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Injuries Law Today | Feb 2007 PDF

The last few months have been very productive in the personal injuries department with significant settlements and court victories.

COURT SUCCESS

Andrea Tsalamandris and Liat Blacher won a case in the County Court for a worker who had sustained injuries to both his wrist and back in the course of his employment. Application was made for leave to obtain damages for both pain and suffering and loss of earnings. In order to obtain leave, the Court had to be convinced that the seriousness of either or both injuries reached the requisite level.

The main difficulty with the case was that in order to claim loss of earnings, the worker had to demonstrate not only that he was incapable of returning to his pre-injury duties, but that he could only both now and into the foreseeable future perform light duties for a maximum of 20 hours per week. There was significant debate between the relevant doctors on both sides although all agreed that he was able to perform some work. Further, the relevant law states that he needed to demonstrate an ongoing loss of more than 40% in his earnings.

Ultimately the evidence of the plaintiff and his treating general practitioner was accepted by the trial judge and the Plaintiff succeeded under both limbs of serious injury for both injuries.

Penny Flint was also successful in Court winning a case for a worker who injured his back in 1997 as a fitter and turner. The case was difficult because, the worker had sustained earlier back injuries and it was alleged that within a 3 week period of employment with the defendant, his back injury was aggravated to the extent that it reached the threshold required. The Court accepted this as a serious injury and the worker can now seek to recover common law damages for his injury.

MILLION DOLLAR MONTH

Michael Schaefer and Tulin Terzioglu acted for a young Turkish girl who sustained profound brain damage during birth. At first her parents were lead to believe that the brain damage arose out of a genetic incompatibility with the parents. It later arose that this was not the case and that the brain damage was sustained due to a delay in the child’s birth.

A great settlement in excess of $3 million was obtained for the child. Interestingly in these cases, the more severely injured the plaintiff, the lower their life expectancy. As much of the damages obtained in such claims relates to ongoing care costs - the lower the life expectancy, the lower these costs and the damages that can be obtained are subsequently less. Reduced life expectancy was argued strongly in this case and the settlement obtained is a great result given the severity of the claimant’s brain injury.

Andrea Tsalamandris and Liat Blacher also settled a case for a boy with learning difficulties as a consequence of his birth. The claim settled for well in excess of 1 million dollars. Andrea had acted for this client for more than 7 years and so the resolution of this case was extremely rewarding for all involved.

SIGNIFICANT SETTLEMENTS

Michael Lombard and Guy Donovan settled a tragic case, the circumstances of which received significant coverage when it originally occurred.

In September 2002, 3 children were horrifically burned and their brother died when their father lit a cigarette in the car after filling up a tank with LPG gas. The gas leaked into the passenger compartment causing an explosion.

Holding Redlich act for the 3 surviving children and the mother. The claims of one of the children was settled for $300,000 and for the mother in the amount of $185,000. The other 2 claims remain on foot.

The claim for the child was based upon the severity of her injuries and the pain and suffering that she has and will continue to endure.

The mother’s claim was termed as a “nervous shock” claim based upon psychiatric injury arising out of the accident. The law states that such an injury must amount to more than mere grief relating to death or injury of a loved one. Although she was not present at the time of the accident, what the mother subsequently witnessed in relation to her children caused a psychiatric reaction sufficiently serious to claim damages arising out of the accident.

Lisa Maynard had a fantastic settlement for a man with multiple injuries, most significantly, serious head injuries. In a complex negotiation with the client living overseas and an urgent appointment of an administrator to provide instructions on his behalf, Lisa managed to extract $800,000 for the worker – her biggest settlement to date!

Michael Schaefer and Tulin Terzioglu were asked to act on behalf of a mother of a child with cerebral palsy. The mother was the litigation guardian but the solicitors for the defendant hospital had issued third party proceedings against the mother on the basis that her refusal to have a caesarean section was a cause of the child’s brain damage.

Interestingly, the argument advanced on behalf of the infant was that at no stage was the mother advised that she should undergo an emergency caesarean section as there was a danger to the child. Eventually she did elect to undergo the caesarean but the baby was born by forcep delivery.

Holding Redlich issued a summons on the basis that a Third Party Notice does not disclose a cause of action and is an abuse of process of the court. Counsel’s advice and our legal opinion was that a parent does not owe any legal duty of care to a child or a third party – the parent’s duty is only a moral one.

This would have been an fascinating case to run but ultimately, the solicitors for the defendant discontinued the third party proceedings and the mother is now able to continue to act as Litigation Guardian for the child.