In an excellent judgment for plaintiffs, an Advice Line Injury Lawyers client has won his case at the Court of Appeal, entitling him to sue for his pain and suffering damages. Mr McKinnon was injured at work after stepping into a hole cut into an elevated platform, fracturing his ankle. After surgery, Mr McKinnon returned to work, but was not able to work as a rigger anymore due to his injuries. He continued to suffer ankle pain and loss of mobility. The Victorian WorkCover Authority refused to grant Mr McKinnon a “Serious Injury Certificate” with respect to his pain and suffering. Mr McKinnon nevertheless proceeded with his case with the help of Advice Line Injury Lawyers, winning at the County Court, and again at the Supreme Court of Appeal. In the Court of Appeal’s judgment, Mr McKinnon was described as a “tough person” who was able to return to work despite his constant pain.  The three judges were unanimous in dismissing the appeal of the Victorian WorkCover Authority and granting Mr McKinnon the right to sue for his pain and suffering.

You can read the decision here

In Tabet v Gett the High Court determined that damages are not available for the loss of a chance of a better medical outcome.  In 1991 Reema Tabet was admitted to hospital when she was experiencing headaches and vomiting.  After a period of delay before undergoing a CT scan, she was diagnosed as suffering from a brain tumour.  Following surgery she was left with permanent brain damage.

The argument in the case brought on behalf of Reema Tabet for compensation was that as a result of the negligent medical treatment causing a delay in the diagnosis and treatment of her condition, she had lost a chance of obtaining a better medical outcome.  However, the High Court held that she was required to prove on the balance of probabilities that the negligent medical treatment had caused her injuries. 

This is an unfortunate decision, particularly for people who negligently receive a delayed diagnosis of a serious medical condition.  In such cases it is often difficult to establish on the balance of probabilities that the delay caused the physical injury or earlier treatment would have prevented the injury from occurring and, therefore, an injured Plaintiff in these circumstances will now not be compensated for the value of the chance of avoiding the injury suffered.

We recently successfully defended an appeal on behalf of one of our clients against a County Court Decision that her Serious Injury Certificate, entitling her to commence a common law claim, was deemed. When a response is not received to a Serious Injury Application within 120 days then serious injury is deemed. In this case issues arose as to whether the application was ever validly served and received by the Defendant as the employer is a subsidiary company of Qantas, who is a self insurer. The County Court Judge found that it was and the Court of Appeal agreed, finding that he was entitled to come to that decision on the evidence and the appeal was therefore denied. Our client is now able to proceed with her claim for common law damages.

Click here for a link to the judgment

PRESS RELEASE:

 “GOOD NEWS STORY FOR INJURED WORKERS”

Amendments to the Accident Compensation Act were introduced into the Victorian parliament yesterday and are scheduled to be passed when the parliament resumes in February.

“The amendments are the most substantial changes to the WorkCover jurisdiction in over 10 years,” says Andrea Tsalamandris, an accredited specialist in personal injury law and a partner at Holding Redlich.

“These reforms have been a long time coming. They offer significant increases to injured workers.”

“It is hard being on WorkCover. These amendments increase benefits. They will help make it easier to keep paying the mortgage when an injury stops you working.”

“In past years, injured workers rights have tended to be eroded, but this Act will bring about greater benefits to victims of work accidents.”

“Despite the Government’s ongoing focus on work place safety, there are still almost 30,000 work injury claims per year. For those people forced onto WorkCover, usually through no fault of their own, it is a tough time. “

“Now the claims must be processed faster and once accepted the worker will receive a higher percentage of pre-injury wages, including for the first time, superannuation benefits.”

“The weekly payment rate of 80% will bring injured workers in line with what transport accident victims receive. But there will be an additional entitlement in that superannuation benefits will now be paid for injured workers. These had not been paid to injured workers in the past. This meant injured workers were financially disadvantaged though no fault of their own. Although the new amendments only require superannuation payments to be paid for the first 52 weeks, it is a start in recognising the importance of superannuation being paid to injured workers.”

“The amendments will also bring increased compensation to workers who suffer a permanent psychiatric injury. In the past these workers had been paid much less compensation than workers with an equivalent level of physical injury.  This is a real benefit to workers suffering stress injuries and makes up for years of discrimination against such workers.”

For additional comments, please contact Andrea Tsalamandris on 0419 899 275

Liat Blacher won a case for a teacher who sustained psychological injury in the course of his employment. The case ran for two days and was hard fought. The client now has the right to claim for damages for his pain and suffering and lost earnings.  

The use of Mobile phones whilst driving is prohibited from 1 November 2009 in Victoria. The  only exceptions are when a driver is making  a call on a hands free unit and the phone is secured in a holder fixed to the vehicle and can be operated by the driver without touching any part of the phone. The partner in charge of the Transport Accident Division of Holding Redlich, Michael Lombard welcomed the changes and said"they probably could go further." There is plenty of data showing that talking on the phone is a distraction which can become a deadly distraction," Michael Lombard said. The Automobile Association of New Zealand has called for all phones to be banned from cars in all circumstances. "The banning of all phones needs to be looked at," the personal injury specialist said, "the sooner the better." Others are suggesting that mobiles be confiscated for periods as a penalty with a "three strikes and the phone is out" on it as well. "This will really make people think", Michael Lombard said.   

The TAC is increasing  its commitment to advertising in computer games. "I hope they are not spending too much on them," says Transport Accident Division Partner at Holding Redlich Lawyers in Melbourne, Michael Lombard. "It may be a good idea in theory,"he said, "but in reality, when young people are steering their virtual cars at 200kph through the streets of San Francisco or on the racetrack, are they going to be paying any attention to the billboards that are flashing by?" The TAC have indicated they wish to get in front of "More Eyeballs" and in particular males aged 18-39. The TAC have also been advertising heavily at the Grand Prix. "Who knows whether this has been effective?", Michael Lombard said." Now we are in a similar enviroment with video games; will we ever know how effective this financial investment is?" "A better idea may be to go back to the schools and get the message in front of students who are hopefully not concentrating on driving virtual hotted up vehicles as fast as they can," the car accident lawyer said. "But that may not be as glamourous or newsworthy. It may, however, be safer in the long run"

The Transport Accident Division partner at Holding Redlich, Michael Lombard, believes the recently announced blitz on specific accident hotspots is exactly what should be happening to help stop injuries on the road. "When the road toll plummeted more than a decade ago, the general view was that hard hitting advertisements had made the difference", Michael Lombard said "but it was more than that. There ws a co-ordinated approach to reduce the road toll by Vicroads, TAC and the Police. They all worked together,"he said. "Vicroads would look at road accident hotspots  and see if any road changes needed to be made, whilst the TAC would advertise in the specific area and the Police would crack down in the area. It was a brilliant arrangement that worked extremely well," Michael said. "It is hoped that this blitz works equally as well."

The State Ombudsman  has highlighted sinificant flaws in the workcover billing scheme. Unfortunately, there has for a  long time been rumours that some Surgeons were coming out of operating all night on motor accident victims and boasting that they had paid for their children's yearly private school fees! The TAC seemed to be obsessed with stopping the injured  from receiving one more treatment than they were entitled to, but letting some health professionals go unchecked. Michael Lombard from  the Transport Accident section of Holding Redlich hopes that the Ombudsman will put "A Rocket" around those who have not been monitored.  

The TAC has declared war on paper by looking to scan all the documents coming into its office. A tender issued by the TAC wants cost effective end-to-end solutions for incoming documents. TAC reveals that it has to manage 3200 documents each day. On average 10,000 pages are sorted each day. The TAC have been "famous" for losing clients papers that are sent in. Sometimes they have been faxed in, but still operators have told our clients that they didn't get them. Michael Lombard from Holding Redlich says "It's not clear whether this tender will help , but any improvement will be a blessing."

Today Stella Gold of Holding Redlich attended the County Court on behalf of a widow to hear the company her late husband worked for be fined $300,000 for his death. The fatality occurred at the B & D Doors Kilsyth factory in November 2006, when a 7 metre industrial drum fell from an overhead crane, killing the 51 year old man. B & D Doors was prosecuted and pleaded guilty to a number of offences relating to its failure to provide a safe place of work and adequately train its staff.  We had assisted the widow prepare a Victim Impact Statement, which was read out in court and relied upon by the Judge in sentencing the company. We are also assisting the deceased's family to recover compensation entitlements and damages arising from this avoidable workplace death.

Click here for a Herald Sun news item on the case.

Judge Bowman of the County Court has awarded one of our clients $867,000 damages for injuries she sustained at work as a medical receptionist.  Our client suffered a hip injury whilst squatting down to file medical records in overloaded drawers.  The claim was vigorously defended by WorkCover's lawyers. The damages included $334,000 pain and suffering damages, $170,000 for past loss of earnings and $363,000 for future loss of earnings. Our client is very satisfied with the outcome we achieved in her case.

Lisa Maynard recently presented at a seminar run by the Australian Lawyers Alliance, an association of primarily Plaintiff lawyers. The subject of the seminar was the 40% loss of earning capacity test in Serious Injury Cases. In workcover applications for a serious injury certificate, a worker must establish a permanent drop in their capacity to earn income of at least 40%. This is a very difficult test to meet and presenting and attending the seminar gave our lawyers invaluable further knowledge in this area.

Lisa's paper - 40% loss of earning capacity test - some cases

We were recently able to resolve a damages claim for a worker suffering a severe psychiatric condition from his fear of developing an asbestos related disease after he was unreasonably exposed to asbestos dust at work. Over a number of weeks he and his co-workers raised concerns about a white powdery substance present at the worksite. They queried whether the powder could be asbestos and they were assured it was not and their concerns were not taken seriously. Eventually experts were called in who confirmed the powder was the lethal blue asbestos and shut down the site. Although he never developed an asbestos related disease, such as mesothelioma, he genuinely feared that he would and suffered a severe psychiatric reaction to these events. He was unable to continue working and requires on-going counselling and medication. He recovered compensation for his injuries. The terms of the settlement were confidential.

Andrea Tsalamandris is in the Australian newspaper today talking about the rare occassions when she has had to take her children to court with her. Although not something she does often, and something she prefers to avoid, there have been emergencies when she has had to bring a young child to court. Unlike the Senate which recently asked Sarah Hanson-Young's young child to be removed from the chamber, the courts have been accomodating, even the High Court. 

http://www.theaustralian.news.com.au/business/story/0,,25668981-17044,00.html 

On 10 June we settled a damages claim for a client who had suffered a neck injury as a consequence of her employment in a gaming room. As part of her employment she was required to operate a coin dispensing machine. It was placed on the right hand side of her work station and she was required to repeatedly stretch out her left arm to collect coins, whilst operating the machine with her right hand. Overtime this resulted in an injury to her neck. She complained about the positioning of the coin machine but her employer refused to move it to the position where she said it placed less strain on her body.

Our client required a fusion to her neck as a consequence of this. She was granted a serious injury certificate for her pain and suffering. It was not until the day the case was listed for hearing that the Defendant was prepared to make any decent offers of settlement.  She received approximately $160,000 for her pain and suffering damages.

We were recently successful in defending an application to strike out one of our client's claims. A dispute arose as to whether a County Court Writ that we had issued was valid, based on an earlier dispute about whether the Plaintiff's Serious Injury Application was validly served.

A response has to be received to a Serious Injury Application within 120 days or it is deemed to be a 'yes', but in this case the Defendant disputed when that was to be calculated from.

The Judge decided that the Application was validly served and agreed that the Plaintiff's Serious Injury was deemed and therefore refused to strike out the proceedings. Our client's claim for damages is continuing.

See the ruling at: http://www.countycourt.vic.gov.au/CA256D90000479B3/Lookup/Judgments_M1/$file/09_VCC0546.pdf

On 1 May we got a judgment in a serious injury case for a worker who injured her back lifting heavy boxes. She was given permission to commence a case for pain and suffering and loss of earnings.

This is a link to the judgment http://www.countycourt.vic.gov.au/CA256D90000479B3/Lookup/Judgments_P1/$file/09_VCC0415.pdf