed in advance;

b) you can request copies of your independent medical examination report(s);

c) if you request, you can choose from a list of doctors the Life Insurer nominates for your independent medical examination.

The Life Insurer may from time to time conduct surveillance on you. If they do then the Code puts in place certain guidelines:

a) alternative methods of verifying information will be sought prior to arranging surveillance;

b) surveillance will only be arranged where the Life Insurer reasonably believe prior to carrying out the surveillance that your claim appears to be inconsistent with information available to them;

c) the investigator will not intentionally film people in the company of you, and where this cannot be avoided, any footage of people in your company will be pixelated or blurred;

d) the Life Insurer will discontinue surveillance where there is evidence from an independent medical examiner that it is negatively impacting your recovery; and

e) surveillance investigators will not communicate with neighbours or work colleagues in ways which might directly or indirectly reveal that surveillance is being, will be or has been conducted.

If you need help with your TPD claim, the Life Insurer is not complying with the set timelines, or you can’t quite get your head around the Code of Conduct then contact one our superannuation solicitors on 13 58 28.

Support Injured

State Election – Who is Going to Support Injured Queensland Workers and Motorists?

By | Compensation

On 28 August 2017 we wrote an article about the proposed changes to the compulsory third party (CTP) motor vehicle accident scheme. See our article here https://mcna.com.au/greedy-ctp-insurers-truing-take-away-rights/

With the Queensland election due to be held on November 25th it is critical that Queensland motorists have a clear understanding as to the commitments of the major parties with respect to preserving common law rights in the event of injury.

The Australian Lawyers Alliance (ALA) recently wrote to the leadership of all major parties seeking commitments on better ensuring access to justice for injured Queenslanders.

The Australian Labour Party (ALP) has committed to maintaining the present workers’ compensation scheme design, which we believe is the best the Country, giving injured workers full access to common law rights and entitlements.

The Liberal National Party (LNP) has given a written commitment that it has “no plans to change the workers’ compensation scheme in Queensland.” But when pressed by the ALA to give the same commitment with respect to our CTP scheme, the LNP declined to give that commitment.

One Nation has been silent.

The preservation of common law rights for injured motorists in Queensland is a significant issue, and something that McNamara & Associates desires to be upheld.

It is concerning that the LNP are unable to commit to making no changes to the CTP scheme, leaving us feeling uncertain that the LNP would protect injured motorists.

If you have sustained an injury in a car accident you have the right to make a common law claim for damages (unless the LNP form government and listen to Suncorp and RACQ, rather then the voters). 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.

do I have to Disclose my Pre-existing Injury

Why do I have to Disclose my Pre-existing Injury/Condition?

By | Compensation

Many job seekers often struggle with the question….do I have to disclose pre-existing injuries or medical conditions to my prospective employer?

A prospective worker must, where requested in writing by a prospective employer, disclose all pre-existing injuries or medical conditions of which they are aware, that could reasonably be expected to be aggravated by performing the employment related duties. If the prospective worker is engaged before making the disclosure (or being requested to make the disclosure), his or her entitlement to compensation is unaffected.

In certain circumstances, workers may not be entitled to compensation or damages if they aggravate a pre-existing condition at work.  Since the law changed on 29 October 2013, a prospective employer:-

  • may request a prospective worker to disclose all pre-existing injuries or medical conditions existing during the period of the employment process that could reasonably be expected to be aggravated by performing their employment related duties
  • must request disclosure in writing and this request must be accompanied by details of the nature of the duties that are subject to the employment
  • must advise prospective workers that if they knowingly supply false or misleading information, they will not be entitled to compensation or damages under the Workers’ Compensation and Rehabilitation Act 2003 (the Act), for any event that aggravates the non-disclosed pre-existing injury or condition

Workers with pre-existing injuries/conditions are often placed in a position where they know if they disclose a prior injury or condition to a prospective employer they will find themselves on the bottom of the pile of applicants.  Many employers discriminate against potential employees (at the hiring stage) based upon previous injury and/or compensation history.  This was recognised by His Honour Baulch SC DCJ in the case of Turner v Turner & Anor [2014] QDC 106 where he states:-

“Even if he (the plaintiff) was minded to pursue a career of that sort, he would be faced with the significant difficulty in obtaining such employment by reason of the provisions of the Workers’ Compensation and Rehabilitation Act 2003. Sensible employers would be likely to make inquiries about the matters raised in those sections (of the Act) and would, in my opinion, be unlikely to employ a man with the plaintiff’s level of incapacity.”

If you are unable to obtain work after disclosing a pre-existing injury you may be eligible to apply for a total and permanent disability insurance benefit via your superannuation fund.  Contact our office on 13 58 28 for a free consultation to discuss your options.

car accident claims

Greedy CTP Insurers Trying to Take Away Your Rights

By | Compensation

Recently Suncorp and RACQ have proposed changes to Queensland’s Compulsory Third Party (CTP) insurance scheme that would see less benefits for injured motorists.

On 17 August 2017 Suncorp and RACQ released a joint statement in which they announce they have joined forces to implore the State Government to address the” rampant rorting of Queensland’s Compulsory Third Party (CTP) insurance scheme”.

These two insurers seem to believe that urgent action is required to make the system fairer and protect Queensland motorists from a spike in CTP premiums, despite the Suncorp Group reporting over a billion dollars net profit in their 2016-17 financial report (increased by $37 million in the year prior).

RACQ’s John Myler said “Despite a steady decline in the number of car accidents, we are seeing a growth in dodgy CTP insurance claims due to people exploiting the system to get cash payouts,”

What RACQ and Suncorp are really asking for is a smashing of rights and benefits for those people who have had the misfortune to be injured, often through no fault of their own.

These insurers want the State Government to introduce defined benefits for low severity claims. This means that if the insurers have their way, an injured person would receive a prescribed amount of compensation for a certain type of injury. Injured persons would lose other compensation such as loss of earnings which is usually the most significant part of their claim.

We share the views of the Australian Lawyers Alliance that the insurer’s defined benefits proposal is driven by their desire for greater profits and fails to recognise that Queensland’s CTP scheme is the best run and best structured CTP scheme in Australia.

Rod Hodgson of the Australian Lawyers Alliance said that “Premiums in Queensland are second lowest in the country and the Queensland CTP scheme provides good access to benefits for those who are injured.”

It is important to acknowledge a number of facts about CTP insurance in Queensland:-

  • In addition to being inexpensive the Queensland scheme has a very low disputation rate, which sees less than 1 per cent of matters commenced go to court;
  • Claims which lack merit are almost nonexistent – if an insurer believes that a claim lacks merit they should do their job properly and dispute the claim;
  • The Queensland courts have a strong track record of supporting only claims which have merit and dodgy claims are not tolerated;
  • Defined benefits schemes are simply insurance company code for “we know best, benefits ought to be less and the courts ought to get out”;
  • A race to the bottom by joining some of those other State’s models is not in the interests of Queensland motorists who can be very proud of our present scheme and how it’s run; and
  • Queensland has long had a strong focus on rehabilitation and this was recently enhanced with changes that see those catastrophically injured from 01 July 2016 having access to not fault coverage.

If you have sustained an injury in a car accident you have the right to make a common law claim for damages in Queensland and 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 personal injury lawyers on 13 58 28.

Facebook Versus Personal Injury Claims

Facebook Versus Personal Injury Claims

By | Compensation, General Information

When you commence an injury claim it is likely that the Respondent to your claim will appoint investigators to investigate the factual basis of your claim, or perform those investigations themselves.

These investigations might range from simply taking statements from witnesses but can be as extensive as conducting video surveillance of you.

It has become all too common for Respondents to perform full reviews of a claimant’s social media profile, whether it be Facebook, Twitter, Instagram, Linkedin, Snapchat, YouTube or any other social media platforms.

We have increasingly seen the Courts make Orders for claimants to disclose not just the public aspects of their Facebook profiles, but also the private aspect that is only viewed by friends.

If you use any of these social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim.

The types of information you may need to disclose may include things like instant messages, text messages, photographs, typed posts and/or videos and audio clips.  However, disclosure could also extend as far as computer system information and meta-data (data contained within an electronic file relating to the identification, origin or history of the file) – although we are yet to see a Court Order for disclosure to this extent.

The meta-data means that even if you deleted posts on social media they can be made available for the Courts viewing.

It is increasingly important that claimants remain mindful of any content that is posted on social media.

The scope of the disclosure that may be relevant is interpreted broadly by the courts.  For example, a document may be relevant precisely because it does not say something when it would be expected that it would. With the example of Facebook, it might be suspicious if you go from a post per hour type of person, to a post per month.

Examples of occasions where a claimant’s claim may be adversely affected by a Facebook or Instagram post are:-

  1. a post of you socialising with friends when you allege to be suffering from depression;
  2. a post of you skydiving when you allege to be suffering from a significant physical injury.

These types of posts may cause your credibility to be questioned.

Claimants have a duty to the court to ensure that they disclose all relevant documents in their possession as well as documents held by others. If you can exercise some control over those documents they are disclosable. This means that if a friend takes a photograph of you and posts that photograph on social media, that photograph may be disclosable.

WHAT IF THE DOCUMENT NO LONGER EXISTS?

You must tell your lawyer if you previously had any relevant documents that have since passed out of your control, been destroyed or have otherwise ceased to exist.  In those cases, the court may order you to file and serve an affidavit stating:-

(a)       that a document does not exist or has never existed; or

(b)       the circumstances in which a document ceased to exist or passed out of your possession or control.

It is a serious offence for a party to intentionally destroy, withhold, conceal, alter or falsify a document that is required to be disclosed.  An individual who commits such an offence risks criminal prosecution.

In consideration of the importance of social media if you have started an injury claim you should give access to your lawyer by adding them as a friend to fully investigate what documents may need to be disclosed in the injury claim.

As for the future, we strongly advise that you bear in mind that the Respondent to your claim may investigate your social media profiles before posting comments, pictures or videos. If your profile is closed to the public, the Respondent may obtain an Order from the Court for you to disclose the entire content of your social media profile.

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

Big Lessons for Employers Aware of Bullying in their Workplace

Big Lessons for Employers Aware of Bullying in their Workplace

By | Compensation

When we think of injuries in the workplace that may be compensatable under personal injury law, we typically associate physical injuries. It’s a big mistake because increasingly Queensland Courts are considering matters of which pertain to psychiatric injury.

What is a psychiatric injury?

The Workers’ Compensation and Rehabilitation Act 2003 states that ‘an injury is a personal injury arising out of, or in the course of, employment if for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury’.

The Act further states that ‘an injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances’:

– reasonable management action taken in a reasonable way by the employer in connection with a worker’s employment
– a worker’s expectation or perception of reasonable management action being taken against a worker
– action by the authority or an insurer in connection with a worker’s application for compensation.

The recent case of Robinson v State of Queensland [2017] QSC 165 is a sharp reminder to employers to be vigilant in taking reasonable care of his/her employees to avoid psychiatric injury particularly in the context of workplace harassment, bullying, and managerial mistreatment.

Briefly, in this case, the plaintiff, Mrs. Robinson, was a registered nurse and the District Director of Nursing at the Cape York Health Service in Weipa in Queensland. She had no historic psychological or psychiatric issues.

Mrs. Robinson alleged that she suffered a psychiatric injury as a consequence of repeated managerial mistreatment by a member of the employment team.

Allegedly, there was a number of staff involved in this mistreatment, but the Court found that it was the result, largely by omission, of Ms. Turner (District Chief Executive Officer) that these acts occurred.

Henry J stated (at para 195):

“The risk of psychiatric injury to Mrs. Robinson was reasonably foreseeable by reason of the signs progressively exhibited by Mrs. Robinson of a high and increasing degree of emotional concern and distress about Ms. Holmes’ targeting of complaints against her in the WIFs. The risk of such injury was not insignificant, particularly bearing in mind those signs fell for consideration in the light of Mrs. Robinson’s previously expressed concerns…Realistically, the taking of such elementary action would likely be the standard response of any competent manager, even if unconcerned by a risk of psychiatric injury.

Further, the Court found that the Cape York Health Service failed in their duty to take reasonable care of Mrs. Robinson in exposing her to psychiatric injury by not preventing Ms. Turner’s course of managerial mismanagement.

Henry J stated (at para 304 and 305):

“As to whether Ms. Turner’s course of managerial mistreatment of Mrs. Robinson breached the defendant’s duty to take precautions against a risk of psychiatric injury to Mrs Robinson, the risk was reasonably foreseeable by reason of the very nature of the type of behavior involved. In an era when the potentially grave psychological harm done by workplace harassment and bullying is well known, unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of an employee by a CEO was conduct collectively raising a foreseeable and not insignificant risk of psychiatric injury.

The probability of potentially serious psychiatric injury from such behavior is sufficiently well known that a reasonable employer would take precautions against such conduct occurring….”

The take home message for employers who are aware of any behaviour that may be construed as bullying or harassment in their workplace is to take overt steps to deal with it.

Conversely, if you’re an employee being subject to this kind of behaviour in your place of work and it is impacting upon you, seeking legal advice early is highly recommended. Bear in mind also, that strict time limits apply in these matters.