Many Australians do not own their home and live in a rental property. Typically, the property is owned by a landlord who engages a real estate agency to deal with the day to day upkeep of the property.
If a tenant or visitor is injured due to a fault with the rental property, they may be entitled to compensation. The injured person may be able to sue the landlord, the real estate agency, as well as other parties such as a tradesperson if there has been faulty repair work.
Cases of this kind can be hard fought and have been considered by the High Court of Australia in Jones v Bartlett. In this case, the Plaintiff was injured after walking into a glass door which shattered. The glass did not comply with the Australian Standards in force at the time of the injury (having been installed decades before the injury). However, the Court held that the Defendant landlords were not negligent in failing to ensure this particular door kept up with the evolving Australian Standards.
However, a landlord or real estate agency cannot necessarily rely on this decision to defend a claim. Oftentimes, a case can be boiled down to: should the landlord/real estate agency have been aware of the defect in the property? If so, what (if anything) should have been done about it to prevent the injury?
A paper trail of complaints about a particular defect prior to the injury will help tip the case in the injured person’s favour. Injured persons should be careful to keep whatever evidence they may have (text messages, emails etc) which may help in proving the landlord/real estate agency was warned of a particular defect before an injury occurs. The injury should be reported to the landlord/real estate agency as soon as possible and in as much detail as possible.
Assuming the case is successful, the injured person is entitled to claim compensation for past and future economic loss, past and future care, pain and suffering and past and future medical expenses.
These cases often require both expert medical evidence (commenting on the physical and psychiatric injuries) and what is known as expert liability evidence, or evidence from someone with the right background (for example, a builder) to comment on what should have been done to make the property safer for occupation.
Strict time limits do apply to these claims, meaning injured persons should seek legal advice without delay to ensure they do not miss out on a potential entitlement to compensation.
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Notify your employer
You must report your injury as soon as possible to your employer and fill in the injury book or register of injuries book at work.

Consult your doctor
You should be seen by a doctor as soon as possible. Your company may have a preferred doctor, however, you are entitled to choose your own doctor. Be very clear in explaining your injury to your doctor, specifically stating that is was a work injury.
If you need time off work as a result of your injury, you will need to obtain a WorkCover Certificate of Capacity from your doctor. This certificate will detail your capacity for work and diagnoses.

Complete a Workers Compensation Claim Form
You should be provided with a copy of this form when you report your injury to your employer. Alternatively, you can request a copy from your doctor.
Complete the claim form, attach your Certificate of Capacity to the claim form and submit to your employer.
Ensure you keep a copy of the completed claim form and certificate for your records.

What am I entitled to claim if I am injured at work?

Weekly Compensation Payments
If you are injured at work, you may be entitled to be paid weekly compensation payments for loss of earnings, if you are either unfit for work or not fit for your normal pre-injury duties. If you are only able to perform suitable duties, you may be entitled to be paid make up pay from the workers compensation insurer.

Medical and rehabilitation expenses
You may also be entitled to be paid all of your reasonable medical treatment expenses which can cover a range of expenses, including seeing your GP, specialist, having treatments including physiotherapy, surgery if required, medication, travel costs to see your treating doctors etc.

Lump Sum payment
An injured worker may also be entitled to seek a separate payment for pain and suffering if they have sustained a permanent injury and their whole person impairment is at 11% or greater, or if it is a psychological injury, the whole person impairment needs to be 15% or greater.

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The world has seen a massive shift in work patterns during the COVID-19 pandemic, with workers ditching their daily commute to the office in favour of their study or dining room table. With post-pandemic work patterns likely to remain permanently altered as employers embrace remote working, workers compensation claims arising from working from home are expected to increase.
Just because you are not physically in the workplace, does not mean your employer can ignore its obligations in regard to your safety. Your employer has a responsibility to provide you with a safe workplace, and this includes when you work from home.
Can I lodge a workers compensation claim if I am injured whilst working from home?
Yes. If you are working from home and you are injured, you can lodge a workers compensation claim. Your claim should be accepted if it satisfies the relevant legislative tests under the Workers Compensation Act 1987 (NSW). For example, your injury must arise out of or in the course of your employment[1], and your employment must be a substantial contributing factor to your injury[2] (for disease injuries, your employment must be the main contributing factor to the contraction of the disease[3]).
Whether your injury will meet these tests depends on a number of factors, including what you were doing at the time you were injured, and when you were injured. Each case is determined on a case-by-case basis, according to the individual circumstances. There must be a causal link (‘arising out of’) or alternately, a temporal link (‘in the course of’) between your employment and your injury.
Case example: Workers Compensation Nominal Insurer v Hill
A recent case highlighting the liability of employers for employees working from home is Workers Compensation Nominal Insurer v Hill[4] (‘Hill‘). Handed down by the NSW Court of Appeal on 31 March 2020, Hill demonstrates just how complex issues of this nature can be. The court found in Hill that an employer can be held responsible for injuries (and in this case, death) caused by family violence when an employee is working from home.
Background
Ms Hill was killed by her de facto partner, Mr Carroll, when working from home. Both Ms Hill and Mr Carroll were employed in a family business, which was operated from their home. Both were financial advisors. Mr Carroll suffered paranoid delusions that Ms Hill was conspiring to steal his clients and ruin him professionally. Tragically, he attacked Ms Hill with a hammer and killed her. He was charged with murder, however, was found not guilty due to insanity.
The children of Ms Hill brought a claim for workers compensation, claiming Ms Hill’s death resulted from injuries she sustained at work. The claim was denied by the workers compensation insurer. It was heard in the Workers Compensation Commission, and Ms Hill’s children were successful in their claim. It was appealed by the insurer to the Workers Compensation Commission Deputy President and the appeal was dismissed. The insurer appealed again to the NSW Court of Appeal.
Findings
The NSW Court of Appeal found that the Workers Compensation Commission did not err in finding there was a sufficient link between Ms Hill’s employment and her death.
As Mr Carroll was Ms Hill’s co-worker and supervisor, although “it was not a contractual condition of [Ms Hill’s] employment that she work with the risk of sudden and violent attack… the risk, which materialised, was part of a hostile working environment created by [Mr Carroll].”[5] Mr Carroll’s paranoid delusions also related (at least in part) to Ms Hill’s work duties. [6]
Furthermore, as Ms Hill worked from home, she sustained the injuries which caused her death whilst she was ‘on call’ at work. This was because, although the attack happened in the early hours of the morning whilst Ms Hill was in bed, there was enough evidence to support that Ms Hill worked outside regular office hours, including sometimes in the early morning, on weekends and at night. [7]
The court therefore found both tests were satisfied; Ms Hill’s injuries causing her death both arose out of, and were sustained during the course of, her employment.
Injured whilst working from home?
If you have been injured whilst working from home, you should immediately report your injury to your employer and seek medical treatment to ensure you are complying with your obligations as an injured worker. It is also a good idea to seek legal advice if you are thinking about, or have lodged, a workers compensation claim. For advice regarding your workers compensation rights and entitlements, contact our expert workplace lawyers on 13 43 46.
[1] Workers Compensation Act 1987 (NSW) s 4.
[2] Ibid s 9A.
[3] Ibid s 4.
[4] [2020] NSWCA 54.
[5] Ibid [36].
[6] Ibid [45-49].
[7] Ibid [40-44].
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Most of us don’t think about it very often, but having a properly drafted and valid Will is the simplest way to make sure the people who matter to us are taken care of when we’re gone. And it doesn’t have to be difficult or costly.
Turner Freeman Lawyers is sponsoring the Salvation Army Community Wills Day on Friday, 26 February 2021.
The Salvos offer a community service in which generous and independent local solicitors prepare simple Wills in exchange of $70 ($120 per couple) contribution to the Salvos work. It’s a great way to ensure you have a Will that reflect your wishes, while also supporting Australians in need.
Find out more information about the Community Wills Day in the flyer below.

 
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In August 2019, Annie Hoffman helped Mr Werfel, an Adelaide man who was diagnosed with mesothelioma be awarded a record payout of $3 million dollars against James Hardie in a precedent setting victory in South Australia.
Mr Werfel had been exposed to asbestos during work in the 1990’s as a fencing contracting, and again from performing home renovation on a house in Pooraka in 2000 and a house in Parafield Gardens in 2004.
Mr Werfel had no idea at the time of his exposure to asbestos dust that the products contained asbestos.
He went on to develop a rare form of mesothelioma, which will cut his life drastically short.
James Hardie appealed the decision to the Supreme Court of South Australia.
James Hardie argued that it did not owe a duty of care to those, like Mr Werfel, who might be unwittingly exposed to its toxic products which remain throughout the Australian environment, despite asbestos having been banned in Australia for decades.
A decision was handed down by the Supreme Court on 21 December 2020.
The Supreme Court  found unanimously that James Hardie did owe a duty of care to Mr Werfel, and in failing to properly warn the Australian public of the dangers associated with their product, including Mr Werfel, breached that duty. The Supreme Court found that James Hardie ought to have made “stronger, more frequent public statements about the risk of mesothelioma to persons who occasionally worked on it asbestos-cement products”, and that had it done so Mr Werfel would have acted on that warning and would not have contracted mesothelioma.
The decision means that the entitlement to claim compensation has been protected for others who have come across asbestos in the Australian environment during the course of work as a handyman or home renovation and who will go on to develop an asbestos related disease as a result of that exposure. This includes many people who haven’t yet been exposed.
This is without doubt the most significant Judgment in an asbestos claim in Australia since the decision of Latz.
The Supreme Court reduced Mr Werfel’s damages to $2.2 million. The decision still represents the largest award of damages to a person affected by a dust disease in South Australian history.
Congratulations to Annie Hoffman, Partner in our Adelaide office and her team on this mammoth win.
L to R: Annie Hoffman, Jenny and Mathew Werfel
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Exempt Workers
The term exempt worker refers to specific workers for which most of the amendments made to the Workers Compensation Scheme in 2012 and 2015 do not apply.
Exempt workers include:

Police Officers
Paramedics
Firefighters

The below will outline the two main differences in the general entitlements available to injured workers in NSW between exempt workers and other types of workers.
Weekly Compensation Payments
If you are an exempt worker, you are entitled to weekly benefits based on your current weekly wage rate (otherwise known as CWWR) before the injury. For workers paid under an award, industrial or enterprise agreement, the weekly wage rate is calculated at 100% of your CWWR (excluding overtime, shift worker, payments for special expenses and penalty rates). This will occur for the first 26 weeks post injury. This may differ for police officers.
In most circumstances after 26 weeks, the weekly benefit that will be paid to you will be either a fixed rate, known as the ‘statutory rate’ or 90% of your average weekly earnings, which is lesser.
This differs slightly to other workers entitlements to weekly compensation and the usual entitlement to weekly payments at the rate of 95% for the first 13 weeks and then the reduced 80% rate thereafter.
Lump Sum Compensation
Much like other types of workers, exempt workers are also entitled to claim lump sum compensation pursuant to Section 66 of the Workers Compensation Act 1987 for injuries that result in permanent impairment. For general classes of workers, as a result of the amendments made to the scheme in 2012, for physical injuries the minimum permanent impairment required to make a claim is 11%. For psychological injuries, the minimum permanent impairment required to make a claim is 15%.
As exempt workers are not impacted by the 2012 amendments, the minimum permanent impairment required to make a claim is 1% pursuant to Section 66 of the 1987 Act. However, for psychological injuries, the minimum threshold remains at 15% permanent impairment.
Furthermore, if an exempt injured worker is assessed or agreed to suffer at least 10% whole person impairment or greater for physical injuries and 15% whole person impairment or greater for psychological injuries, in addition to the lump sum entitlement available to them pursuant to Section 66 of the 1987 Act, they are also available to claim a discretionary amount pursuant to Section 67 of the 1987 Act for pain and suffering up to an amount of $50,000. This is an important entitlement as other types of workers are not entitled to a Section 67 payment for pain and suffering as a result of the 2012 amendments.
Exempt workers are also entitlement to bring a further claim for lump sum compensation, if there has been a deterioration in the worker’s injuries since the last claim for lump sum compensation. This differs markedly to the general class of workers whereby they are only entitled to make one claim for lump sum compensation pursuant to Section 66 of the 1987 Act, regardless of their deterioration of their injuries.
Enquire Now
If you are an injured worker, do not hesitate to contact Turner Freeman on (02) 8833 2500 to discuss your entitlements under the Workers Compensation scheme.
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Asbestos victory confirms James Hardie owed duty of care to warn home renovators of asbestos risks
The Full Court of the Supreme Court of South Australia has rejected an appeal by James Hardie against a precedent-setting asbestos compensation claim, unanimously finding that the company owed the public a duty of care to warn them of the risks posed by in-situ asbestos cement products.
Lawyers representing 44-year-old Adelaide father-of-three Mathew Werfel said the decision had far-reaching consequences for former asbestos manufacturers and their insurers, potentially opening up compensation claims for people who contract mesothelioma due to home renovations.
Mr Werfel, 44, who lives in Adelaide’s northern suburbs with his wife Jenny and three daughters, was diagnosed with mesothelioma — a terminal cancer caused by asbestos exposure — after discovering a lump in his groin in 2017. He has subsequently undergone multiple major surgeries, along with aggressive rounds of radiotherapy and chemotherapy.
He was first exposed to asbestos as a teenager, while working for a fencing contractor after leaving school. He was subsequently exposed during home renovations, including when he sanded and painted the walls of his first home in Adelaide’s northern suburbs, which he didn’t realise were constructed from asbestos cement sheets.
Mr Werfel welcomed the Full Court decision, saying he hoped it would finally force James Hardie to undertake the extensive public health campaign needed to ensure all Australians were aware of the risks posed by asbestos products.
“I’m extremely thankful for this outcome, which will at least provide financial security for my wife and children when I am gone,” Mr Werfel said.
“Compensation doesn’t make up for the decades of life I have been robbed of by James Hardie’s negligence. I will miss out on so many important milestones that most people take for granted, such as seeing my daughters grow up and have families of their own.
“This case was never about me. From day one we were fighting on behalf of everyone across Australia who continues to be unknowingly exposed to James Hardie’s deadly asbestos products in their homes, workplaces, and schools.
“The Full Court unanimously shared our view that James Hardie owed the community a duty of care to run an extensive public health campaign warning of the ongoing risks posed by their asbestos products.
“My hope is that the lasting legacy of my legal battle will be James Hardie finally taking responsibility for their past actions and devoting the millions of dollars needed to get the message out to every Australian about the asbestos risks that continue to lurk in the community.
“If I can prevent even one other person from contracting a deadly asbestos disease, this legal fight will have been worth all the energy we put in.”
Mr Werfel’s solicitor, Turner Freeman Lawyers partner Annie Hoffman, said the case would have far reaching consequences for anyone who contracts mesothelioma as a result of undertaking home renovations.
“This judgment has significant and far-reaching implications for ‘third wave’ asbestos victims, those exposed to asbestos products that still remain in millions of homes, workplaces, and public buildings,” Ms Hoffman said.
“The decision extends James Hardie’s legal liability beyond the products they sold to end users to all those who may come into contact with those products in future, including those who are still being exposed during home renovations.
“The Full Court confirmed that James Hardie had a duty of care to the public to warn them of the ongoing risks posed by their asbestos products, and remains legally liable for the lives those products continue to destroy.
“This decision sets a precedent for any person who contracts mesothelioma due to drilling, sanding, cutting or handling James Hardie asbestos cement in their homes.
“The court unanimously agreed with our argument that James Hardie had an obligation to run a public awareness campaign to warn the Australian public about what these products look like, where they are found, and what to do to avoid asbestos exposure.
“Sadly, James Hardie’s asbestos cement building products can still be found in homes, schools, workplaces, and public buildings, built before 1983 where they continue to pose a significant threat to public health, with many still at risk of being unknowingly exposed to this deadly fibre.”
Read the Full judgment here.
L to R: Annie Hoffman, Jenny and Mathew Werfel
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As 2020 draws near to an end, here’s a look at Turner Freeman Lawyers top 5 most-read articles for the year that was unlike any other.
5. To refer or not to refer to the Approved Medical Specialist
If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless an approved medical specialist has assessed the degree of permanent impairment.
4. NSW workplace leave entitlements and workers compensation
We receive enquiries from injured workers about whether their leave entitlements will be affected by workers compensation payments. We also receive enquiries about whether workers compensation payments will be affected by leave entitlements. These are important issues and all workers should be aware of their workplace rights. This article is specific to injured workers in New South Wales.
3. Managing costs in medical negligence claims
A medical negligence case is, simply, a claim for compensation arising out of injuries suffered in the provision of medical services by a medical practitioner, allied health professional or a hospital. Medical negligence law is both a complex and sophisticated area. Establishing negligence can be akin to finding a needle in a haystack and therefore every case must be managed with certain skill.
2. What happens in a Family Provision Application in QLD?
In Queensland 9/10 Family Provision Applications (FPAs) settle at a mediation, or shortly thereafter, rather than proceeding to a trial. This article outlines the list of the usual steps which are required to be taken in relation to an FPA.
1. Your options when you have been treated unfairly at work
A workplace should be free from harassment, discrimination and bullying, and everyone should be treated with dignity and respect. When there is an issue in the workplace, we expect our employer to listen to our concerns and address them. Unfortunately, not all employers treat employees fairly and address concerns about harassment, discrimination and bullying.
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A generous donation from Turner Freeman law firm acknowledges their unique relationship with Emeritus Professor Doug Henderson AO and continues the legacy of his extraordinary life’s work to support the victims of asbestos-related diseases.
For over 25 years Professor Doug Henderson gave evidence in most of the significant asbestos compensation trials in Australia. Such was his expertise in asbestos-related disease that in every case the party who had called him to give evidence was successful.
In the early 1980s Turner Freeman was the first law firm to engage Professor Henderson in a mesothelioma case, where diagnosis was raised as an issue for conjecture.
Sydney-based Turner Freeman Managing Director, Armando Gardiman AM specialises in asbestos litigation and acts for clients suffering from mesothelioma, asbestosis and asbestos related lung cancers.
With the evidence provided by Professor Henderson, he has run more successful mesothelioma cases than any other lawyer in Australia.
“I can still recall seeing his first report. I had never seen an expert report that was as detailed, as complex, and as thoroughly sourced as his report,” says Armando, a founding member of the Asbestos Diseases Foundation of Australia.
“Working with Professor Henderson enabled us to bring some justice to victims of asbestos-related illnesses in Australia.”
In 2018, Emeritus Professor Doug Henderson AO died at the age of 76. In his Will he left a bequest to support lung cancer and mesothelioma research at Flinders University – continuing the legacy of his incredible life’s work of asbestos-related disease research.
At Flinders University, the Professor Doug Henderson AO Research Fund supports the work of Associate Professor Sonja Klebe (PhD(Med) ’01) whose clinical trial of localised therapy for mesothelioma is the first of its kind in the world. With a special focus on lung disorders, Associate Professor Klebe worked with Professor Henderson for 18 years.
Through a $10,000 donation from Turner Freeman, Associate Professor Klebe’s research has now gained a further boost to advance this important research, which aims to improve and prolong the lives of those who suffer from mesothelioma.
Annie Hoffman, a Partner at Turner Freeman based in Adelaide says, “Turner Freeman had a very special relationship with Professor Henderson. His expert opinions assisted thousands of asbestos victims and their families, and his work on the pathogenesis of mesothelioma has helped to shape the law in Australia for the benefit of sufferers.
“It was a privilege to have known and worked with Professor Henderson, and we are honoured to support his legacy through this donation.”
Flinders University acknowledges the generous philanthropic support of Turner Freeman to the Professor Doug Henderson AO Research Fund, which will extend the research into asbestos-related disease by funding new opportunities for higher degree researchers. 
You can support those who suffer from asbestos-related disease by donating to the Professor Doug Henderson AO Research Fund. 100% of your donation will support the research into asbestos-related diseases.
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A leading plastic surgeon who promises his surgery is a “work of art” is looking at trying to stop a class action brought by hundreds of women who claim they were injured after surgery carried out at like a “fast food franchise”, a court has been told.
The move by Dr Eddy Dona comes as medical malpractice insurers, including his own, were dragged kicking and screaming into the court action brought by women who claim the Cosmetic Institute clinics gave them the same type of implants in operations that were the same regardless of their size, breast shape or individual variations.
In the Supreme Court, Justice Peter Garling threw the women a lifeline by ordering the three insurance companies can be sued along with the clinics and Dr Dona, giving the women the chance to recoup money to have their breast implant surgery corrected.
At the same time, lawyers for Dr Dona, who it is alleged was responsible for designing, implementing and supervising the company’s approach to breast augmentation surgery and also training the TCI doctors at the TCI clinics, told the court he was considering an application to stop the class action.
Dr Dona has denied any wrongdoing.
It would mean each of the over 1000 women would have to bring individual actions, their solicitor Sally Gleeson said yesterday.
Ms Gleeson is a partner in law firm Turner Freeman who are representing the women on a no-win no-fee basis in what is the country’s first class action against the booming cosmetic surgery industry.
The court gave Dr Dona, who is defending his role, until March next year to decide whether to challenge the class action, prolonging the proceedings.
Ms Gleeson said her clients would not be deterred from “fighting to the end”.
She said many of the women were already traumatised.
Two of them, Amy Rickhuss, 24, and a 42-year-old, were rushed to hospital after they had to be resuscitated on the operating table at two of the company’s clinics at Parramatta and Bondi Junction.
The other TCI clinics were at Parramatta, TCI Bondi Junction, Concord Private Hospital, Holroyd Private Hospital and at TCI Southport in Queensland.
It is alleged that the clinics were run like a “fast food franchise” with women allowed to pay off their new breasts at $5 a week.
Dr Dona, who is defending his role, was the only one of the 12 doctors who worked at the clinics who was an accredited plastic surgeon. He still works as a plastic surgeon at his Bella Vista clinic and advertises on his website that his surgery is a “WORKOFART”.
The other doctors all continue to work.
Dr Dona’s insurer, MDA National Insurance Pty Ltd, has claimed that he did not provide a “health care service” while insurers Newline and Allied World Insurance, which covered the clinics, have claimed the clinics did not behave in compliance with their insurance policies.
Article and image sourced from the Daily Telegraph, reporter JANET FIFE-YEOMANS.
 
 
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40 years ago today Armando Gardiman AM began his legal career at Turner Freeman and has put his heart and soul into the business. In the words of Anne who has been by his side for nearly 35 years, “He is a brilliant lawyer and fierce litigator, his opponents fear him but his clients love him and more importantly he is a man of integrity, high moral values and has a very good heart.” Congratulations on 40 very successful years!

Read the full speech and presentation below:
40 years ago today Armando Gardiman AM began his legal career at the offices of Turner Freeman Solicitors which were then located in the P&O Building @ 2 Castlereagh Street, Sydney. At that time we only had one office.
Armando completed his law degree at UNSW, and commenced his employment at TF on 16 December 1980.
He became a Partner on 1 July 1985 and then Managing Partner on 1 July 2009.
His legal career at TF is long and distinguished. He started practising in the area of general personal injury even though I believe he had aspirations to be an industrial relations lawyer. Throughout his career he has practised in criminal law, entertainment law and construction law.
However, very early in his career he started practising in the area of asbestos litigation where he is now recognised as a preeminent specialist in this area of law.
I am not going to bore you all with the details of his accomplishments throughout his legal career because there are way too many to mention, but there are some which shouldn’t go unmentioned :-

He ran the first product liability case against James Hardie in 1982 which enabled tens of thousands of plaintiffs to be able to claim compensation on a product liability
He established precedent for compensating the children of Wittenoom who contracted asbestos related diseases due to their exposure to asbestos
He was the author of submissions that were presented to Jeff Shaw QC, Attorney General proposing that legislation be amended to preserve general damages in circumstances where plaintiff’s die before their cases settle and the abolition of the Limitation Act in all dust diseases The legislation was passed in every State and Territory.

He also had a vision for a research institute where he prepared submissions on behalf of NSW Unions and ADFA to establish a dedicated facility for research into asbestos related diseases.  The Asbestos Diseases Research Institute was formed in early 2000.
There are countless others, but I think if you were to ask him what his greatest legal accomplishments are he would respond with “knowing’ that I have helped thousands of plaintiff s ensure that they have been able to provide a future for their families who they leave behind”.
I started working for Armando in June 1987 in the Sydney office when one day he asked me “how would you like to work at Parramatta”?  Being a Western Sydney girl born and bred, the thought of travelling half the distance was of course very appealing, so in January 1988 the Parramatta office was opened.
Many of you have heard the stories of the setup of this office but can I just say it is probably some of the most memorable moments of my time at TF, in a very good way.
Armando always had a vision for growth of the firm and I believe that it is because of him that the firm is where it is today.  We now have 19 offices around the country.  Wollongong and Newcastle opened not long after Parramatta and then our first interstate office opened in
May 1999 when we opened the Brisbane office. He, then realised we needed to be in SA, so in 2001 we opened our office in Dulwich, South Australia.
Campbelltown and Penrith have now formed part of the growth of Western Sydney and I don’t think he will be stopping there!
40 years is quite an achievement and I am sure he has blue blood running through his veins. I have had the privilege of working alongside him for nearly 35 years, Kerry for around 25 years. He has put his heart and soul into Turner Freeman and where he is in his career, he should be slowing down and enjoying his time on his farm, he is still carrying a full case load and managing the firm.
He is a brilliant lawyer and a fierce litigator, his opponents fear him but his clients love him but more importantly he is a man of integrity, high moral values and a has a very good heart.
Congratulations Armando on 40 very successful years.
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If you are or were previously a sworn police officer, you have most likely been exposed to loud noise at work. Police officers are often exposed to multiple sources of loud noise, such as from police sirens, police car radios, alarms, traffic and/or control crowd, and from the use of firearms including during regular firearm training. Often, hearing protection is impractical or limited.
In our previous blog post “Will I go deaf from that?“,[1] we discussed how exposure to noise levels greater than 85 decibels (dB) can cause industrial deafness. Firearms can create noise well over 140db,[2] and studies have shown that for specifically for police motorcyclists, the noise exposure can range from 63dB to 90dB and up to 105dB in open roads.[3]
Your entitlements
If the NSW Police is your last noisy NSW employer, you may be entitled to make a claim for industrial deafness if following an assessment with a State Insurance Regulatory Authority (SIRA; formerly WorkCover) accredited Ear, Nose and Throat Specialist (ENT), you are found to be suffering from such an injury.
You may be entitled to claim any of the following:

Hearing aids, if these are considered reasonably necessary and required due to the injury.
Permanent impairment compensation, if you are suffering from at least 6% binaural hearing loss.
Pain and suffering compensation, if you are entitled to at least 10% of the maximum amount payable for permanent impairment compensation (for hearing loss injuries deemed to occur before 1 January 2002) or if you are suffering from at least 10% whole person impairment (for hearing loss injuries deemed to occur on or after 1 January 2002).

If accepted, your entitlement to hearing aids and related reasonably necessary medical/treatment expenses will be covered by the insurer on an ongoing basis, that is, for life. You may also be entitled to further permanent impairment and pain and suffering compensation if your injury deteriorates in the future.
It is essential that you notify the NSW Police should you be exposed to loud noises resulting in industrial deafness.
The process and legal fees
Slightly different processes apply depending on if you were sworn into the Police prior to or after 1 April 1988.
Pre 88 Officers – Section 12D Claims
This refers to officers sworn into the Police prior to 1 April 1988. The workers compensation scheme applicable to these officers is covered by the Police Regulation (Superannuation) Act 1906 (NSW).
We would first arrange for you to be examined by a SIRA accredited ENT and assuming the ENT’s report is supportive of your claim, we would then formally lodge a claim against the NSW Police and their insurer. The NSW Police would then determine liability in accordance with Section 12D of the Police Regulation (Superannuation) Act 1906 (NSW) and this may involve you being assessed by an ENT on behalf of Hurt on Duty.
Should liability be accepted, your matter will then be referred to the insurer who will determine any claims for permanent impairment and pain and suffering. A further ENT examination, this time on behalf of the insurer, may be required as part of this determination process. Hearing aids and medical/treatment expenses are typically accepted following acceptance of liability.
Should liability be disputed or the insurer makes a counter offer to what was initially claimed, we may need to refer the matter to the residual jurisdiction of the District Court of NSW for resolution.
These claims are dealt with on a “no win, no fee” basis where if you are unsuccessful in obtaining compensation, you will not be charged. The cost of the consultation and report by the SIRA accredited ENT is recoverable through the insurer and you would not need to pay for same.
Post 88 Officers – Exempt worker claims
Officers sworn into the Police after 1 April 1988 are covered by the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1988 (NSW). They are considered “exempt workers” given they are exempt to the 2012 amendments which implemented stricter compensation laws for workers.
We would first arrange for you to be examined by a SIRA accredited ENT and assuming the ENT’s report is supportive of your claim, we would then formally lodge a claim against NSW Police and their insurer. The insurer will assess the claim and provide a decision with respect to liability. Hearing aids and medical/treatment expenses are typically accepted following acceptance of liability.
A claim for permanent impairment lump sum compensation can be made pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (NSW).
We will ask for the SIRA accredited ENT to quantify your claim for permanent impairment in their report. It is likely that the insurer may seek to have you assessed as well for the purposes of this claim.
Should liability be disputed or the parties cannot reach an agreement, we may then refer the matter to the Workers Compensation Commission for resolution.
Should you be required to take time off work as a result of your injury, it is essential that you seek medical advice from your treating doctor and the insurer be notified of your injury.
Your legal fees will be paid by the workers compensation insurer at the conclusion of your claim and on a “no win, no fee“ basis.
What next?
If you think you have sustained a hearing loss from your employment with NSW Police, contact us on 13 43 63 to find out more. We have a specialised team who deal with NSW Police claims and can assist you with claiming your workers compensation entitlements.
[1] Jeanne Huang, ‘Will I go deaf from that?’, Turner Freeman (Blog Post, 5 November 2020) .
[2] Michael Stewart, ‘Recreational Firearm Noise Exposure’, American Speech Language Hearing Association (Web Page) <https://www.asha.org/public/hearing/recreational-firearm-noise-exposure/>.
[3] Kyaw N Win et al, ‘Noise-Induced Hearing Loss in the Police Force’ (2015) 6(2) Safety and Health at Work 77-158, accessible at <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4476195/#:~:text=The%20results%20revealed%20that%20occupational,had%20the%20highest%20prevalence%20rate.>.
This article was co-written with Sarim Attique.
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Office closure this holiday season
Please note our Perth office will be closed from 5pm Wednesday, 23 December 2020 and will re-open on Monday, 11 January 2021. It will also be closed on all public holidays.
We would like to wish all our clients a peaceful and happy Christmas and a safe New Year! Thank you for your continued support throughout 2020.
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Our Queensland office closures this holiday season
Brisbane office
Closed on all Public Holidays.
Ipswich, Logan, Toowoomba and Gold Coast offices
Closed from 5pm Friday, 24 December, re-opening on Monday, 4 January 2021. The office is also closed on all Public Holidays.
North Lakes and Cairns offices
Closed from 5pm Wednesday, 23 December, re-opening on Monday, 4 January 2021. The office is also closed on all Public Holidays.
Sunshine Coast office
Closed from 12 noon Thursday, 24 December, re-opening on Monday, 4 January 2021. The office is also closed on all Public Holidays.
We would like to wish all our clients a peaceful and happy Christmas and a safe New Year. Thank you for your continued support throughout 2020.
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There are rules and laws that apply to when and how a deceased estate may be distributed by an executor. For example, part of section 92 of the Probate and Administration Act (NSW) 1898 (which applies to all estates in NSW) provides that the executor may distribute assets from the estate with protection as long as 6 months from the date of death has elapsed, they have advertised the prescribed form of notice of their intention to distribute the estate and 30 days from the date of the notice being advertised has expired. If the executor is on notice of any claims against the estate, including any debts or liabilities, the executor may become personally liable for those claims if the estate is distributed without satisfying them first. Sometimes, however, the circumstances of a beneficiary of the estate will necessitate the executor considering whether or not there is an immediate need for maintenance payments to be made to a beneficiary from their share of the estate before the above formal requirements can be addressed. An executor is empowered under section 92A of the Probate and Administration Act (NSW) 1898 to make payments to beneficiaries on an interim basis if a number of conditions are met. This can even be done within 30 days of the date of death. As personal liabilities can arise for an executor who seeks to make an interim distribution, it is important experienced legal advice is sought before any distributions are made. If an executor is on notice of a family provision claim against the estate, it is still possible to make a maintenance distribution, but it can become complicated. In a recent decision of the Supreme Court of NSW, Steiner v Strang [2017] NSWSC 132 a beneficiary of the estate sought an award of interim provision from the estate, or in the alternative, an interim distribution from the estate. The application was made on an interlocutory basis which means it was made before a final hearing of the matter. The beneficiary was also making a family provision claim on the estate which is why the option of pursuing provision or distribution was available to him. Unfortunately, the estate has been embroiled in litigation that is not yet resolved despite the deceased’s death occurring in October 2011. Given the estate had liabilities and the litigation involving the estate remains unresolved, the Court did not grant the beneficiary any further funds by way of provision or distribution. Whilst the Court did consider the beneficiary’s financial circumstances and agreed that he was ill, unable to work, in debt and facing foreclosure on his home, the judge was not persuaded the applicant would be successful in his family provision claim for further provision. The judge also determined that the executors, acting conservatively and prudently, could not part with the sum of money being sought by the beneficiary as to do so would be unsafe for the estate. The beneficiary was also unable to provide sufficient security to the estate in the event any sums were required to be paid back at a later date. The role of an executor is not always an easy one. It is important to remember that in certain situations the desire to help a family member or beneficiary should always be considered carefully in light of all of the facts and circumstances that affect the estate. In some situations an interim distribution can be made, but the process should be handled carefully and with the benefit of legal advice. Sometimes, tough decisions need to be made in order to avoid further problems and liabilities arising.
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Work capacity is your capacity to return to work as certified by your nominated General Practitioner in suitable employment after your injury sustained whilst at work. Work capacity, need not be your pre-injury employment and duties.
If you have been in receipt of weekly payments from the insurer whilst on workers compensation and have received a notice regarding a work capacity decision, it might be valuable to contact Turner Freeman Lawyers and recognise your rights and entitlements under the Workers Compensation Act 1987 and how lawyers at Turner Freeman can overturn your decisions.
Insurers assess capacity throughout the life of the claim where they are able to evaluate your capacity by way of gathering and reviewing information about your capacity and ability to earn in order to determine your weekly payments entitlements under the Workers Compensation Act.
What is a work capacity decision?
Work capacity decision under section 43 of Workers Compensation Act 1987, allows insurers to determine the following:

Decision about a workers current work capacity;
Decision regarding your suitable employment;
Decision regarding the amount an injured worker is able to earn in suitable employment;
Decision regarding the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
Decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
Any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any of the above decisions.

These decisions in its totality determine your ongoing weekly payments entitlements or any changes to the amount of weekly payments particularly whether you have capacity and suitable employment so that your weekly payments either decrease or cease.
Should this notice be forthcoming, an insurer must provide you three (3) months’ notice before the decision is implemented. The insurer must not discontinue payments or reduce the amount as per Section 80 of the Workplace Injury Management and Workers Compensation Act 1998.
Effect of the decision on your weekly payments:
Once you have been provided a work capacity decision, the effects of the decision will not occur until the end of the notice period of 3 months plus a further 7 working days for delivery by post as required by Section 76 of the Interpretation Act 1987. This will provide you with the opportunity to seek a review of the decision before it takes effect.
Should a review at the workers compensation not be made within the effect of the notice period will bring weekly payments to an end or either be reduced. This is why it is crucial to seek legal advice once you are provided notice so that your lawyer under section 82 of Workplace Injury Management and Workers Compensation Act 1998 will allow no regard to be had to any period of notice in respect of any discontinuation or reduction before the date on which you are notified of the review decision.
Effect of decision on medical or related treatment expenses:
The decision for your work capacity made will entitle you to a further two (2) years of medical or related treatment from the date your weekly payments come to an end under section 59A of the Workers Compensation Act 1987.
Should you become entitled to weekly payments again after this period, you may be entitled to medical or related treatment again during any period weekly payments are paid under section 59A(3) of the Workers Compensation Act 1987.
Review
If you have been provided a notice from the insurer that either that you are able to undergo suitable employment or have some form of work capacity, you should contact Turner Freeman lawyers.
Lawyers at Turner freeman can review your decision by the following process:
1. Requesting an internal review with the insurer.
An internal review form is to be completed so that the insurer may consider further information and provide a decision within 14 days under s287A of the Workplace Injury Management Workers Compensation Act 1998.
2. Review your Work capacity decision at the Workers Compensation Commission.
The workers compensation commission is an independent tribunal accessible to all injured parties that help facilitate a resolution in regards to the dispute. It is important to note, that a review by the workers compensation will allow a “stay” on the effect of the work capacity decision made by the insurer on your weekly payments as long as the application to the commission is made before the effect of the notice.
This means, your weekly payments will continue until a final decision at the workers compensation is made despite the insurer stating the weekly payments will come to an end.
Evidence:
When seeking an internal review and review at the commission, the appropriate evidence that needs to be provided to the insurer which includes independent medical evidence, work cover certificates and or vocational assessment along with any information that is relevant to overturn the insurer’s decision.
Contact Turner Freeman Lawyers for legal advice
You may lodge a dispute to challenge an insurer’s decision with the assistance of specialised lawyers at Turner Freeman who are able to lodge a review of your decision at the Workers Compensation Commission under section 44 of the Workers Compensation Act 1987.
It is important to contact our personal injury lawyers at Turner Freeman before the date of the decision takes effect, so that there will be no change to your weekly payment until the workers compensation commission makes its decision.
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Our NSW Christmas and New Year office closures
Sydney, Parramatta, Newcastle, Campbelltown & Toronto Offices
Closed from 5:00pm, Wednesday 23 December 2020, reopening on Monday, 4 January 2021
Penrith, Wollongong, Windsor and Gloucester Offices
Closed from 5:00pm, Wednesday 23 December 2020, reopening on Monday, 11 January 2021
We would like to wish all our clients a peaceful and happy Christmas and a safe New Year! Thank you for your continued support throughout 2020.
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South Australian office closures this holiday season
Please note our Adelaide and Whyalla offices will be closed from 5pm Wednesday, 23 December 2020 and will re-open on Monday, 4 January 2021. It will also be closed on all public holidays.
We would like to wish all our clients a peaceful and happy Christmas and a safe New Year! Thank you for your continued support throughout 2020.
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If you have worked in a coal mine, you know that a coal mine is typically very noisy. Mining machinery and processes can generate a significant amount of noise, and hearing protection can only do so much.
In 2015, Coal Services found that 90.7% of worker’s that received a periodic medical said they were regularly exposed to noise.[1] If you have been exposed to noise while working in a coal mine, you may be entitled to make a claim for industrial deafness.
A claim must be made against your last ‘noisy’ employer. Whether or not you are considered to be a ‘coal miner’ under workers compensation laws depends on whether you worked ‘in or about a coal mine’ whilst employed by your last noisy employer. This means, for example, if your last ‘noisy’ employer was in a different industry (and so you did not work ‘in or about a coal mine’) you will not be considered a coal miner, even if you have otherwise worked in coal mines for your whole career. If this situation applies to you, see our previous blog post “I think I have work-related hearing loss – what now?”.[2]
It is important to determine who your last noisy employer is and whether you are a coal miner, as different rules apply to different types of workers. The purpose of this blog is to highlight those differences. If you are unsure as to whether you would be considered a coal miner under the NSW workers compensation scheme, speak to one of our experienced lawyers today. You can contact us on 13 43 63.
The threshold for compensation
For coalminers, the threshold to receive lump sum compensation is 6% binaural hearing loss attributable to work. This differs from the 20.5% binaural hearing loss threshold that applies to most other workers in NSW who are not coalminers.
The process
In order to determine whether your level of hearing loss meets the 6% threshold, you must be assessed by a Medical Panel. A Medical Panel is a panel of medical experts appointed by the Residual Jurisdiction of the District Court of NSW to provide a medical assessment. In industrial deafness claims, you will be assessed by a panel of Ear, Nose and Throat specialists who will conduct a hearing assessment to determine your level of hearing loss. After your assessment, the Medical Panel will issue a Certificate with their assessment of your hearing loss.
If you are assessed by the Medical Panel to have less than 6% noise-induced binaural hearing loss, you will not be entitled to lump sum compensation. If you are assessed to have 6% binaural hearing loss or more, you will be entitled to make a claim for lump sum compensation based on your level of hearing loss under section 66 of the Worker’s Compensation Act 1987 (‘the Act’).
Depending on the amount you receive for your hearing loss, you may be entitled to make a further claim for your pain and suffering also.
Legal fees
Your legal fees are paid by the relevant workers compensation insurer at the conclusion of your claim. At Turner Freeman, we act for our clients on a no win, no fee basis. This means if you are unsuccessful in obtaining compensation, you will not be charged.
If you think you have sustained hearing loss from work, speak to an experienced worker’s compensation lawyer by contacting us on 13 43 63 today, to find out more.
[1] ‘Hearing Loss’, Coal Services, (Webpage).
[2] Larissa Pearson, ‘I think I have work-related hearing loss – what now?‘, Turner Freeman Lawyers (Blog Post, 17 July 2020).
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Do I have to be an executor?
You do not have to be an executor or administrator.
Even if you are named in the will and no one else is named, you can choose not to do it. If you choose not to act, then someone else will have to do it instead.
This person will be whoever else the will-maker (“testator”) named in his or her will or if there is no one else named in the will who is willing and able to act then someone who is eligible in law will need to apply to act as administrator.
If you do not wish to act as an executor, you can either renounce your role completely, meaning you are choosing not to act to as executor now or later no matter what, or you may choose to have leave reserved to you. This latter option effectively means you will be on “standby” as executor, and will only step back into that role if required.
If you choose to renounce or have leave reserved to you, then you will not have the duties and powers of an executor.
Can I appoint someone else to represent me as executor?
The appointment of an executor in a will is an important and significant decision by the testator and is not treated lightly by the Court.
An executor cannot simply choose someone else to take his or her place, however, an executor can instruct a lawyer to assist him or her with the role.
However, where an executor or a person entitled to apply as administrator resides outside South Australia, a grant may be made to that person’s attorney under a specific type of power of attorney for that executor’s benefit and until he or she obtains a grant.
There are also provisions in law to allow for persons to apply for a grant and act on behalf of people who would have been eligible to apply for a grant but for being a minor or suffering a mental or physical incapacity, as well as those who may suffer a mental or physical incapacity after having been issued a grant.
If you are named as an executor and want to discuss your options or need some help, call one of our lawyers now.
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