Question: I am looking to buy a franchise – how can a lawyer assist me?
Buying a franchised business can be a considerable commitment and it is important that you seek advice from a lawyer before entering into any franchise agreement.
Often, we hear of the need to undertake “due diligence" before entering into any contract. With respect to a franchise agreement, this is of critical importance. It is necessary that you fully understand what your rights and obligations are under the franchise agreement before you agree to same. A lawyer can assist you by reviewing the documents to explain these rights and obligations. Such documents would include:

the franchise agreement and disclosure statement
the sale of business contract
any lease agreement
the franchising code of conduct

Consideration will also need to be given to the licensing of any trademarks and the right to operate the business. There are numerous and various legal and contractual issues that would have to be considered before any definitive advice could be given about the franchise agreement. If you enter into a franchise agreement without undertaking your due diligence and seeking proper legal advice, then issues may arise which can cause significant problems in the future.
At Brydens Lawyers our Commercial Team are experts in franchising law. Our lawyers can assist you from the time of undertaking the preliminary enquiries and all due diligence necessary together with providing expert legal advice and representation in the negotiation and finalisation of any franchise agreement.
For all your franchising agreement legal needs, call Brydens Lawyers. WE DO provide expert legal advice and representation in relation to all franchising agreement matters.

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Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by Associate Solicitor, and the face of our Brydens Lawyers Legal Centres- Stephen Cahill!
They discuss the process by which our free* legal centres take place, the areas of law attendees enquire about, and how you can book your appointment today!
Take a listen!
To book your FREE* one-on-one consultation, view our upcoming legal centres here:
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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Question: I have recently undergone surgery, and have now developed a severe infection at the surgical site – am I able to make a claim ?
Regrettably the contraction of an infection following surgery may not necessarily be an unusual occurrence. As one doctor politely and succinctly put it: “Hospitals are full of sick people, that is where you get an infection”.
This somewhat unhelpful response does not answer the question that has been posed.
The contraction of an infection in itself does not establish any negligence on the part of the surgeon or the hospital. What needs to be proven, ultimately to the satisfaction of the court, is that the contraction of the infection arose as a result of some negligence on the part of the surgeon and/or hospital which caused or materially contributed to the contraction of the infection.
Any act or omission on the part of the surgeon and/or the hospital will be judged by reference to “peer professional opinion” for the purpose of determining whether such conduct or omission accorded with widely accepted practise. If not and it can then be established that the act or omission caused or materially contributed to the contraction of the infection then a claim will be available as against the surgeon and/or the hospital.
If a successful claim is prosecuted then compensation will be awarded by the court for non-economic loss (pain and suffering damages), any economic loss, any medical expenses incurred in the treatment of the infection together with future medical expenses, the value of any care that may be required either on a gratuitous or commercial basis (subject to limitations under the legislation), any other special heads of damage as well as an allowance for legal costs.
Brydens Lawyers are the experts in the prosecution of medical negligence claims. If you are concerned with any treatment provided or procedure undertaken then contact the experts at Brydens Lawyers today for an initial free consultation for an assessment to be made as to whether a claim may be available.

The post Question of the week- FRIDAY 07TH FEBRUARY – I have recently undergone surgery, and have now developed a severe infection at the surgical site – am I able to make a claim? appeared first on Brydens Lawyers.

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by the Director of Dynamic Consultants, and Sponsorship Manager for Mounties- Glenn Cox!
They discuss the benefits and importance of corporate partnerships, how to find the balance between investment and return, and detail the partnership that exists between Mounties and Brydens Lawyers.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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Question: What Is the Process for Appealing a Suspended Driver’s Licence?
Regrettably, the suspension of a driver’s licence is far more prevalent today than it has ever been. It can be argued that this is a good or a bad thing. The question that is often asked though is whether or not there is any appeal available from a suspended driver’s licence.
Generally, there are two different processes that can be followed following the suspension of a driver’s licence.
The first process applies to the suspension of a licence under the following circumstances:

You were speeding more than 35 kph above the speed limit.
you were speeding more than 30 kph above the speed limit
you are a provisional licence holder (P Plater) and have lost all your demerit points.

In such cases a “licence appeal” in the Local Court may be lodged. To do so please note the following:

An infringement notice or penalty notice will be received by the driver.
A determination is then made as to whether the infringement is to be challenged. If not, the fine is to be paid.
Following payment of the fine a notice of suspension will be received which will set out the date from which the suspension will commence. It will also provide the grounds upon which an appeal can be lodged by either calling the RMS or filing the appeal online.
Usually there is 28 days from the date of receipt of the notice of suspension to file the appeal. Time is of the essence.
A court date will be provided for the licence appeal hearing.

At court the magistrate who hears the licence appeal, following the admission of all relevant evidence, has three options. They are:

Allow the appeal. This will remove the suspension period completely and delete the demerit points;
Dismiss the appeal and confirm the suspension period; or
Dismiss the appeal and reduce the suspension period.

If you are a full licence holder and have exhausted the demerit point allocation, then a licence appeal cannot be lodged. However, you may seek to challenge the infringement or infringements which led to the exhaustion of the demerit points.
To challenge an infringement notice it is imperative that the fine is not paid. Payment of the fine will eliminate the right to appeal any suspension that flows from the exhaustion of the
demerit points. An appeal should be lodged as against the infringement by either calling the RMS or lodgement of same online.
Again, there will usually be 28 days from the date of receipt of the infringement notice with time of the essence.
On the hearing of the matter a magistrate, following the admission of all evidence, can:

Not record a conviction pursuant to Section 10, as a result you will not lose any demerit points and your licence will not be suspended.
Alternatively, convict you of the infringement and confirm the penalty. As a result, the suspension for the mandatory period will stand.

Many may be concerned with appealing a licence suspension because what may or may not happen in court. Generally, a magistrate will provide an opportunity for you to argue why your licence should not be suspended or why the infringement notice should not stand. Many factors are taken into account including the seriousness of the alleged misconduct, your traffic record and your particular need for a driver’s licence.
Your interests are best served by having proper legal representation. Brydens Lawyers are available to assist. An experienced and expert lawyer will guide you as to what evidence to prepare and will address the court on your behalf. It would be remiss of us not to say that the prospects of retaining your licence would be significantly improved with experienced and professional legal representation on your side.
If you are seeking to challenge the suspension of a driver’s licence or an infringement notice, contact Brydens Lawyers for expert and professional legal representation. Strict time limits apply. Do not delay. Contact Brydens Lawyers on 1800 848 848 today. Brydens Lawyers – WE DO help if your driver’s licence has been suspended.

The post Question of the week- FRIDAY 31ST JANUARY – What Is the Process for Appealing a Suspended Driver’s Licence? appeared first on Brydens Lawyers.

Question: What is the Succession Act?
The Succession Act 2006 was enacted to become the comprehensive legislative scheme which covers all matters concerning the estates of deceased persons and related matters. This fitted in with significant changes undertaken throughout the Commonwealth as part of a national movement to revise, update and harmonise State laws.
The Succession Act is designed to “restate, with reforms, the law relating to Wills in New South Wales: to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person: to make provision for the distribution of intestate estates: and for other purposes.” It is indeed a comprehensive scheme.
The legislation addresses issues concerning the making, alteration, revocation and revival of Wills. It provides for the rectification of Wills where required. It deals with international Wills. It covers all matters pertaining to any family provision application and also sets out in detail the processes and the procedures involved in any litigation under the Act.
The legislation also sets out in detail the various factors that a court will take into account when dealing with any application brought under the legislation. In some circumstances the factors that the court must take into account can be specific and exhaustive. It can be a complicated and complex area of law but does not need to be.
If you have any issue or concern with any matter that may touch upon the Succession Act or concern a dispute with respect to benefits under a Will, then the experts at Brydens Lawyers can assist. To make a Will or for a free no obligation assessment as to whether you may have any entitlements to challenge a Will for benefits that would otherwise you would be entitled to, contact Brydens Lawyers without delay. If it is Strict time limits can apply.

The post Question of the week- FRIDAY 24TH JANUARY – What is the Succession Act? appeared first on Brydens Lawyers.

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by the Practice Manager of our Workers Compensation division- John Matthews!
They detail the process one must go through when they are involved in a workplace accident, discuss what both the employee and employer need to be aware of, and outline the pitfalls that exist with New South Wales’ current Workers Compensation scheme.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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The post Workers Compensation and Your rights appeared first on Brydens Lawyers.

Question: I am being discriminated against in my workplace, do I have any legal remedies?
Discrimination is unlawful under both Federal and State Law. Employers can be held legally responsible for any discrimination as against their employees if it occurs in the workplace or in connection with their employment.
It is also important to note that an employer must take reasonable measures and precautions to prevent discrimination from occurring and to put in place measures to respond to any discrimination that arises.

Race
colour
sex
sexual orientation
age
physical or mental disability
marital status
family or carers responsibilities
pregnancy
religion
political opinion
national extraction or social origin

In the event that there has been discrimination which offends either Federal or State law then remedies can be sought through the Australian Human Rights Commission, Fair Work Ombudsman or the Fair Work Commission. Where matters are not resolved by the Fair Work Commission legal proceedings can be commenced in either the Federal Court or the Federal Circuit Court.
If you have been discriminated against in your employment where adverse action has been taken against you or you have been treated differently or the nature of your employment has changed to your disadvantage, legal advice should be sought immediately from Brydens Lawyers. Brydens Lawyers has an expert team of lawyers available to assist with all employment matters. Brydens Lawyers #WEDO help if you have been discriminated against.

The post Question of the week- FRIDAY 17TH JANUARY – I am being discriminated against in my workplace, do I have any legal remedies? appeared first on Brydens Lawyers.

Question: My spouse and I have decided to separate – at what stage should I consult a lawyer?
There is no strict rule as to when a lawyer needs to be consulted following the breakdown of a de facto relationship or marriage. Much will depend on the particular circumstances of the parties. For example if there are children for whom orders need to be made concerning custody and/or maintenance, then a solicitor may need to be consulted once the decision has been made to end the relationship if a dispute exists as between the parties with respect to the welfare of the child or children.
If there are no children and it is simply a matter of the parties separating, then a solicitor may not need to be consulted. It is possible for the parties to apply for a divorce without legal representation. It is also open to the parties to resolve any claims that they may have concerning property and assets.
However, the ending of a relationship or marriage can be a traumatic time. You may feel more comfort in consulting with a lawyer so as to ensure that you are fully informed as to your rights and entitlements particularly as to the distribution of the assets that were either brought in or accumulated throughout the course of the relationship. Without the benefit of legal advice many people would simply not be aware of what their entitlements would be.
There are time limits which apply to the lodgement of any application to resolve a property dispute. For de facto relationships the limitation period is 24 months from the date of separation. In the event of a marriage breakdown, the limitation period for lodgement of application to resolve a property dispute is 12 months from the date the divorce becomes effective.
In our experience there is no substitute for expert legal advice to assist in resolving disputes which can arise following the ending of a de facto relationship or marriage. With the provision of expert legal advice and the representation that Brydens Lawyers can provide, you will be assured of receiving all of your entitlements from the assets available for distribution. In the case of infant children, we will assist in ensuring that their interests are also fully protected.
Brydens Lawyers are the specialists in Family Law. For expert legal advice and representation with respect to any family law needs whether same arises from the breakdown of a de facto relationship or marriage or whether you simply seek advice as to what your entitlements may be in the event of the ending of a relationship, contact Brydens Lawyers today.

The post Question of the week- FRIDAY 10TH JANUARY – My spouse and I have decided to separate – at what stage should I consult a lawyer? appeared first on Brydens Lawyers.

Following my recent post concerning medical negligence claims an enquiry was received as to whether it was also possible to sue lawyers and judges in the event that they have been negligent.
The simple answer is yes and no.
A lawyer can quite readily be sued if it is established, again ultimately to the satisfaction of the court, that the lawyer has been negligent and that as a result of that negligence, theclient has suffered injury, loss or damage. The question of negligence is determined by reference to “peer professional opinion” which necessarily involves the engagement of peers, which would of course be other lawyers who practice in the area of law which is the subject of complaint, to determine whether or not the conduct of the lawyer being sued accorded with peer professional opinion. If not, and as I have said, that conduct resulted in any loss to the client, then the lawyer would be held liable to the client in negligence and damages would be awarded in favour of the client.
As to judges, the situation is very different. An enquiry was made as to whether a judge could be sued if their decision is ultimately reversed on appeal but as a result of which there has been injury, loss or damage suffered by a member of the public. The short answer is, a judge cannot be sued. Judges are however held to account for their decisions by way of either appeal to a higher court or as a matter of public scrutiny. As succinctly put by B Debelle, “Judicial Independence and the Rule of Law”, (2001) 75 Australian Law Journal 556 at 563,
“Public confidence is also maintained by the fact that judges are clearly accountable in the most public way for their decisions. Litigation is conducted in public. There is an obligation to give reasons for decisions. Those reasons are public. Those reasons are also liable to appeal. If not appealed, they are open to academic and other criticism. Thus, the work of judges takes place in the open and in a public way and is a manifestly transparent process.”
It is imperative to the proper and efficient operation of our democratic system that there be maintained a separation of powers as between the executive, legislature and judiciary. A critically important element of judicial independence is that judges be immune from being sued in and about the performance of their functions.

The post Latest News From Lee 07th January 2020 appeared first on Brydens Lawyers.

Question: My medical condition has worsened due to my doctor failing to give me a referral- am I eligible to make a claim?

There is imposed upon a doctor and all healthcare professionals an obligation to ensure that they conduct themselves with all due care and skill in and about the treatment of a patient. That is, the doctor or the healthcare professional has a duty of care to take all reasonable precautions for the wellbeing of the patient and to act in accordance with peer professional opinion so far as the treatment of the patient is concerned.
Sometimes things go wrong. The mere fact that there has been a poor outcome from an interaction with a doctor or healthcare professional is not in itself sufficient to establish an entitlement to a claim. What needs to be proven, ultimately to the satisfaction of the court, is that the doctor or healthcare professional did not act in accordance with peer professional opinion and were negligent and that as a result of that negligence, the patient suffered injury, loss or damage.
The failing of a doctor to refer a patient on for further treatment or investigation, could in itself establish negligence on the part of the doctor. What would need to be proven is that the failing of the doctor to provide the referral does not accord with peer professional opinion and thus constitutes negligence on the part of the doctor. It would be necessary to establish what exactly peer professional opinion was in the circumstances and whether such opinion provided for the appropriateness of a referral being given. If so, then the failure by the doctor to give the referral would constitute a breach of that peer professional opinion and therefore negligence on the part of the doctor.
Furthermore, it would have to be established that the failure to provide the referral caused injury, loss or damage to the patient. The failure to provide the referral in itself would not sound in any damages. Although same may constitute negligence on the part of the doctor it would have to be shown that the negligence caused or materially contributed to an injury, loss or damage suffered by the patient. That is, negligence with no consequences does not entitle the patient to make a claim.
The prosecution of any medical negligence claim can be complex and complicated. It need not be.  Brydens Lawyers have experts available to assist with the prosecution of any medical negligence claim in the event that you have suffered injury, loss or damage as a result of a failing or any neglect on the part of a doctor or treating healthcare professional. If you have such a concern then contact Brydens Lawyers today. Strict time limits can apply.
 

The post Question of the week- THURSDAY 20TH DECEMBER – My medical condition has worsened due to my doctor failing to give me a referral- am I eligible to make a claim? appeared first on Brydens Lawyers.

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee gives a wrap up of 2019- the major events that have occurred, the year at Brydens Lawyers, and an insight into what 2020 will hold.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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It is with some degree of angst and grief that I read the report prepared by Victorian Ombudsman, Deborah Glass, following an 18 month investigation into the Victorian Workers Compensation scheme.  Although the report was directed entirely to the Victorian scheme, there are many features of the report which will resonate in NSW.
In essence, the report has found that the scheme has failed long term injured workers in “downright immoral and unethical” circumstances.
A damning indictment indeed.
As is the case in NSW the Workers Compensation scheme in Victoria is outsourced to claims agents being private insurers.
The Ombudsman found that the insurers were terminating legitimate claims made on behalf of injured workers in wholly unreasonable circumstances.  It found that claims agents were “cherry picking” medical advice to reject compensation claims.
The investigation focussed on the more seriously injured workers who had been off work and receiving compensation for more than 130 weeks.  There was evidence found that all scheme agents “insurers” were ignoring medical advice and “doctor shopping” to find evidence to terminate or reject such complex claims.
This report followed a 2016 report which came to a similar conclusion where it was found that complex WorkCover cases were being mishandled, deliberately delayed or cancelled with minimal medical reasoning.
After 30 years of practice I find it difficult to understand why within the insurance industry and successive State Governments, persons who are the innocent victims of an injury either at work or on the road, are treated as second class citizens.
Not only do they have to face the ignominy of a hostile insurance industry but there are now moves afoot in NSW to “reform” the entire personal injury scheme so as to provide that such injured persons are forever denied an opportunity to have their claims determined by a judge of the court.  Such claims are to be determined in tribunals by assessors or conciliators or mediators.  Why such persons should be denied access to a judicial system for the purpose of having their claims determined by a fully independent member of the judiciary is beyond my comprehension.
If you are involved in a family law dispute, a commercial dispute, an equity dispute or in defamation proceedings then your case will be determined by a judge.  If you are the innocent victim of an accident and have suffered injury and have the audacity to make a claim, then your claim may ultimately be determined by a claims officer or an assessor or a mediator or a conciliator or a facilitator.  You will not have your claim determined by a judge.
The pendulum has swung so far against the interests of the injured worker and motorist we can only hope that it has swung so far that it must eventually swing back.

The post Latest News From Lee 17th December 2019 – Workers Compensation Scheme Investigation appeared first on Brydens Lawyers.

Question: I Have Suffered a Loss of Hearing Due to My Line of Work – Am I Eligible to Make a Claim?
In order to make a claim for hearing loss a worker needs to establish that the loss arose from the worker’s “noisy employment”. That is, loss of hearing is not enough to establish a claim. A medical assessment is undertaken to determine that the hearing loss is in fact related to the employment.
If a worker believes that they may have suffered industrial hearing loss they should consult their doctor and request a hearing test to be undertaken. Various hearing centres will provide free hearing tests.
Once the hearing test has been conducted which demonstrates hearing loss and examination is thereafter arranged with an Ear Nose and Throat Specialist to undertake a full assessment to determine:
Additional changes worthy of noting are as follows:

The level of binaural (on both sides) hearing loss.
The extent to which the hearing loss is attributable to the worker’s employment.
Any recommended treatment, for example, the provision of a hearing aid.

It is important in the making of a claim for hearing loss to determine the “date of injury”. Generally speaking the date on which notice of the injury is given is deemed to be the date of injury. If at the time of giving notice the worker is not employed at a noisy workplace or at all, then the date of injury is deemed to be the last day that the worker was employed in a noisy workplace. A workers compensation insurer can seek a contribution from any previous noisy employers in the five-year period preceding the claim.
Once hearing loss has been established as being referable to a noisy workplace then a claim for compensation may be available. For injuries which occurred after 1 January 2002 a claim for lump sum compensation is only available if the worker is assessed as having an 11% whole person impairment or more arising from the hearing loss. In order to achieve this threshold the worker must establish a binaural hearing loss of at least 20.5%
For injuries before 1 January 2002 the hearing loss is compensable if assessed at being at least 6% or more binaural hearing loss.
Again yet another example of “reform” undertaken by a State Government which serves only to reduce the level of compensation available to an injured worker and for the benefit of the insurance companies.
An entitlement to the provision of hearing aids is not dependent however on the level of permanent impairment resulting from the hearing loss. Hearing aids are regarded as medical aids and therefore the cost of same is recoverable from the workers compensation insurer as long as you are able to establish that the necessity for the hearing aids arises from compensable hearing loss.
If you have suffered hearing loss then you should undertake an assessment to determine the extent of that loss and whether same is related to your employment. If so, contact the experts at Brydens Lawyers today for the purpose of a free initial consultation to assess your entitlements to compensation.

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Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by the CEO of the Wests Tigers – Justin Pascoe! They delve into the upcoming 2020 season, provide a status update on the Wests Tigers Centre of Excellence, and discuss the mutual benefits that arise from corporate sponsorships.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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The post What’s Ahead for the Wests Tigers in 2020 Featuring Justin Pascoe appeared first on Brydens Lawyers.

Question: What Are the New Legalities Surrounding off the Plan Sales?
Amendments have been made to the legislation and regulations which govern conveyancing in New South Wales effective 1 December 2019 which concern off the plan sales. These new laws have placed additional disclosure obligations on the vendors so that purchasers can enjoy greater transparency in relation to the dealings with additional levels of protection from breaches which otherwise could occur as well as additional remedies in the event of a breach.
The changes require additional prescribed documents to be attached to any off the plan contract which will include:

A completed disclosure statement by the vendor;
A draft plan to be prepared by a registered surveyor; and
Any other relevant documents as set out in the new regulation.

The changes provide that a purchaser can rescind an off the plan contract within 14 days of exchange if the disclosure statement, draft plan or relevant prescribed documents are not attached to the off the plan contract if same is exchanged on or after 1 December 2019.
Additional changes worthy of noting are as follows:

There is an ongoing obligation on the part of the vendor to notify the purchaser of any changes to any of the material particulars concerning the sale. Material particulars would include:

the draft plan
by-laws
the schedule finishes
easements or covenants
a strata management statement or building management statement
a management statement for a community, precinct or neighbourhood scheme
a development contract or strata development contract

Purchasers may be able to rescind or seek compensation if there is a change to a material particular.
The cooling-off period for off the plan contracts is extended to 10 business days.
The final registered plan must be provided to the purchaser at least 21 days prior to settlement.
Deposits paid upon exchange of contracts must be retained by the stakeholder in a trust or controlled monies account.
There are stronger sunset clause protections in that the new laws now extend the definition of sunset clause to capture other events which trigger termination of the contract, such as the issuing of an occupation certificate.

The new disclosure regime and statutory remedies referred to above will apply to residential off the plan contracts entered into as from 1 December 2019. They do not apply to contracts that arise from option deeds that were exchanged prior to the commencement of the changes. on 1 December.
However, the new sunset clause provisions will apply to all off the plan contracts, irrespective of whether they were signed before or after the commencement of the changes on 1 December.
The changes to the prescribed form of the cooling off period warning notice will affect all contracts for the sale of residential property, not only off the plan contracts, from 1 December 2019.
Brydens Lawyers has available for your assistance an expert conveyancing team headed by our Associate and Licensed Conveyancer, Celeste Revell. The purchase of a home either outright or off the plan may represent the most important purchase of your life. Let the experts at Brydens Lawyers help guide you through the process every step of the way. Contact Brydens Lawyers for all your residential conveyancing requirements.

The post Question of the week- FRIDAY 06TH DECEMBER – What Are the New Legalities Surrounding off the Plan Sales? appeared first on Brydens Lawyers.

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by Tanya To, a Senior Associate from our Common Law division! They discuss the legalities surrounding the Motor Accident Injuries Act- what it means for the person at fault, and the process for theparty not at fault.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

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The post I’m Injured Why Should I Contact a Lawyer Featuring Tanya To appeared first on Brydens Lawyers.

Welcome to LawPod by Brydens Lawyers!
 
In this week’s edition of LawPod, Lee is joined by David Sexton, the CEO of Variety The Children’s Charity! They discuss how Variety came to be, the various programs they are involved in, and how businesses or individuals are able to get involved.
Take a listen!
If you have a guest/topic you would like to see featured – please send it through to: [email protected].

Download the podcast

The post Brydens and Variety Featuring David Sexton appeared first on Brydens Lawyers.

An article published by insurancenews.com.au on 22 November 2019 references a reported $876 million net loss by NSW State owned Icare for its workers compensation Nominal Insurer scheme last financial year amid rising medical costs and falling bond yields.
It is reported that gross premiums were in the order of $2.5 billion while net claims expenses/scheme costs were just over $4 billion. That is, there was a reported underwriting loss of almost $2.4 billion while Icare received a net investment revenue of just over $1.6 billion.
The article continues with reference to the financial performance of the scheme subject to factors which significantly affect the results over which Icare has limited ability to control or influence. The report says “in aggregate economic assumptions, bond yields and inflation have adversely impacted Icare’s schemes by around $2.2 billion”.
The report bespeaks a rise in medical costs per claim of around 40% since 2015 in part due to the NSW workers compensation scheme paying AMA rates +50% which no other Australian jurisdiction does.
It is most interesting that the article references a potential loss by the scheme due to a number of factors including rising medical costs, bond yields and inflation. However, what is glaringly absent is any concern raised with respect to the level of benefits being paid to injured workers.
It is incredulous that such an important scheme as the WorkCover scheme in NSW can be so largely dependent on bond yields and inflation to determine the economic viability of the scheme. The schemes were not, or so we understood, enacted for the purpose of enabling Icare and other government agencies to invest the funds for the purpose of seeking financial return but rather, managing the funds for the benefit of injured workers.
After all, is this not the purpose of a workers compensation scheme?
Perhaps our analysis of the scheme, its purpose, the fiscal responsibilities of the scheme managers and the competing interests of the stakeholders is somewhat simplistic. If so, please forgive us. After all, having practised in the area of workers compensation for over 30 years, one might have thought that we would have a fair understanding of what the purpose of the scheme is and that if there is any failure on the part of the scheme managers to properly manage the scheme, by way of investment of funds or otherwise, then ultimately it is not the injured worker who has to pay by way of a reduction in benefits.
It is always the injured party, whether it be the injured worker or the injured motorist, that is the soft touch who bears the brunt of any fiscal mismanagement by scheme managers, lack of empathy by legislators or unadulterated greed of insurers.
It just cannot be allowed to continue.

The post Latest News From Lee 26th November 2019 – Workers Compensation appeared first on Brydens Lawyers.

The State Insurance Regulatory Authority (SIRA) has been kind enough to share with us a “snapshot” of the motor accident scheme introduced on 1 December 2017 for the period up to 30 September 2019.
Salient features of the scheme include:

19,382 claims have been lodged.
Of those claims, only 4,622 claimants are legally represented. That is, there are 14,760 claimants dealing directly, at their peril, with insurance company representatives. Insurance company representatives are well trained and well versed in minimising claims for the benefit of their employer. Their interests are not the interests of the injured claimant.
16,496 claimants have had a determination made of their injuries. Of the 16,496 claimants assessed 9,550 have been determined to have suffered a minor injury or an indicative minor injury. That is, of the total claimants assessed 58% have or will be determined to have suffered a “minor injury” so that they are not entitled to receive any benefits for more than 6 months following the subject accident.
Curiously SIRA has not provided to us the total of the premiums which have been collected by the insurers since the introduction of the scheme on 1 December 2017. It is not difficult to discern why. It would be incredibly embarrassing for SIRA and the insurers to disclose what they have recovered by way of premiums. I think we can safely assume that the figure is well in excess of $4 billion.
We are told however what the insurers have paid out. This is indeed most illuminating.
In total, from the assumed sum of $4 billion plus collected in premiums, insurers have paid out just over $240 million. That is insurers have retained well in excess of $3.7 billion in premiums collected. Not a bad profit margin by any measure!
Of that $240 million, $1,257,000 was paid by way of “non-economic loss” damages. That is, damages paid to injured persons for their pain and suffering.
Of that $242 million, the insurers have paid almost $11 million for “insurer investigation”. That is, the insurers have spent almost nine times more on the investigation of claims than they have on payments by way of pain and suffering to claimants.

The more information which is selectively released by SIRA, the worse it looks for this scheme. The figures speak for themselves. Injured motorists, pedestrians, passengers, bicyclists and other road users are not receiving adequate compensation. All that the Motor Accident Injuries Act 2017 has done is to create a conduit for the transfer of incredibly large sums of money directly from the pockets of motor vehicle owners to CTP insurers. This was all but confirmed by the recent post from the Minister responsible, Mr Victor Dominello when he announced the consideration of legislation for the purpose of clawing back “super profits”. As I said at the time, the mere suggestion that there is any concern that insurers are making “super profits” within 2 years of the introduction of a new motor accident scheme is in itself the
most damning indictment as to the complete failure of the scheme.

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