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Injuries Law Today – May 2009

Credibility crucial!

Not surprisingly for this area of litigation, the credibility of a potential plaintiff is crucial. This has been particularly highlighted in some recent cases run in the common law department.

Lisa Maynard successfully represented two clients in recent claims before the County Court of Victoria where the credibility of the plaintiff was in issue.

In one case the client sustained a back injury. The severity of the back injury was the basis for the claim being made but the defendant disputed whether the injury had occurred at work at all. The injury occurred during the Christmas break and there was no documentation to record the injury happening at work. Further, the defendant paid its employees cash during this time and therefore disputed whether anyone was even working on the alleged date of injury!

Despite this, the client's version of events was preferred by the trial judge and negotiations for settlement of the claim are ongoing.

The next case involved a man who required hip replacement surgery after stepping into an uncovered hole at work. At the date of trial he was 69 years old. In cases where loss of earnings are sought it is generally rare that compensation is able to be obtained for loss of earnings past the age of 65 (and in some cases, 60).

The Plaintiff's evidence was that he was otherwise healthy and planning to work well beyond the age of 65. This was ultimately accepted by the Court and the client will now be able to claim for both his pain and suffering and lost earnings despite his advancing years!

Pilot Settlement Conferences at the County Court

The vast number of serious injury applications (a person must have a serious injury to get through the “gateway” to enable them to bring a case in negligence against their employer) are rejected at first instance by the Victorian Workcover Authority and their representatives.

The rejection necessitates the issuing of proceedings in the County Court. Ultimately a vast majority of the cases issued by plaintiffs following initial rejections are successful.

As a response to the list being overcrowded and many applications being heard long after they were issued, the County Court has established a pilot program of settlement conferences in these serious injury cases. Lisa Maynard has been involved in the committee responsible for the establishment of these conferences by representing the interest of Plaintiffs and the views of Plaintiff's solicitors.

The aims of these conferences for each case can vary but can include the possibility of resolving the proceeding or, where resolution is not possible, to refine the issues in dispute in order to assist negotiations or shorten the length of the hearing.

The hope is that more cases can be resolved without having to put the Plaintiff through the stress of a Court case.

No need for litigation

We have recently had success for a badly injured client who was able to resolve a substantial claim without the expense and stress of formal litigation.

The client almost completely lost sight in one eye as a result of being pushed over by a goods trolley. She claimed for both her out of pocket expenses and for pain and suffering.

Generally in such cases in order to obtain compensation one must establish negligence on behalf of the premises, that the negligence caused and injury and, in order to claim compensation for pain and suffering, a particular threshold of injury in accordance with the relevant legislation. This threshold often makes it difficult for such claims either to be successful or, more importantly for the injured person, financially viable. This is particularly so if the bulk of the claim relates to out of pocket expenses. In such cases the costs and risks associated with the issuing of formal litigation will not be worth it to the injured party.

Fortunately for this plaintiff a settlement was able to be achieved for an amount that the injured party could have reasonably expected to get at trial but no proceedings were issued. The client's costs were kept to a minimum and the stress of the process was significantly reduced.

Loss of chance – Significant case

Michael Schaefer and Guy Donovan were involved in a medical negligence case whereby a brother had agreed to donate a kidney to his sister who was dying of renal failure. The surgery itself was successful and his sister regained renal function.

Unfortunately complications arose for the brother who developed an infection in his spine. The medical evidence demonstrated that had attention been provided to his medical condition when he subsequently attended hospital on two occasions the infection could have been cured with antibiotics. As a consequence of this failure, the client was rendered a paraplegic. The case was settled with confidentiality prior to trial.

Extra weekly payments for injured worker

The Workcover department recently assisted a lady who injured herself in February 2005 when she slipped on fat on a floor whilst carrying a box. She returned to work on light duties and then worked normal hours up to April 2006. She then suffered an aggravation of her symptoms whilst undertaking lifting at work and ceased work entirely. A claim was lodged for a shoulder injury.

Her weekly payments were terminated on the basis that employment was no longer a significant contributing factor. The matter did not resolve at conciliation and proceedings were issued. The Defendant sought referral to the independent Medical Panel to determine the issues.

The Medical Panel found that she was no longer suffering from the claimed physical conditions (although she was suffering from a psychological condition). Work had however been a significant contributing factor to all claimed conditions but the worker did have a capacity for employment.

The matter was refixed for hearing and the intention was to argue that the worker was entitled to some payment prior to the Panel determination because it was unclear at what point her injuries were no longer related to employment. Relevant was an opinion from an expert sought by the Defendant that found that as late as early 2008, the employment was still a significant contributing factor.

The matter did not proceed to hearing but settled on the basis that the worker get a further 6 months of payment and medical expenses paid up to the date of hearing.

Insurer withdraws termination notice for worker holding 457 Visa

A VWA insurer recently attempted to terminate the weekly payments of a client holding a Subclass 457 Visa on the basis that the worker was capable of suitable employment. Without the Subclass 457 Visa the worker had no legal entitlement to work in Australia. To obtain suitable employment with another employer in Australia, the worker would have to find a sponsor employer in one of a number of specified occupations. In addition, the worker would have had to satisfy a number of requirements that an employee must meet to be eligible for a Subclass 457 Visa. The Authority did not consider whether or not the worker would meet the requirements for eligibility for a Subclass 457 Visa. In addition, the Authority did not identify as suitable any of the Government specified occupations. Penny Flint, Senior Associate argued that the Authority did not consider the nature of the worker's preinjury employment as required by the Accident Compensation Act, nor did it properly consider the definition of suitable employment in so far as it related to the worker. The Insurer subsequently withdrew its decision to terminate the workers weekly payments.

News in our group

Matthew Hansen has been admitted as a solicitor.

Jobbin John and Stella Gold have joined the group as legal graduates (formerly known as articled clerks).

Andrea Tsalamandris has recently been appointed to the Legal Liaison Committee of the Victorian Workcover Authority.

Guy Donovan has recently taken up a position at PILCH (Public Interest Law Clearing House) on a part time basis as Project Officer setting up a pro bono animal law service called PALS AT PILCH. He is involved with assisting in the development of policies and possible litigation in relation to the protection and safety of animals.

Liat Blacher, Andrea Tsalamandris and Stella Gold are volunteering as lawyers at the new PILCH Seniors Rights Clinic situated at Caulfield General Hospital on a regular basis.