Nearly all institutional abuse civil claims for compensation are pursued as against an institution or other organisation. That is, a survivor’s civil claim aims to hold an institution (or other organisation) responsible for the actions of the individual that perpetrated the abuse (usually a staff member).
This is primarily because an individual perpetrator is unlikely to have assets sufficient to fulfil any judgment made against them. This may also occur for other reasons including difficulties identifying the perpetrator or finding out same is deceased.
This article will aim to provide survivors with information as to the legal principles applying to civil claims for compensation when trying to hold an institution responsible for the actions of an individual who perpetrated incidents of child sexual and/or serious physical abuse.
Vicarious liability is a legal principle by which one party (such as an institution) can be held responsible for the actions of another person (such as one of its staff members). Most commonly in injury law matters, the principles of vicarious liability apply when an injured claimant tries to hold an employer responsible for the actions of one of its employees which has resulted in their suffering an injury and financial loss.
The application of vicarious liability in institutional abuse cases in Australia is a developing legal area. Employers are not automatically held responsible for the actions of their employees when they perpetrate incidents of abuse.
The Courts have indicated a willingness to attach responsibility to an employer whose employees provide care and supervision in the context of a residential facility. However, there still remains uncertainty as to how the Courts will assess vicarious liability in the context of day facilities (such as schools without boarding facilities and youth groups/centres).
Justice Rush in the decision of Elrich v Leifer & Anor [2015], found a school could be held vicariously liable for incidents of child sexual abuse perpetrated by one of its headmistresses. It was noted that the abuse occurred in the context of an orthodox Jewish school. Further, the abuse was perpetrated by the Head of Jewish Studies. The perpetrator’s seniority coupled with the paramount importance given to religious studies in the orthodox community meant that she was held in high esteemed and considered very trustworthy. As such, the Justice Rush considered the school was vicariously liable for the headmistresses actions (when perpetrating the incidents of abuse) as the relationship ‘was invested in a high degree of power and intimacy’ which was used by the headmistress abused to perpetrate the abuse.
The case of Prince Alfred College Incorporated v ADC [2016] has provided the clearest direction as to how the Courts in Australia will assess vicarious liability in institutional abuse cases. The Prince Alfred case involved a 12 year old boarding student who had been victim to prolonged abuse by an assistant boarding housemaster in the 1960’s. The survivor’s civil case went through a number of appeals during the legal process and was eventually granted special leave to be determined by the High Court. Whilst the High Court decision also dealt with ancillary issues involving time limitations, this article will only focus on comments made with respect to vicarious liability.
Those comments were as follows:
“the appropriate enquiry is whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment”.
Ultimately the Court suggested the relevant approach is to assess each case, based on its facts and evidence, the nature of the relationship between the employee and the victim. The Court indicated that special attention needed to be given to the power and responsibility assigned to the employee in their role.
However, the Court indicated that a mere “proximity” to children which could afford an opportunity to perpetrate an incident of abuse is insufficient of itself to attract vicarious liability. The majority Justices in the Prince Alfred decision then outlined what it termed as “the relevant approach” for helping to determine whether vicarious liability should be found in institutional sexual abuse claims.
The Court considered the “relevant approach” was to:
“to consider any special role that the employer assigned the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.
It is noted that the above stated characteristics (of authority, power trust etc) may be more easily identified in residential facilities that endeavour to provide a “home like” environment. It is noted that employees in such facilities are responsible for a range of ‘intimate’, parent-like duties such as making sure children bathe, go to bed, general discipline and adherence with schooling and recreational activities.
It is noted that the imposition of quasi-parental duties (that require some degree of intimacy) have been seen by the Courts as significant in the assessment of vicarious liability in institutional abuse cases.
Further, the Courts have also taken into consideration, characteristics of employment that place an employee in a position of intimacy and power over a child arising from a parent-like or role model relationship which could enhance the risk an employee could abuse same. Accordingly, the more an employer encourages an employee to hold a position of respect and authority which a child should emulate and obey, the risk (of the power being abused) is enhanced.
The Courts have made it clear that the “relevant approach” provided in the Prince Alfred decision is general one. They indicate that same cannot provide any precise principles with which to assess vicarious liability in view of the numerous and varying circumstances in which child sexual abuse may be perpetrated.
As evident from the above, the application of vicarious liability in institutional abuse cases in Australia is far from settled, although some guidance was provided in the Prince Alfred decision. There is no doubt future cases will continue to provide clarity in this area.
Do you need help?
We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.
Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.
The post Application of Vicarious Liability in Australian Institutional Abuse Cases appeared first on Turner Freeman Lawyers.

Your divorce may affect your estate planning in unintended ways. Below are some things you should do after your divorce:
Give your divorce agreement and property settlement documents to your estate planner
Your estate lawyer will need to know the obligations you have to your ex-spouse in the event of your death and which of your assets will no longer be in your name after the divorce.
The above may affect the effectiveness of your will and the administration of your estate upon your death.
Update your Will
The divorce will revoke any gifts made to your former spouse under your will. However, the divorce will not revoke the appointment of your ex-spouse as trustee of property left on trust for your minor children. This can be a problem where you have a difficult divorce.
It is important to update your will to ensure your gifts are going to the person(s) you intend to receive them, and to name an appropriate trustee for assets gifted to your minor children in your will.
Update your Superannuation Death Nomination
Where you have nominated your ex-spouse as beneficiary under a binding or non-binding death benefit nomination, this nomination will likely be revoked upon your divorce. It will then be up to the discretion of the trustee of the Superfund to decide who and in what shares your Superfund balance goes to.
You should update your Superannuation Binding Death Nomination to ensure your superannuation fund goes to an appropriate beneficiary of your choice after your death.
Update your Power of Attorney
Your power of attorney is not automatically revoked by divorce. If you have appointed your ex-spouse your attorney, they will continue to be your attorney after your divorce and may continue to have access to and control of your assets. This is not ideal, especially if your relationship with your spouse is no longer harmonious.
You will need to speak to your estate lawyer to revoke any existing power of attorney and to appoint a new attorney.
Update your Enduring Guardian
The appointment of an enduring guardian is not automatically revoked by law when a person divorces their enduring guardian. If you have appointed your ex-spouse as your enduring guardian, they will continue to be your guardian after your divorce. That is, your ex-spouse will continue to have the authority to make health and lifestyle decisions for you after your divorce.
We recommend that you review and update your enduring guardian after divorce to ensure an appropriate person is appointed.
Get in touch with us
Contact our Wills & Estates Lawyers on 13 43 63 or via our online enquiry form to discuss your estate planning issues today.
The post 5 Things you need to do about estate planning after divorce appeared first on Turner Freeman Lawyers.

The best way to answer this question is to approach a wills and estate lawyer for advice. This is a very complicated topic, and the validity of a will can be affected by many things.
There are certain requirements as to the writing and manner of execution of a will in order for it to be valid. One such requirement is the testator being required to sign the will or have someone else sign it in his or her presence and at his or her direction.
However, the law does allow for wills to be admitted to probate as a valid will even if the required formalities are not met, in certain instances.
The validity of a will can also be affected by many other things, such as:

the capacity of the testator when making his or her will;
any undue influence placed on the testator when making his or her will;
any suspicious circumstances surrounding the making of the will;
fraud;
lack of knowledge and approval of the will by the testator;
subsequent wills, codicils or testamentary acts;
marriage or divorce, or the registration or ending of a registered relationship under the Relationships Register Act 2016 by the testator; and
destruction or damage, such as by burning or tearing, to the will.

It is also possible for parts of a will to be valid while other parts are not.
Executors should provide all relevant information to their lawyer or to the Court. At times, it will be necessary for the Court to determine the validity of a will, despite the views of any executor or other person. This should be done even if you or someone else doubt the document’s validity.
Do not dispose of these documents or testamentary dispositions, and do not mark them or damage them in any way. Please do not place or remove any clips or fasteners onto or from these documents. Just leave them in the same condition that they are in when you find them.
Contact one of our wills and estates lawyers for advice.
The post How do I know if the Will is valid appeared first on Turner Freeman Lawyers.

Written by Kerry Ward
If you are injured in a car accident but are unable to identify the driver or the vehicle at fault, you can make a claim against the Nominal Defendant. However, strict time limits apply.
At the scene of the accident

If anyone is injured, you should call 000 and call for an ambulance;
If anyone is seriously injured you should call 000 and ask for an ambulance and police. If no-one is seriously injured, then you should report the accident to police as soon as possible and preferably within 24 hours;
You should write or record as much information as you can about the vehicle at fault whilst it is fresh in your mind – make, model, body type (eg sedan, SUV), registration number, colour of the vehicle, whether the vehicle has sign-writing or any identifying features, the nature of the damage to the vehicle;
A description of the driver and passengers;
Take a photo of the vehicle at fault if you are able to do so. You should not chase after the vehicle;
Ask any witnesses as to whether they can identify the driver/vehicle at fault and ask for their description and contact details.

After the accident

You should seek medical treatment from a doctor or hospital if you have any pain or discomfort and you should report all of your injuries/symptoms to your treating doctor, no matter how minor the symptoms;
You should seek medical treatment at the earliest opportunity as delay can cause difficulties with establishing that your injuries were sustained as a result of the accident;
Seek early advice from a lawyer about making a claim and seeking assistance to arrange insurer funded treatment and rehabilitation.

Time Limits

If the vehicle at fault cannot be identified, then a Notice of Accident Claim Form must be given within 3 months after the motor vehicle accident;
If a Notice of Accident Claim Form is not given within this time period, then the obligation to give the notice continues and a reasonable excuse for the delay must be given to the Nominal Defendant;
If a motor vehicle cannot be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is statute barred from proceeding;
If you comply with the above time limits, then court proceedings must be commenced within 3 years of the date of the accident. Prior to commencing court proceedings, you must comply with the pre-court steps under the Motor Accident Insurance Act.

To request information about our available legal services, or to discuss your personal circumstances with one of our experienced lawyers, please do not hesitate to contact Turner Freeman Lawyers on 13 43 63. Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.
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From next Tuesday 30 November 2020 there will be new Power of Attorney and Advance Health Directive forms that must be used in Queensland for the documents to be valid.
The following documents will be affected:

Enduring Powers of Attorney (EPOAs) (long and short form); and
Advance Health Directives (AHDs).

Since the announcement of the new forms; we have had many clients ask if their EPOA or AHD prepared on the old forms will still be valid after 30 November 2020 and the simple answer is “Yes!”
If you have an EPOA which was made correctly prior to 30 November 2020, it will still be valid after 30 June 2020. It will not be necessary for you to make a new EPOA unless you want to make changes to the documents.
Similarly if your AHD has been made correctly prior to 30 November 2020 it will still be valid after 30 November 2020. However if your AHD appoints a person who is a service provider for a residential service where you are a resident, the AHD, after 30 November 2020, will be revoked to the extent it gives power to the service provider. If this affects your AHD you should consider making a new AHD and seeking legal advice.
The old forms need to be used until 29 November 2020. The new forms cannot be used until 30 November 2020.
The old forms will be valid as long as the principal, the person making the EPOA or AHD signs the document in front of a qualified witness prior to 30 November 2020.  It is not necessary for the Attorneys to have accepted their position to act as your Attorneys prior to 30 November 2020.
Get in touch with us
If you have any questions whatsoever or wish to discuss the preparation of an EPOA or AHD please contact Turner Freeman Lawyers Wills and Estates Department on (07) 3025 9000 for obligation free advice.
The post New Power of Attorney and Advance Health Directive forms in Queensland appeared first on Turner Freeman Lawyers.

Last week, concerns for patient and staff safety, from nurses and midwives working at Blacktown Hospital, escalated to the point where industrial action was reportedly taken by more than 150 staff members.
The escalation of concerns was subsequent to an investigation into the fifth neonatal death at Blacktown Hospital within two years and about 20 obstetricians threatening to resign.
There has been a complaint made to the NSW Health Minister which includes issues of understaffing, under resourcing and specifically a “lack of access to operating theatres for caesarean births”.
Dr Gina Pecoraro, National Association of Specialist Obstetricians and Gynaecologists President has indicated that the Blacktown Hospital fiasco is a part of an Australia-wide problem with respect to resourcing for public maternity services as a result of unaffordability of private treatment and “undervaluing women’s health services“. Dr Pecoraro also warns of the impact on rural women, as lack of demand for private treatment leads to the closure of private maternity services. This means that women will have to travel significant distances to give birth and “…you’ll start to hear about more and more people having to stop by the side of the road to have babies…”.
As medical negligence lawyers, we have heard many tragic stories from our clients including situations where a delay in delivery has led to either the death of a baby or significant injuries including cerebral palsy. We are particularly concerned about the lack of access to operating theatres for caesareans because in many cases, if a caesarean was performed in a timely manner than the injuries may well have been avoided.
If you or someone you know has received poor medical treatment at Blacktown Hospital, please call Sally Gleeson, Partner on 02 8222 3333.
If you would like to read more see the links to news articles below:

https://www.mamamia.com.au/womens-health-funding/
https://www.theguardian.com/australia-news/2020/nov/12/twenty-doctors-threaten-to-quit-over-baby-deaths-at-blacktown-hospital

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We often get enquiries from people wanting to contest or defend a will or an estate, and they become overwhelmed when we begin requesting and gathering their information and documentation for the next steps in the proceedings.
The information we need in a family provision claim and why we need it
Many people are surprised at what information is required and sometimes, reluctant to give a solicitor some of their most personal information. It understandably becomes particularly difficult if it means handing over that information to a family member they are fighting with or estranged from. What we try to explain is that the information we request is critical in supporting or defending a family provision claim.
This blog is specifically about claims against a will or an estate if you feel you have been unfairly left out or inadequately provided for, or if you are an executor/administrator defending a claim against a will or estate (family provision claims). The information required may be different in proceedings where someone is contesting the validity of a will.
The information we need for a family provision claim, and why we need it is set out below.
What we need and why we need it
In Queensland, you can contest a will or an estate if you are an eligible person and you believe you have not been adequately provided for in a will or by the estate of a deceased person.
Jenna Hutchinson’s previous blogs look at the people who may be entitled to make a claim against an estate, and the processes involved with bringing a family provision claim.
When a person brings a claim against an estate in Queensland, they are required to file an application in a court. With an applicant’s application, there must also be an affidavit supporting the claim for further provision from the estate. In the same proceedings, the executor or administrator is often also required to file an affidavit.
What is required to be included in those affidavits has been set out by the courts.
The courts look at a number of factors when considering whether a person (the applicant) has been left without adequate provision for their proper maintenance and support. These factors include:

the size of the estate and the financial position of the applicant, beneficiaries and any other eligible persons;
the standard of living to which the applicant is accustomed, and their current and future needs, and that of their dependants;
the health of the applicant and any other eligible persons, including any physical, intellectual or mental disability;
the nature and extent of the applicant’s relationship with the deceased person;
any financial and/or non-financial support which was given by the deceased person to the applicant during the deceased person’s life;
any financial and/or non-financial contributions made by the applicant to the size of the deceased person’s estate;
any statements and/or promises made by the deceased person about how they wished for their estate to be distributed on their death, including any will or codicil;
any changes in arrangements after the statements, promises, will and/or codicil were made;
any other matter that the court considers relevant.

However, none of the above factors will be conclusive. All competing claims (i.e. claims brought against the estate by other eligible applicants, and/or named beneficiaries) must be considered and weighed against all other factors.
Given the above, it is necessary when we are preparing an affidavits that we gather all relevant information from the outset, including evidence of that information (for example, bank statements, tax returns, Centrelink statements, medical reports and the like). We also often require evidence of communications between the parties and the deceased person, such as text messages, emails and call logs.
Some people are understandably reluctant to hand over some of their most personal information to a lawyer, who will be providing those details to the court and also often a family member, friend or carer of a deceased person with whom they are not on pleasant terms, and sometimes, have been estranged from for an extended period of time.
It is also important that clients don’t withhold information or documentation, are honest with us and that all information and details are provided as soon as possible. We understand that people don’t want to air their dirty laundry and share personal family secrets or disputes with a lawyer, but often when we haven’t been given the whole truth from the get-go, that truth is revealed at a later date and can be critical to the success of a claim. Moral of the story: don’t lie to your lawyer.
Once we have all the information we need, it is put together in an affidavit with all required, supporting documentation and filed in the court. It is then also necessary to serve the affidavit on all other parties involved in the proceedings or their solicitors.
It is also a requirement at the beginning of a matter that a timetable be put forward to the other parties, agreed and then filed in the court. This timetable is called a “Directions Order” and sets out specific dates for when steps in the matter must be taken.
The Directions Order will provide a date for a response to an applicant’s initial affidavit. If the person responding is putting forward a competing claim against the estate or an executor/administrator is defending the estate, they will also have to disclose the same or similar information as set out above in an affidavit.
The need for disclosure of information and documentation, honesty and transparency continues throughout the matter. We may ask for more recent bank statements, tax returns, financial statements, medical reports and the like, at any time during the proceedings.
We understand that gathering information and speaking about family issues is uncomfortable for some, particularly with a lawyer who you may have never met. It can also be difficult recalling dates and details when events happened many years ago. It is not an easy task, and we are empathetic to our clients’ positions when it comes to their personal details, family situations and their claims. We work with you to put forward your best claim and aim to get you the best result.
How we can help you
If you have any questions or concerns, or an enquiry about contesting or defending a will or an estate, we would be happy to discuss with you. Please feel free to reach out to Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.
The post Opening up to your lawyer appeared first on Turner Freeman Lawyers.

A death in the family can be devastating for all involved. Whilst dealing with the grief of the loss of this person, you may also be tasked with finalising their affairs. This is often the last thing you want to consider and knowing how to begin the process can be quite daunting.
Our Wills and Estates team understand how unfamiliar this process can be to most. We have listed below two important initial considerations when beginning the process of finalising a person’s estate.
Establish if the deceased has left a valid Will
First and foremost, it is important to establish if the deceased has left valid testamentary wishes. For some this may be a simple task, as the deceased may have already made a Will and told their executor where it is stored. However, if you are unsure whether the deceased left testamentary wishes, you will need to conduct reasonable searches for any valid or informal Wills. This can include sorting through the deceased’s paperwork (including electronic files), contacting other family members, banks and the deceased’s solicitor.
If the deceased has left a valid Will, a Grant of Probate may be required. Alternatively, if the deceased has died intestate, ie without a Will or without a valid Will, a Grant of Letters of Administration may need to be obtained. Letters of Administration can be a complex application. A person’s eligibility to apply to be an administrator is determined by the rules of intestacy.
Whether Probate or Letters of Administration are required will depend on the nature of the assets and liabilities held by the deceased at the time of their death. Therefore, the next step will be to compile a list of assets held solely and jointly by the deceased.
Investigate the assets held by the deceased
You will need to ascertain the assets and liabilities held by the deceased upon their death. Different types of assets could be held, and you may need to sort through the deceased’s private papers to obtain the necessary information. Whilst jointly held assets may not form part of the estate, you may still be required to disclose them to the Court.
Some assets and liabilities to be aware of are:

Real Property held solely or as Joint Tenants or Tenants in Common with another person;
Bank Accounts/Bank loans held either solely or jointly;
Household furniture and personal belongings (it is important to locate and keep in safe custody any specific gifts bequeathed in the deceased’s Will. For instance, military medals gifted to a child or grandchild);
Shares, investments and trusts;
Tax liabilities;
Unpaid employee entitlements;
Life insurance;
Superannuation; and
Motor vehicles, boats etc.

An inventory of property will help your solicitor determine whether a Grant of Probate or Letters of Administration is required. A form of inventory of property will also be supplied to the Supreme Court in any application to show the Court what assets may need to be administered.
Seek legal advice
Accepting the role of an executor or taking on the administration of a deceased estate is not without personal risk. Mismanagement of estate funds or distributing an estate too early are common mistakes made by executors when carrying out their responsibilities. This may expose the estate to litigation, in some instances, the executor may be held personally liable for misdirected estate funds. Obtaining experienced legal advice is important for an executor to mitigate their potential liability.
The Wills and Estates team at Turner Freeman lawyers can provide professional advice to guide you through the process of finalising a deceased estate. We can provide you with a better understanding of your role and responsibilities so that you understand what needs to happen.
If you would like assistance, please do not hesitate to contact our Wills and Estates lawyers on 13 43 63 or via our online enquiry form.
The post Finalising an estate – Where to start? appeared first on Turner Freeman Lawyers.

A Caveat is a dealing registered on the title to real property by which protection can be granted for an unregistered interest in the real property, such as a loan.
The most common form of Caveat to be registered on real property is that which prevents a dealing being registered on the land after the registration of the Caveat.
The real property is ‘locked’ or ‘frozen’ until such time as the Caveat is removed. This prevents the owner of the real property transferring ownership of the property and also prevents the registration of other parties registering other dealings such as a Mortgage or a Lease.
In order to lodge a Caveat the person lodging the Caveat (“the Caveator”) needs to show that they have a caveatable interest in the property. This requires the Caveator to have an interest in the real property, for example as the purchaser under an exchanged Contract for Sale of Land. A personal, contractual or statutory right may not be enough to provide a caveatable interest in real property. It has been held that a spouse’s claim to property in family law proceedings is not sufficient to show a caveatable interest in real property.
Section 74F (2) of the Real Property Act 1900 (NSW) allows for owner of real property to lodge a Caveat over their own property. Thereby providing the owner with a caveatable interest in situations where the Certificate of Title document has been lost or stolen or for any other reasons, the owner fears an improper dealing could be lodged on the title to the real property.
The Supreme Court has held (Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 at 288 that “any equitable interest in land is sufficient to support a Caveat, even if the Caveator does not have a registerable instrument”. This means that that if there is a document creating a caveatable interest, this document does not have to be in a format to allow registration on the title to the real property. However, this case does confirm the requirement that if there is such a document, that it create a caveatable interest.
Once registered a Caveat can be removed from the title to the real property by three ways.

The first way is for the Caveator to register a Withdrawal of Caveat. When registered this dealing will remove the Caveat from the title to the real property.
The second way is for the Caveat to lapse. This process starts when a dealing is lodged for registration on the title to the real property on which the Caveat is registered. The Department of Lands will then serve a notice on the Caveator of the intended registration. The Caveator has 21 days from the date of the notice to either allow the registration of the intended dealing or provide a reason as to why the dealing should not be registered. If this response is not received from the Caveator within the prescribed time, then the Caveat will lapse and will be removed from the title to the real property.
The third way is by an order of the Supreme Court. This can result either from an action brought by the Caveator or by the owner of the real property. Either way, it is up the Caveator to show and prove to the Court that they have a caveatable interest in the property.

Caveats can be a tricky area of law and there are penalties imposed by Section 74 of the Real Property Act 1900 (NSW) for Caveats lodged ‘without reasonable cause’. This is a brief summary only of a complex area of law. Please feel to contact our office to discuss this further.
The post Caveatable interests appeared first on Turner Freeman Lawyers.

In Australia, the Supreme Court has the power to make orders for medical treatment in relation to children, mentally ill and people without capacity.
In the recent case of Hospital v Baby M [2020] NSWSC 1481, a hospital sought orders to perform cardiac and ear nose and throat surgery on a three month old child, in circumstances where the child’s parents had not provided their consent. In this particular case, the parents of the child did end up providing their consent and therefore it was not necessary for the Court to make those orders.
However, there are examples of cases where the Court has exercised it’s parens patriae jurisdiction to authorise treatment of a child in circumstances where the child or the parents have not provided their consent.
For example, in the case of X v The Sydney Children’s Hospitals Network [2013] NSWCA 320, the Court upheld a decision to authorise a blood transfusion in relation to a 17 year-old minor who refused the transfusion on the basis of religious beliefs. The minor’s parents were supportive of his refusal as they shared the same views. However, the treatment was authorised with the Court noting that the parens patriae jurisdiction is not limited, even in circumstances where a minor has capacity to make decisions about their health.
In making such decisions the Court must consider the “best interests” of the individual or child who is the subject of the case.
Contact Turner Freeman today to arrange a consultation with one of our experienced lawyers.
The post Parens patriae: the Supreme Court as the “supreme parent” appeared first on Turner Freeman Lawyers.

If you die without a Will or if your Will is not valid, then you are said to have died ‘intestate’ and your assets will be distributed according to a legal formula set out in the Succession Act.
It is not possible to know with any certainty who would receive your estate or in what proportions as it will depend on your circumstances at the time of your death.
It will be up to your family members or close friends to take steps to administer your estate. What is involved will vary depending on what assets you owned, whether you had any debts, and your family situation.
For example, if you pass away leaving assets of significance (such as a house or a large bank account) then your next of kin will need to apply for a Grant of Letters of Administration. Letters of Administration is a court order made by the Supreme Court of New South Wales which appoints a person to be the administrator of an estate. The administrator is responsible for distributing the assets of the deceased person who died without a valid Will in accordance with the predetermined legal formula.
On the other hand, if you pass away and only leave nominal assets, then your next of kin will need to close all of your accounts and distribute the funds (if any) in accordance with the predetermined formula.
Administering the estate
Administering the estate of a deceased person who died without a will can be complicated for the following reasons:

It can be more costly to administer an estate where there is no Will.
It can take longer to administer an estate where there is no Will.
Your estate may pass to person(s) that you would not have chosen in proportions that you may not have chosen.
You may have wished for certain persons or charities to benefit from your estate but if you do not leave a Will then they will likely miss out.

There are many unintended consequences that can result from not having a Will.
At Turner Freeman, we recommend that every person has a valid and up to date Will to provide certainty and peace of mind for their family and loved ones.
Call Turner Freeman today to arrange a consultation with one of our experienced Wills & Estates lawyers.
The post What happens if I die without a Will? appeared first on Turner Freeman Lawyers.

Have you been told by your workers compensation insurer you have to attend an Independent Medical Examination? Find out what your rights are.
What is an IME?
An Independent Medical Examination (also known as an ‘IME’) is usually arranged by your workers compensation insurer or lawyer for the purpose of gaining an independent opinion regarding your injury and claim. IME’s can be asked a broad range of questions, including regarding:
Medical treatment
IME’s are often asked to comment on a whole range of treatment which may be recommended by your treatment providers; from appointments with providers such as psychologists and physiotherapists, to major surgery. A common question put to an IME is whether the treatment is reasonably necessary, which is the legal test set out in section 60 of the Workers Compensation Act 1987 (NSW).
Work capacity
It is also common for IME’s be asked to give an opinion about your work capacity, for example, whether you are capable of returning to your pre-injury role or whether you are capable of performing alternative duties and/or hours. Sometimes IME’s will liaise with your Nominated Treating Doctor, which may inform their opinion.
Liability
Often insurers will ask IME’s questions which will assist them to determine whether they are liable for your injury. For example, they may ask the IME whether your condition was caused by and/or related to your employment, as opposed to a pre-existing or unrelated condition.
Impairment
IME’s who are accredited by the State Insurance Regulatory Authority (SIRA) can also assess your permanent impairment resulting from an injury. If you meet a certain injury threshold (for most NSW workers, the threshold is 11% Whole Person Impairment or greater for physical injuries and 15% Whole Person Impairment or greater for psychological injuries) you may be entitled to lump sum compensation.
Your rights
Under workers compensation legislation, you are required to attend IMEs as requested by your employer or insurer. However, most insurers in NSW are required to comply with the Workers Compensation Guidelines when arranging an IME. Part 7 sets out mandatory obligations of insurers, including:

All referrals for IMEs must be arranged at reasonable times and dates, with adequate notification given to you;
You must be advised in writing at least 10 working days before the examination takes place;
The insurer must advise you in writing of the reason for the examination, the name, specialty and qualifications of the IME, and the likely duration of the appointment, among other things;
The location is to be accessible to you and within any travel restrictions set by your Nominated Treating Doctor;
If you have any special requirements relating to gender, culture or language, these are to be identified and accommodated;
The insurer must meet any reasonable costs associated with travelling to the IME appointment, including any loss of wages, travel and accommodation costs.

What to do if required to attend an IME
If your insurer has arranged an IME, you should seek legal advice to ensure the insurer has complied with its obligations and to discuss the potential impacts on your claim. For advice regarding your workers compensation rights and entitlements, contact our expert workplace lawyers today on 13 43 46.
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The tragic events of October 2016 have returned to news attention with the operators of Gold Coast theme park Dreamworld handed a $3.6 million fine by the Southport Magistrates Court recently.
As many would recall, Cindy Low, Kate Goodchild, her brother Luke Dorsett and his partner Roozi Araghi were killed in October 2016 when the popular family ride malfunctioned, throwing the occupants from the raft and trapping them underneath the mechanical conveyor belt.
There has been a number of legal repercussions in response to the tragedy over the last four years, which I thought it might be insightful to summarise.
Coronial Inquest
Many would be aware of the coronial inquest into the tragedy and the findings of Queensland Coroner James McDougall have been of great assistance generally, but also with respect to informing some of the other legal proceedings.
He reported a litany of failings by Dreamworld’s owner, Ardent Leisure, including shoddy record keeping, ad hoc inspections of rides and poor maintenance. McDougall also wrote, “There is no evidence Dreamworld ever conducted a proper risk assessment in the thirty years of operation of the ride” and that the safety systems in place were “frighteningly unsophisticated”.
In response, Ardent Leisure chairperson Dr Gary Weiss and theme parks division chief executive John Osborne said there had been “considerable change” at Dreamworld, as had been acknowledged by the coroner’s report.
Queensland Work Health and Safety Investigation & Prosecution
The Queensland’s Work Health and Safety Prosecutor filed three charges against the company on July 21. This was following the handing down of the coroner’s findings into the tragedy five months earlier[1].
Ardent Leisure was sentenced in Southport Magistrate’s Court in late September 2020, after a hearing where families of the four victims told of the grief they continued to experience because of the shocking deaths.[2] The three charges each carried a maximum penalty of $1.5 million.
The court heard it would have cost just $3,000 for safety measures to minimise the risk of pump failure, which ultimately caused the tragedy.
It was also revealed in court that there were several ways the raft could have been stopped, including an emergency stop button, of which there was none in place for the conveyor on the main panel.
The daughter of a victim, Ebony Turner, travelled from Canberra to deliver an emotional recount. She was 12 when she witnessed the deadly accident.
Claims for the victims and their families
As Dreamworld has been found to have failed in their duty of care towards the unfortunate victims of this tragedy in terms of the coronial inquest findings and having breached Workplace Health & Safety laws, their families have strong entitlements to compensation. These claims are in the form of what are known as a ‘dependency claim’ and/or a claim for any psychological injury suffered as a result of the deaths of their loved ones. Anyone who witnessed this tragic event and suffered a psychological injury would likely also have an entitlement to bring a claim for compensation.
As Dreamworld has been found to have failed in their duty of care towards the unfortunate victims of this tragedy in terms of the coronial inquest findings and having breached Workplace Health & Safety laws, their families have strong entitlements to compensation. These claims are in the form of what are known as a ‘dependency claim’ and/or a claim for any psychological injury suffered as a result of the deaths of their loved ones. Anyone who witnessed this tragic event and suffered a psychological injury would likely also have had an entitlement to bring a claim for compensation.
Victims
Claims of this nature allow the immediate family of victims to recover,

any financial benefits that they would have received in the future from income received by their deceased parent/spouse; and
the loss of domestic care and services that their deceased parent/spouse would have provided to them in the future

if they had not been tragically killed.
The families are also entitled to claim any funeral expenses and other expenses associated with relocating their loved ones back home.
Witnesses
In addition to the above claims, staff, witnesses to the event, and first responders who have suffered psychological injuries (i.e. Post Traumatic Stress Disorder) as a result of witnessing or learning of the Dreamworld tragedy also likely had entitlements. When this happens, then those family members, staff and witnesses have a right to bring a compensation claim for the pain and suffering and other losses (particularly financial losses) they have suffered and will suffer in the future as a result of their psychological injury.
These claims often result in settlements or court awards totalling hundreds of thousands of dollars in compensation.
As expected, Ardent Leisure did indeed face a slew of compensation claims following the tragedy, including a class action by shareholders and individual claims by witnesses, staff, and emergency first responders.
In a statement issued after the fine imposed by the Southport Magistrate’s Court, Ardent Leisure chairman Gary Weiss and CEO John Osborne said “Ardent accepts responsibility for this tragedy without qualification or reservation,” “The majority of families, first responders and others impacted by the tragedy have received compensation.”
“The Ardent board has, and continues to, press for the expeditious resolution of the remaining claims noting that, in the case of compensation for minors, the court’s approval is required before compensation can be finalised.
The family of Ebony Turner, who is the teenage daughter of Kate Goodchild who travelled to the Southport Magistrates Court to give her recount in the WH&S prosecution, claim the company, is putting “dollars before safety” as her individual claim for compensation remains ongoing. Ebony was also on the raft, but was physically uninjured. Ardent Leisure has reportedly requested another trauma assessment in her claim.
Ebony’s claim is one of the unresolved matters, despite the company settling lawsuits with the rest of her family. Ebony (now 16 years of age) is currently still a minor, which means her claim will require an additional court process to approve any settlement and extend the time her claim takes to resolve in any event. However, the sticking point for her case according to her family is an ongoing disagreement about the level of trauma she suffered because of witnessing the deaths of her mother and uncles. Ardent Leisure’s lawyers insist their doctors should again assess her, but Ebony’s family say the constant evaluations and delay in settling the case is only prolonging her pain.
We certainly see the significant toll numerous medical reviews, and the weight of the legal process in general, has on clients on a daily basis in our practice and we sincerely hope to read of the resolution of Ebony’s claim in the near future.
No amount of legal redress, of course, can bring back loved ones. We can only hope companies and business have taken this tragedy as a stark warning and the often-simple safety precautions available to operators are taken and consistently reviewed to ensure we do not see and event like this occur again.[3]
To request information about our available legal services, or to discuss your personal circumstances with one of our compensation lawyers, please do not hesitate to contact the Turner Freeman Lawyers Team on 13 43 63.
[1] https://theconversation.com/after-damning-report-into-dreamworld-tragedy-who-can-be-held-accountable-under-the-law-132364
[1] https://www.news.com.au/national/queensland/courts-law/ardent-leisure-facing-multimillion-dollar-fine-for-2016-dreamworld-tragedy-that-killed-four/news-story/47f80b48864df0676a85578127c38b41
[2] Ibid.
[3] https://theconversation.com/after-damning-report-into-dreamworld-tragedy-who-can-be-held-accountable-under-the-law-132364
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A new dust diseases register designed to track incidences of silicosis among workers in NSW is set to be introduced.
What is silicosis?
Silicosis is a preventable occupational lung disease occurring as a result of exposure to silica dust. A recent epidemic of silicosis cases has arisen in the construction industry as a result of unsafe work practices involving engineered stone bench tops.
Crystalline silica is found in sandstone and other natural stone. It is used to make a variety of products, including artificial stones used to fabricate kitchen and bathroom benchtops. When workers drill, polish, saw or grind products that contain silica, dust particles are generated that are small enough to lodge deep in the lungs and cause illness or disease including silicosis.
The new register has been established as part of the Work Health & Safety Amendment (Information Exchange) Bill 2020, which passed the NSW Parliament on 22 October 2020 and is expected to shortly come into force.
Any incidences of silicosis must now be reported to SafeWork NSW, which is the body responsible for maintaining the register.
It is important to note that, if you have been diagnosed with silicosis, you may be entitled to significant compensation.
Turner Freeman has the largest dust diseases litigation team in Australia and can investigate the source of your silica exposure if you are diagnosed with silicosis or another dust-related condition. Contact us today to speak with our experienced lawyers to find out more about the compensation claim process.
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Although the process surrounding a claim for Noise Induced Hearing Loss appears to be straight forward, the strict processes of WorkCover WA can often be confusing and overwhelming for a worker.
In Western Australia a claim for Noise Induced Hearing Loss is not like that of a usual workers’ compensation claim. Noise Induced Hearing Loss is a gradual onset of hearing loss caused by high levels of noise exposure as opposed to a sudden loss of hearing due to a workplace accident such as an explosion or head trauma.
A worker will only be submitted to regular testing by an employer if they are employed in a prescribed noisy workplace. A workplace is considered to be noisy only when the worker receives or is likely to receive a personal noise dose of 90dB(A) or above during an eight hour shift. [1] This level of sound matches that of an idling heavy truck at a distance of one metre.
However, if a worker is exposed to noise levels above a peak exposure of 140dB(lin) at any time they will also require testing. 140dB(lin) is approximately equal to the peak noise from a mid to high calibre firearm at the user’s ear. [2]
It is important that if a worker feels they are employed in a noisy environment, they request in writing that their employer submit them to a hearing test. A WorkCover WA approved audiologist must complete this testing and calibrated equipment must also be used. If this process is not followed, any testing completed will not be registered with WorkCover WA and therefore cannot be used for the purpose of a workers’ compensation claim for Noise Induced Hearing Loss.
Importantly, a worker only has 3 months from the date they leave or retire from their employment to request an exit hearing test if their employer has not already done so.
If as a worker you join a noisy industry or work environment it is extremely important to ensure you undergo a WorkCover WA approved baseline hearing assessment when you commence your employment. Without a baseline assessment, you may compromise your entitlements.
Get in touch with us
If you work in a noisy environment or believe your hearing has deteriorated due to your work, contact our industrial deafness lawyers for an obligation free discussion.
Reference:
A guide to Noise Induced Hearing Loss, WorkCover WA.
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What if there is no executor named or able to act?
The law specifies who is able to step in and take on the role of administrator when there is no executor willing or able to act.
This may be as a result of the deceased dying without a will, the will containing no appointment of an executor, or all of the executors named in the will having died, lost their mental capacity or being otherwise unable or unwilling to take on the role.
The term ‘administrator’ is the name used for this person who becomes the legal personal representative of an estate.
An administrator has a very similar role to an executor.
The person or persons who are entitled to act as administrator is set out in the Probate Rules 2015. In most instances, the person who is entitled to inherit the largest portion of the estate, whether according to the will or by the laws of intestacy, is able to act as administrator.
In some instances, the Attorney General, Crown, creditors of the deceased or personal representatives of other persons entitled to act, may be able to apply for the role of administrator.
At times, grants may be issued to an attorney of a person entitled to a grant if the person so entitled resides outside South Australia. Further grants may be issued to parents or a guardian of a minor, or to persons appointed as administrators or managers of a person who would be entitled to the grant but is incapable due to mental or physical incapacity.
What if the deceased person did not leave a will?
If a person dies without a valid will, he or she is said to have died “intestate”.
That person’s estate is then distributed in accordance with the law of intestacy (ie. the law that applies when a person dies without a valid will). This is set out in Part 3A of the Administration and Probate Act 1919.
If there is no will then that means no executor has been named as the deceased person’s legal personal representative. Instead, someone else will have to take on a similar role known as ‘administrator’.
The person who can take on the role of administrator is set out in rule 34 of the Probate Rules 2015.
Who is the administrator if the deceased person had no will?
Rule 34 of the Probate Rules 2015, sets out an order of priority as to who is entitled to a grant of letters of administration if a person died without a will.
The order is as follows:

the spouse or domestic partner of the deceased person, provided he or she survived the deceased person by 28 days;
a child of the deceased person, or a child of a deceased child of the deceased person;
a parent of the deceased person;
a sibling of the deceased person, or a child of a deceased sibling of the deceased person;
a grandparent of the deceased person;
an aunt or uncle of the deceased person, or any child of any deceased aunt or uncle of the deceased person.

If there is no person alive to inherit the deceased person’s estate, then the Attorney-General is entitled to administer the estate on behalf of the Crown.
If none of the above are able to act, then a creditor of the deceased person may apply to administer the estate.
Furthermore, a personal representative of any of the above persons (other than the Attorney-General) can also apply for a grant. However, the Court prefers administration to be granted to a living person instead of a personal representative of a deceased person, to a person not under a disability over a person under a disability, and to the child of a deceased person (or a child of a deceased child of the deceased person) over the personal representative of a spouse or domestic partner.
Get in touch with our estate lawyers today to see how we can help you.
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Background
The Plaintiff, Mr Briggs was injured in a motor vehicle accident on 22 May 2018. The Motor Accident Injuries Act 2017 therefore applied to his claim.
NRMA insurance alleged the Plaintiff suffered a minor injury. In disputing this decision, the Plaintiff asserted that he suffered an annular tear at L4/5, taking his claim outside the minor injury classification.
The dispute proceeded to the Dispute Resolution Service and ultimately to the Review Panel. The Review Panel determined that, while the Plaintiff did have an annular tear at L4/5, this was not causally related to the accident.
In arriving at this conclusion, the Review Panel placed reliance on a Spine Journal Article. The article contained medical jargon external to the Motor Accident Injury Guidelines.
The Plaintiff sought a judicial review of this decision. The grounds of review included a denial of procedural fairness in relying on the Spine Journal Article without notice to the Plaintiff. This ground succeeded.
The Review Panel’s decision was quashed, with the matter remitted to the State Insurance Regulatory Authority to be determined according to law.
Implications
Solicitors should pay close attention to material relied on by medical assessors.
If it is extraneous to the Act and Guidelines, this may provide a foundation for judicial review.
This case also highlights the primacy of medical imaging in “minor injury” disputes.
Depending on the interpretation of the Medical Assessor, injured Plaintiffs can face an “uphill battle” in establishing that abnormalities like a disc protrusion in the spine or a tear in the shoulder relate to an accident.
The post Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 appeared first on Turner Freeman Lawyers.

Annual Ecumenical Service
On Friday, 27 November 2020 from 11 am, the annual Ecumenical Service will be held at The Cathedral of St Stephen on Elizabeth Street in Brisbane hosted by the Asbestos Disease Support Society (ADSS). This is an important event for those who suffer from asbestos disease, those who have passed away from asbestos disease and their family, carers and friends are acknowledged and remembered.
We would urge you to attend this event supporting those with asbestos disease in Queensland and throughout Australia.
Please RSVP to 1800 776 412 by Friday 20 November 2020. You can download the invitation below or contact us through our online enquiry form and we will gladly post an invitation out to you.

 
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The Turner Freeman Medical Negligence team is saddened to hear that a number of people may have potentially lost their last opportunity to have children due to viable embryos being allegedly unnecessarily discarded by Monash IVF.

It is alleged that the type of genetic testing utilised by Monash IVF was deficient and resulted in viable or potentially viable embryos being identified as abnormal and subsequently discarded.

As a result of the alleged negligence, patients have suffered psychological injuries and significant financial losses.
If you underwent fertility treatment at Monash IVF and would like advice specific to your circumstances, please contact Sally Gleeson, Partner on 02 8222 3333.
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Being diagnosed with mesothelioma, the asbestos related lung cancer, is overwhelming particularly when you do not know where you were exposed to asbestos.  Unlike other asbestos related diseases there is only 1 known cause of mesothelioma and that is asbestos exposure.
When people think of asbestos they often think of Wittenoom (the blue asbestos mine owned and operated by Australian Blue Asbestos Pty Limited) or fences and roofs made from Super Six (the corrugated asbestos sheet manufactured by James Hardie & Coy Pty Limited). However, asbestos was used in countless products until the mid 1980s/early 1990s. Asbestos was used in insulation materials, floor tiles, brake linings, gaskets, fire doors, fire retardant curtains (such as at the cinema), fire proof suits, aprons, gloves, electrical switchboards, electrical wiring, pot plants, stove covers and even dental tape. With so many products containing asbestos you can see why it can often be hard, at first instance, to identify where and when you were exposed to asbestos. Making things more complicated is the fact that sometimes a person’s exposure did not arise as a result of them handling a specific product but instead as a result of their spouse or a member of their family handling the product.
As expert asbestos lawyers our job is to help you identify where and when you were exposed to asbestos. Without identifying an exposure to asbestos it is impossible to bring a common law claim or sue for compensation in court. While suing someone will never give you back your health it can result in a compensation payment worth hundreds of thousands of dollars meaning you can afford the type care you want and can ensure your family are financially secure in the longer term. It is for this reason we spend significant time with our clients sifting through their occupational and non-occupational histories to determine just how they were exposed to asbestos. In most cases we are able to identify how a person was exposed to asbestos and bring a common law claim for compensation.
Get in touch with us
Given the significant entitlements available to persons who are suffering from mesothelioma it is important that you seek legal advice even if you cannot identify an asbestos exposure as we will work with you to find a viable exposure.
Call our expert asbestos lawyers now for an obligation free discussion to assess how and where you were exposed to asbestos.
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