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Common Law Damages Update: Young worker with head injuries awarded $825,000

Maxiom’s Sach Fernando recently obtained a settlement of $825,000 plus costs plus retention of benefits for a 38 year old man with serious head injuries. Taking into account the benefits our client had already received by way of weekly payments, the settlement represents a total damages award of over $1million.


Background:

Our client was a 38 year old Concreter/Labourer. He was working in a bunker at a construction site, directly beneath a suspended hydraulic jack. He was responsible for attaching the jack to cables inside the bunker. His supervisor was working above him at ground level, operating the jack using a control panel. The two workers were attending to the ‘stressing’ of cables inside concrete pylons, prior to the pouring of concrete.

As our client was working, he pushed the jack away from him with his hand, and as he turned back around, he was struck in the head by the jack (“the workplace incident”).

Injuries:
As a result of the workplace incident our client sustained significant personal injuries,
including:

  1. An acquired Traumatic Brain Injury;
  2. Post-Concussion Syndrome;
  3. Post-Traumatic Migraine headaches;
  4. Injuries to the Eyes, such as poor vision, visual disturbance, diplopia, double vision, convergence spasm; and
  5. A range of psychiatric illnesses and disorders, including Severe Depression, and Adjustment Disorder with depression and anxious mood.

Pain and Suffering Consequences:
Our client suffered the following consequences as a result of his injuries:

  1. Chronic migraines;
  2. Phonophobia (the sensitivity to loud noises) where he would suffer from headaches in noisy environments. As a result of this, he would often react angrily when his children laughed, cried or shouted;
  3. Photophobia (sensitivity to light) where direct sunlight or glare would give him headaches, necessitating special tinted glasses;
  4. Convergence spasm which caused one eye to drift in a separate direction from the other;
  5. A requirement for regular Botox treatment from a neurologist;
  6. An impact on his marriage and family life. His wife has become his permanent carer and he is unable to contribute to any household chores;
  7. Weight gain of between 30-40kg since injury due to injuries and immobility;
  8. Walking, he requires a walking stick to get around due to loss of balance;
  9. Poor concentration / memory –Reading, concentrating, memory and focus was poor;
  10. Difficulty and inability to perform a range of recreational pursuits including camping, hunting, fishing, camping and bike riding;
  11. Sleep – It would take a considerably long time to fall sleep due to persistent migraines;
  12. Nightmares and flashbacks to the incident; and
  13. Depression and anxiety with feelings of helplessness, uselessness and suicidal thoughts.

Work Capacity:
The medical evidence was unanimous in finding that our client’s capacity for work was negligible.

Negligence:
We argued that the employer was negligent in failing to mandate the wearing of helmets or hardhats, particularly when workers were working beneath a moving hydraulic jack. The employer was aware that employees were not wearing hardhats in a bunker, particularly during warm weather.

Following our client’s incident, the employer did mandate the use of hardhats whilst working in the bunker and shortened the hydraulic jack.

We further argued that the employer:

  1. Failed to devise, implement and maintain safe systems of work with respect to the hydraulic jack and with working in the bunker below the hydraulic jack;
  2. Failed to provide adequate supervision of our client in the performance of his work duties;
  3. Failed to provide training to our client, particularly with respect to safely operating or safely working with and/or below the hydraulic jack;
  4. Failed to ensure that the hydraulic jack had appropriate safety features, guards and/or warnings systems to prevent any contact with our client whilst he was working below and/or in close proximity to it; and
  5. Did not require any personal protective equipment to be worn by our client to work at the premises and with/below the hydraulic jack, including safety helmets and/or hard hats.

If you have been injured at work, we can help. Please call Sach Fernando on 1800 85 30 85 or 0488 722 444 for an obligation free discussion about your case.

$800,000 awarded to injured motorcyclist

A 47 year old former professional marathon runner has been awarded $800,000 following a motorbike collision that resulted in serious injuries, including an above knee amputation of his right leg. The victim was riding his motorbike when an ice affected driver collided with him, throwing him off his bike into a ditch.

The victim was airlifted to Alfred Hospital where emergency physicians, surgeons, nurses, anaesthetists and radiologists worked together in unison to successfully resuscitate him.

Injury Law Specialist, Sach Fernando, from Maxiom Injury Lawyers said that it was an honour to have represented the injured motorbike rider.

“He really is an inspiration. His survival is testament to the great work of Alfred’s trauma unit. His commitment to recovering from this horrific accident is truly inspirational and he is more than deserving of the award of damages he recently received”.

Mr Fernando also said that more needs to be done on Victorian roads to make them safer for all road users, including the installation of more safety barriers, particularly in high-risk areas. 

The other driver involved in the collision was sentenced to 6 years in prison with a non-parole period of 3 years.

If you are injured call Maxiom Injury Lawyers on 1800 85 30 85.

Technology and the Law: Finding Metadata

I still get nightmares about the old dial up tone and I won’t long forget the shrill voices of my parents screaming at my siblings and I to get off the web so they could use the landline, however, I’ve been pretty lucky to witness the expansive growth of technology throughout my formative years.


I am categorised in the generation that knows everything about technology but what I have come to realise is that I might know a lot about how to operate technology, but I have little to no idea how it actually operates.
Take metadata, for example. Prior to starting my career at Maxiom Injury Lawyers in 2020, I didn’t have a clue what it meant. Now that I do, I can tell you I’ve never metadata I didn’t like.

What is Metadata?

Urban dictionary will tell you it is a fancy word for “information” invented by tech folks to make their jobs sound harder than they really are.

It is really just a set of data that describes and gives information about other data. Much like the iceberg that sank the titanic, what you see on the surface rarely indicates what is underneath.

Metadata and Personal Injury Litigation

As a personal injury lawyer, I review thousands of documents during the process of discovery. From time to time, some documents make me pause and question its authenticity.

Metadata only came onto my radar when I had a gut feeling something was NQR in one of our Workcover matters. Our client’s PIAWE (pre-injury average weekly earnings) calculation was incorrect as it didn’t include overtime. The Workcover Insurer advised that our client’s employer had provided employees with a notice five years ago which outlined that all overtime was cancelled and thus the calculation of overtime ought not be included.

As is the usual case, we had very different instructions. Our client was adamant he had never received such a notice, so we formally requested a copy from his employer. Once we received the notice, our client’s instructions didn’t change.  Despite having confirmation that the notice existed in front of me, I took my client’s word and decided to investigate.

Through my research, I found that there was a way to view the document history by simply checking the metadata. As you might’ve guessed, when I checked out the metadata of the document, I quickly realised that the document was created and amended that day, and not some five years ago.  

When we informed the insurer of our investigations, the argument disappeared faster than Harold Holt on a hot summer’s day down the coast, and our client’s PIAWE was calculated to correctly include the overtime allowances he was entitled to.

Technology has a major role to play in the way do business in law. You can’t always take someone’s word in real life and the same principles apply in the realm of technology. There is always more beneath the surface.

If everything were that simple, I might’ve accepted the email offers of various Princes to inherit their fortunes simply by providing my name, date of birth, bank details and TFN.

If you’ve made it this far, read on for a quick step-by-step guide on how to check the metadata of PDF documents:

STEP ONE:

Open the PDF File.

STEP TWO:

Select ‘File’ -> Properties.

STEP THREE:

Select ‘Additional Metadata’

STEP FOUR: Select ‘Description’. Here you will be able to see when the Document was first created and when/if it has been modified.

STEP FIVE:

Select ‘Advanced’ to see additional modification details.

Michaela Kennedy is a personal injury lawyer at Maxiom Injury Lawyers. Please contact us on 1800 85 30 85 or 0488 722 444 if we can assist with your personal injury claim.

MK Headshot - White

Finding my place in Law

I completed my schooling years at an Islamic school in Springvale and subsequently attained a double degree, Bachelor of Laws and Bachelor of Arts (Majoring in International Relations) at Deakin University. As part of my Law degree, I completed a unit in Personal Injuries and this enlivened my interest in the jurisdiction.

I have aspired to be a lawyer ever since the age of ten when I witnessed the most marginalised members in my community suffer due to a lack of awareness of their legal rights. I felt that becoming a lawyer would give me the necessary qualifications to help these people. As a lawyer, I have not only found a career that allows me to be an advocate for the disadvantaged, but I have also found a career where I am constantly learning and developing my skills.

For me, the real journey has been finding “my place” in law.

During my penultimate year at university, I was fortunate to secure an administration role at a large Plaintiff law firm. I was soon promoted to a paralegal position and in 2018 accepted into that firm’s graduate lawyer traineeship program. I was able to participate in learning and development activities and observe senior lawyers and barristers negotiate.  This experience provided me with a strong foundation to begin my journey as a Lawyer.

Whilst legal education and internships help develop the necessary technical skills, it was important for me to find a supportive mentor, one that would afford me opportunities, value my opinion and share their wealth of experience.

In July 2020 I saw an advertisement for an opportunity to work as a Lawyer at Maxiom Injury Lawyers. Maxiom was a NewLaw firm that I had observed to be agile and flexible, and disrupting the traditional model of a personal injury law firm. My research found that they were receiving great reviews from  clients, and this feedback demonstrated a very empathetic approach to the practice of law . The firm was founded by Sach Fernando, an Accredited Injury Law Specialist, whose career journey I had observed from afar. The opportunity arose during Melbourne’s lockdowns where most were concerned for their job security. Nonetheless, it was an opportunity I identified as one that would afford me valuable mentoring and allow me to grow my legal skills within a jurisdiction I am passionate about. Ultimately, the determining factor for me was the Principal Lawyer for whom I would be working with.

Having completed nearly twelve months at Maxiom, I can confidently say that I made the right decision. I have had significant mentoring, opportunities to present at conferences, negotiate directly with senior Defendant lawyers and to contribute to a positive culture at a firm whose values align with mine.

In addition to a fantastic mentor whose values align with mine, I have found my place where I am able to make a significant impact to the lives of my clients. In a boutique law firm, your efforts and contribution are valued. Everything you do makes a direct impact – to the firm itself and to the team you work with. When a case is resolved, your efforts are recognised and celebrated. I feel a great sense of pride knowing that my legal skills contributed to the outcome of my client’s case. Being able to see reward for my effort provides a sense of meaning and purpose. Similarly, I am an integral member of the team and have the opportunity to contribute to the growth of the firm including its culture.

Finding the right firm may take some trial and error, however I have discovered that it is the people at that firm and most importantly your mentor, that holds the key to your ultimate career success.

Zahida Popal

Solicitor at Maxiom Injury Lawyers

Zahida Popal

Common Law Damages Update: Plaintiff awarded $350,000 for spinal injuries

Maxiom’s Shane Don and Sach Fernando recently obtained an award of $350,000 on a Pain and Suffering basis for a man who sustained a serious lower back injury. The facts of this case are outlined below.

The Incident:

The Plaintiff was a 66-year-old man who was employed by the Defendant as a Sales Representative and Battery Delivery Person. Throughout the course of his employment, he was required to load his delivery van with batteries weighing up to 45 kilograms. He had to get inside the van and walk over the batteries sometimes to get them in the correct position.

In May 2010, whilst loading batteries inside the back of the van, the Plaintiff slipped and fell off a battery and landed on his right side.

As a result of the incident, the Plaintiff sustained intervertebral disc disruption at L4/5 and L5/S1, right leg sciatica, transient cauda-equina syndrome and soft tissue injuries to his right shoulder, right hip and right ankle.

Treatment:

The Plaintiff underwent extensive treatment, listed as follows:

  1. In September 2010, he had a right hip injection.
  2. In December 2010, he had an epidural steroid injection into his back.
  3. In August 2011, he underwent decompression of his lumbar spine at L4/5 and L5/S1.
  4. In August 2011, he underwent a further laminectomy surgery of his lower back.
  5. In December 2011, he underwent a posterior lumbar interbody fusion at L4/5 and L5/S1.
  6. In March 2016, he underwent removal of lumbar instrumentation and further decompression of spine, particularly on the right at L5/S1.
  7. In April 2018, he underwent an open removal of foreign body/hypodermic needle operation.
  8. In 2019, he completed a Pain Management Program.

Despite the treatment, the Plaintiff’s doctors opined that he had developed chronic lower back pain and that his prognosis is poor.

The Proceedings:

The Plaintiff had reached the age of retirement, which meant that he no longer had an entitlement to weekly payments.

The Plaintiff was granted leave to bring common law proceedings for the recovery of pain and suffering damages.

Pain and Suffering Consequences:

The Plaintiff’s consequences included, but were not limited to:

  1. Restriction in walking with the aid of crutches.
  2. It is almost impossible for him to do any exercise now and since his injury he had gained over 40 kilograms.
  3. His injuries have necessitated home modifications including ergonomic chairs, installation of a walk-in shower and handrails.
  4. Due to the cauda equina syndrome and disruptions in his lower extremities, he is required to wear adult nappies.
  5. He was no longer able to ride motorbikes as he did prior to the accident.

Negligence:

The case against the Defendant was primarily that he was required to carry out hazardous manual handling duties in circumstances where there as a reasonably foreseeable risk of injury. In addition, we submitted that:

  1. The Defendant failed to provide and maintain a safe system of work;
  2. The Defendant failed to provide the Plaintiff with proper instructions, supervision and training;
  3. The Defendant failed to take any reasonable steps to reduce the risk of injury, so far as was reasonably practicable; and
  4. Prior to the incident, the Plaintiff had identified a reasonably practicable alternative to the Defendant’s system of work, by placing a chipboard over the batteries to provide a stable surface on which to walk. The Defendant had instructed the Plaintiff to remove the chip board.

If you have been injured at work, we can help. Please call us on 1800 85 30 85 or 0488 722 444 for an obligation free discussion of your case.

Sach Fernando Upper Portrait
Shane Don Laywers

Personal injury claims and the NDIA

women in wheelchair

By: Shane Don

Who is the NDIA?

The National Disability Insurance Agency (NDIA) is a Commonwealth statutory agency that administers the National Disability Insurance Scheme (NDIS) to Australians with permanent disability.

Am I eligible for NDIS support?

In order to become a participant of the NDIS, you must:

  1. Be under 65 when you make the request for access; and
  2. Reside in Australia and be an Australian citizen, permanent resident or holder of a special visa category; and
  3. Establish that you have either a ‘permanent disability requirement’ or an ‘early intervention requirement’.

Disability requirements include a disability attributable to one or more of an intellectual, cognitive, neurological, sensory, physical or psychiatric condition.

In order to be granted access to the provision of early intervention, the NDIA must be satisfied that it will likely reduce your future needs for supports and that the early intervention will mitigate, alleviate or prevent the deterioration of your functional capacity.

Should I apply for NDIS support if I am already receiving funding from another statutory scheme?

The objective of the NDIS has been to address the imbalance between those with compensable and non-compensable disabilities. It was designed to complement and not replace existing statutory schemes, by facilitating a nationally consistent approach to the funding of reasonable and necessary supports.

It is important to note that most statutory schemes fund on a ‘as needs’ basis. This means that you will only receive funding if it is requested and approved. Further, the legislated funding intent of Victorian statutory schemes do not consider an individual’s goals or aspirations. The NDIS, in contrast, allows participants to choose which supports and services require ongoing funding, from an individually allocated budget based on their goals and social participant objectives.

Accordingly, if you find that you are not receiving adequate or appropriate funding from your existing statutory scheme for your medical and like expenses, it is worth considering access to the NDIS.

When applying for access to the NDIS, you must inform the NDIA of any current compensation claim on foot.

Do I have to pay the NDIA back if my compensation claim settles?

Pursuant to sections 106 or 107 of the National Disability Insurance Scheme Act 2013 (Cth), the NDIA can recover the sum of past NDIS amounts from your common law damages that includes past medical and like expenses or past domestic care and assistance. Prior to settlement, the NDIA will invariably issue a ‘Preliminary Notice’ to the potential compensation payer or insurer to put them on notice of their potential liability.

This situation arises in circumstances where your common law claim finalises and you have been in receipt of NDIS supports for your personal injury related impairment/s. The NDIA calculates the recoverable amount from the date of access to the NDIS to the day before the settlement/judgement.

In Victoria, common law damages that include components for past medical and like expenses or past domestic care and assistance will only be in public liability or medical negligence matters.

Can I continue to receive NDIS support after my compensation claim settles?

Yes. However, if you receive ongoing supports from the NDIA subsequent to receiving compensation, a ‘Compensation Reduction Amount’ (CRA) may be applied to your future plans.

How can we help?

It is important that you understand how the NDIA can interact with your personal injury claim. Having firsthand experience working with the NDIA and being specialists in personal injury law, we will ensure that you are properly advised of your entitlements. Please contact us on 1800 853 085.

Shane Don Laywers

Common Law Damages Update

COMMON LAW DAMAGES UPDATE
Maxiom’s Shane Don and Sach Fernando recently obtained an award of $190,000 on a Pain and Suffering basis for a young man who sustained a partial amputation at the tip of his index finger. The facts of this case are outlined below.

Incident:
The Plaintiff was a 33-year-old man who was employed as a Mechanical Trades Assistant. In around 2015, he commenced an apprenticeship with his employer, which involved taking classes at a TAFE.

In August 2018, whilst in a class, the Plaintiff was operating a lathe. A chunk key fell from the top of the machine over the vicinity of the turning chunk, causing the Plaintiff to instinctively attempt to catch the chunk key so that it would not strike the lathe. Consequently, the Plaintiff’s right index finger struck the turning chunk, resulting in a partial amputation.

Treatment:
The Plaintiff underwent a right index finger terminalisation and full thickness skin graft (FTSG) procedure. This procedure left him with a permanent surgical scar on his right wrist. He underwent a further Full Thickness Skin Graft and debridement surgery on his finger.

Despite the two surgeries and intensive hand therapy, the Plaintiff continues to experience chronic and neuropathic pain in his right index finger.

The Application
The Plaintiff made an application for a Serious Injury Certificate and was granted same for Pain and Suffering only.

He had had however returned to gainful employment, and as such would not succeed in a claim for economic loss.

Pain and Suffering Consequences:
The Plaintiff was right hand dominant. His consequences are summarised as follows:

  1. The right index finger is shorter and mangled. The Plaintiff’s evidence was that he felt repulsed looking at it.
  2. Every time the Plaintiff uses his right hand, he experiences pain and numbness.
  3. When the temperature is below 17 degrees, he experiences intense pain which feels like an ache or throb and shoots around his whole right hand.
  4. Difficulty doing simple tasks such as buttoning up a shirt, clearing his nose and wiping his backside after having gone to the toilet.
  5. The Plaintiff had to re-learn how to write because he can no longer grip a pen with his index finger.
  6. He has effectively been ruled out of most physical work and working outdoors.
  7. One of his greatest passions was Australian Rules Football (AFL) and he was a semi- professional umpire. As AFL is a winter sport that exacerbates the finger pain, his umpiring aspirations have been totally annihilated.
  8. Anxiety over the use of lathe.

At the time his Serious Injury Application was made, the Plaintiff was having minimal treatment, limited to some hand therapy, and taking pain medication.

Negligence:
The case against the TAFE was primarily that they failed to ensure the lathe had an operating safety guard over the location of the chunk. In addition, we submitted that the TAFE failed to provide:

  1. Provide the Plaintiff with any adequate training, supervision and assistance.
  2. Conduct any or any adequate assessment of the dangers and risks posed to persons learning
    at the premises.
  3. Ensure the lathe had an operating safety guard over the location of the chunk.
  4. Direct the Plaintiff to remove any tools, equipment or hazards from above the lathe before
    operating the lathe.
  5. Provide a safe place of learning.
    DAMAGES: The Plaintiff was awarded $190,000 on a pain and suffering basis only.

What do you do after a bicycle accident?

Bicyle accident

According to Australian Automobile Association (AAA), the number of cyclist fatalities in Australia has actually doubled over the last three years.

When going out for your regular bike ride, the last thing you expect is to be involved in an accident. But cyclists are especially vulnerable on the roads, and it does happen.

What if I’m involved in a bicycle accident?

First, you should be aware that you may be  eligible for entitlements, such as reimbursement of medical costs, income payments, or a lump-sum compensation.

Examples of circumstances under which you may be due compensation are: if you’re car-doored, hit by a driver who didn’t give way, hurt while attempting to avoid an accident, run into a parked vehicle during inclement weather or collide with another bike.

What should I do at the scene of a bicycle accident?

To begin with, do a head-to-toe assessment of yourself for injuries, and if you require medical assistance, call 000 immediately.

In case you need to take legal action, it’s important to note down the following details:

  • Date
  • Time
  • Location
  • Names and contact details of the drivers, riders, pedestrians, and witnesses involved.

Photographs can help enormously in determining who was at fault, so take photos of:

  • The area of the accident (including signage, traffic lights, road/path obstructions);
  • The impact on the bikes, cars and other property, from various angles; and
  • Injuries sustained by drivers, riders and pedestrians.

Should I report the bicycle accident to police?

Yes, the Police must be called.

If police are called, be sure to get three things: the name of the responding officer, the officer’s police station, and a report number.

What if I’m injured in a bicycle accident?

Contact us.

A bicycle accident can occur for many reasons – distracted pedestrians, careless riders, and negligent drivers, to name a few.

Regardless of who or what is at fault, remember that you have rights!

Your entitlements will depend on the particular circumstances, so it’s important to seek legal advice – but you should do so as soon as possible, as there are time limits to accessing entitlements.

Contact one of our experts today for an obligation free consultation. We will clearly explain your legal options to you.

Be assured that here at Maxiom Injury Lawyers, we will support you and always be in your corner. Call us on 0488 722 444 or 1800 85 30 85.

PPE requirements during COVID-19. What you need to know

By: Sach Fernando

facemask

COVID-19 has changed the world in so many ways, including how we work.

Living in a pandemic is new to all of us, so it’s understandable that there is some confusion about what to do and what not to do. Here’s what you need to know about COVID-19 and PPE.

What is PPE?

PPE stands for Personal Protective Equipment. In some industries, like construction and healthcare, PPE has always been a standard part of the workplace. But now with COVID-19, other workplaces use PPE, too.

Proper use of PPE helps protect the wearer from infection of COVID-19, and also helps stops the spread.

The type of PPE you use for COVID-19 depends on what you’re doing, but PPE can include any of the following: surgical masks, particulate filter respirators (such as P2 or N95), gloves, goggles, glasses, face shields, gowns and aprons.

When should I use PPE?

Employers are legally obligated to maintain a safe work environment by providing employees with safe and effective PPE that is clean and well-fitting.

An employer must also provide staff with clear information about how and when to use PPE. This includes training staff on how to use it properly – how to safely put it on, how to remove it, how to store clean PPE, and what to do with used PPE.

Last, but not least, an employer must make sure that all staff clearly understand all PPE training and instructions, including providing extra help with those for staff who speak little English.

Beyond PPE

Besides PPE, there are other measures that an employer should put into place to protect staff from COVID-19. Policies and procedures to ensure a safe workplace should include:

  • Good hygiene. This includes frequent washing and sanitising of hands, covering coughs or sneezes with the elbow, and regular wiping down of surfaces.
  • Physical distancing. This means ensuring there is always 1.5 metres between workers and customers.
  • Limiting gatherings. This entails enforcing limits on how many people are allowed to be together at the workplace.
  • Testing/quarantine: This requires unwell staff to stay at home, get tested, and remain in isolation until they get the all-clear from a doctor that it’s okay to return to work.

What if I feel unsafe at work?

Objectionable customer behaviour during COVID-19 has been an issue for those working in customer-facing roles. Between the verbal abuse and refusal to wear masks, it has caused terrible stress for workers.

If you have been subjected to such unacceptable behaviour at work, remember: you have rights! You have the right to speak up, and you have the right to expect something to be done about the issue at hand. And your employer has both the legal right and the legal obligation to keep all staff safe.

However, if your employer is not doing their duty to keep you safe, contact our legal team to understand your rights. If you require our assistance, please call us on 0488 722 444 or 1800 85 30 85.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

M: 0488 722 444

E: [email protected]

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Serious Injury Case Note: Kaos v ISS Security [2017] VCC 379

By: Sach Fernando

Serious injury case

Despite the Plaintiff suffering an acquired brain injury and post-traumatic stress disorder, the VWA denied his serious injury certificate. The matter was heard by His Honour Judge Saccardo, who found in favour of the Plaintiff.

 

Background

The Plaintiff was a 45-year-old former loss prevention officer employed by the Defendant.

On 26 March 2013 he was stationed at a Coles store in Richmond. He observed a shop lifter concealing an item and proceeding through the checkout area without paying. He approached the shoplifter outside the store, showed his badge and was assaulted. He fell backwards, hitting his head on the concrete floor.

The Plaintiff was taken to hospital where he was admitted for over two weeks, and received extensive rehabilitation.

 

Injury and Treatment

The assault resulted in the Plaintiff suffering a serious injury to his head, and psychiatric injury in the form of post-traumatic stress disorder.

His treatment included attendances at an acquired brain injury clinic, and regular consultations with his GP, Neuropsychologist and Psychiatrist.

The issue

The Plaintiff’s application for a Serious Injury Certificate was rejected and therefore an Originating Motion hearing was issued and listed before His Honour Judge Saccardo of the County Court.

The Defendant conceded that the Plaintiff’s injuries satisfied the threshold for a pain and suffering certificate.

The issues was therefore narrowed to whether the effect upon the Plaintiff of either the compensable organic brain injury or non-organic psychiatric injury, are such that he demonstrated a permanent loss of 40% of his capacity to earn income, and whether that loss was permanent.

 

Economic Loss consequences

Prior to his injury, the Plaintiff had demonstrated an impressive work history, working a second job as a truck driver whilst working full time for the Defendant. To his credit, he returned to work following his injury, and was working a maximum of 25 hours per week at the time of his Hearing. The work he was performing with the Defendant was purely administrative and the employer, to their credit, accommodated the Plaintiff’s limitations.

It was the Defendant’s case that the Plaintiff had a greater capacity than 25 hours per week. They adduced evidence from vocational assessor, Ms Joanne Bryant, to argue that the Plaintiff was capable of working in the following jobs:

1.      Gatehouse security officer

2.      Personal trainer/fitness advisor

3.      Uber driver

4.      Truck driver

5.      Aquaculture worker

The Plaintiff’s evidence endorsed the view that he had a maximum capacity to work 25 hours per week, albeit with limitations.

 

Threshold

The report of Ms Bryant detailed that a person holding a Certificate III in security was currently capable of earning $1,491 per week.

His Honour adopted this wage in fixing the Plaintiff’s without injury earnings. Accordingly, the Plaintiff had to establish that he could not earn more than 60% of $1,491, namely $894.60.

 

Medical Evidence

The Defendant relied on the vocational evidence of Ms Joanne Bryant and urged the Judge to be selective in his approach to the evidence of Professor Simon Crowe – which largely favoured the Plaintiff. Crowe concluded that interaction with the public would be a significant difficulty given the Plaintiff’s significant emotional response to his injury.

The Plaintiff’s treating doctors opined that he had no capacity for any of the vocations identified by Bryant due to his organic head injury alone, and based purely on his psychiatric injury.

Professor Walterfang identified ongoing fatigue and cognitive hypervigilance due to the Plaintiff’s post-traumatic stress disorder as being permanent limitations on his ability to work more hours.

Furthermore, Walterfang did not consider that further occupational rehabilitation or retraining would significantly improve the Plaintiff’s fatigue or concentration as these were an enduring sequale of his acquired brain injury and his ongoing post-traumatic stress disorder.

 

Held

His Honour held that the Plaintiff satisfied the statutory threshold based on the consequences of his psychiatric injury alone. He found the Plaintiff’s capacity had stabilised at 25 hours per week and that but for his injury, the Plaintiff would have continued to seek to maximise his income and his income would’ve increased.

His Honour considered that the Plaintiff’s treating doctors were best placed in the circumstances of the case to opine as to his work capacity.

His Honour found that the approach of the Defendant to Simon Crowe’s report lacked any substance and demonstrated the presence of an attitude of inappropriate selectivity on behalf of the defendant, in circumstances where the report clearly assisted the Plaintiff.

 

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: [email protected]

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