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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: sfernando@maxiomlaw.com.au

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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: sfernando@maxiomlaw.com.au

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A REAL EYE-OPENER: Thomas Vogel v Shecky Pty Ltd [2016] VCC 1600

By: Sach Fernando

EyeOpener

 

Background:

The Plaintiff was a 47 year old German born man who lived with his wife and two young children. He was employed with the Defendant in 2005 as a crowd controller, working 11 hours per week on a part time basis. In addition to this work, the Plaintiff also worked as an amateur film maker and had produced a number of short films screened in Australia and International film festivals. The Plaintiff also had been involved in films both as an actor and editor, had organised a film festival which ran for several years, and organised a monthly short film night where directors of short films attended and exhibited their work. His work in the film industry was, for a large part, unpaid. It was his passion.  

Incident:

On 8 September 2012 The Plaintiff was struck over the head with a glass bottle by a patron whilst attempting to diffuse a fight at the Night Cat – a live music venue in Fitzroy. As a result, he suffered fractures to his face and skull. The assault caused a depressed fracture to the supraorbital area of the Plaintiff’s head, above his left eye. He subsequently suffered nasal obstruction, resulting in sleep apnoea.

Treatment:

The Plaintiff was treated initially at St Vincent’s hospital and the Royal Victorian Eye and Ear hospital for a blowout fracture of the left orbit. On 26 September 2016 he underwent surgery at St Vincent’s. Two plates and 11 screws were inserted into his face to repair the fracture around his left eye. He underwent further surgery on 8 May 2013 to have the metal wear removed.

Despite the surgery and treatment, the Plaintiff continues to experience pain in his left eye, for which he is taking Lyrica (two tablets every day), and consults his GP and Neurologist. He also suffers from sleep apnoea, for which he had seen a Sleep and Respiratory Physician and has been advised to wear a CPAP mask at night.

The Proceedings:

This proceeding pertained to the rejection of the Plaintiff’s Serious Injury Application, seeking to recover damages for his pain and suffering.

The Plaintiff claimed two serious injuries arising from the assault:

  1. In relation to the supraorbital fracture, he claimed it has impaired the functioning of his left eye, or in the alternative, the functioning of the structure of the left eye area, or the nervous system surrounding the eye; and
  2. In relation to the nasal obstruction, he claims it has impaired the functioning of his respiratory system.

The Issue:

Whether the consequences and impairment to the Plaintiff’s left eyeand/or his respiratory function, were at least very considerable.

The Test:

The Plaintiff had to satisfy to the court that he suffered a compensable injury in the assault to the left eye (supraorbital fracture) and/or the respiratory system (nasal obstruction), which resulted in a permanent impairment of a body function, the consequence of which were at least very considerable. The two injuries had to be assessed separately as it is impermissible to aggregate the two in order to establish a serious injury.

The test is subjective and the effects of the injury on Plaintiff had to be considered. However, in considering the seriousness of the injury, the Court has to determine the test objectively.

Medical Evidence

The Defendant sought to argue that the Plaintiff didn’t suffer a serious injury to the left eye because his vision had not been impacted, and this is the primary function of the eye.

The Plaintiff argued that, in considering the functioning of the eye, the Court had to consider the structures which surround the eye and support its functions. This included the eyelids and nervous system. The Plaintiff suffered from nerve pain, and had symptoms associated with twitching and redness, for which he was treated by Neurologist, Dr Poon, who had prescribed him Lyrica.

The Defendant sought to rely on a desktop report of Mr Millar (Otolaryngologist) to argue that there was no causal link between the assault and Plaintiff’s nasal septal deviation. Mr Millar concluded that Plaintiff’s snoring tendency and sleep apnoea was due to significant anatomical reasons including his weight and large tonsils. However, he failed to take into account several considerations detailed in paragraph 63 of Her Honour’s judgment.

The Plaintiff relied on Dr Chazan (Respiratory & Sleep Disorder Physician) who, after conducting an examination, concluded that there was a causal link between the assault and Plaintiff’s nasal obstruction and snoring.

Pain and Suffering Consequences of the Left Eye

  1. Constant tingling, pain and numbness in the area above his left eyebrow, towards his scalp;
  2. Constant pain just below his left eye, which is tender to touch;
  3. At least once or twice a week he would have ‘ice-cream’ headaches which come on unpredictably and requires him to lie down, with the lights out for a period of time;
  4. Left eye looks droopy and feels like it doesn’t sit properly in the eye socket;
  5. Left eye tires easily, especially after reading or looking at a computer screen for longer than 30mins. This causes interferences in his studies, and will restrict him in the future when editing short films;
  6. Tiredness causes twitching in his left eye, causing him to retire from social functions early, and can be problematic for driving. If his eye is twitching, he would opt not to drive; and
  7. Painful redness in his left eye after swimming in a salt water pool, which interfered with his ability to enjoy holidays with his children.

Pain and Suffering Consequences of the Respiratory function:

  1. Use of a CPAP machine on a nightly basis;
  2. CPAP mask can be uncomfortable;
  3. CPAP machine is long term and nothing further can be done for him; and
  4. Due to the machine’s noise, the Plaintiff’s wife had to sleep in a separate room.

Judgment of Her Honour Judge Tsalamandris

The Plaintiff established that both, his left eye impairment and injury to the respiratory system were caused by the assault on 8 September 2012.

Consequences arising from the impairment to his left eye, including the structures which surround it and support its functioning, and respiratory function, when judged separately, and by comparison with other cases in the range of possible impairments or losses, were found to be very considerable.

The requirement to be attached to a CPAP machine was found to be a very significant consequence, and described by Her Honour as both, ‘cumbersome and inconvenient’ given sleep is a fundamental aspect of daily living. The use of the machine also had a considerable consequence to the Plaintiff’s marriage, requiring him to sleep in a separate room and thereby depriving him of intimacy and companionship.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: sfernando@maxiomlaw.com.au

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