How to get around an employer’s defence in a work psychological injury claim? What is considered reasonable administrative action?
Background
Elmiski was employed by Dnata Airport Services Pty Limited as a baggage handler and supervisor. He suffered a psychological injury on 25 June 2019 as a result of dismissal from his employment. There was no dispute that the injury arose as a result of the dismissal. The only issue that needed to be determined was whether the injury resulted from reasonable action taken by the employer with respect to that dismissal.
If the employer was able to argue that the action leading up to the dismissal was reasonable then the employer would not have to pay any compensation despite having caused the injury.
Circumstances surrounding the dismissal
Another baggage handler employed by Dnata, was arrested on 6 March 2019 and charged with offences relating to the importation of 32 kg of methamphetamine on an inbound flight. The baggage handler had contacted his supervisor, Mr Elmiski, and changed his shift to be at work that day.
A month later Mr Elmiski was issued a letter regarding the investigation that was being conducted and then another month later was issued a letter from his employer with respect to allegations of breach of process regarding shift swaps. Shortly after Mr Elmiski was issued with a show cause letter from his employer and was later dismissed from his employment for roster irregularities.
Because of the process, Mr Elmiski suffered a psychological injury.
Mr Elmiski submitted that the three reasons given in the termination letter all related to roster irregularities and could not form the basis for dismissal. At best they should have given rise to a warning and corrective action to assist with future compliance with procedures. While there was no evidence that Mr Elmiski was involved in any criminal conduct, the focus of the disciplinary process was an endeavour to link Mr Elmiski with the conduct of Mr Tolutau. In doing so, it made him a scapegoat.
Was it reasonable conduct from Dnata?
The Arbitrator , when deciding whether Dnata’s conduct was reasonable to dismiss Mr Elmiski from his employment, considered the evidence and various witness statements from Dnata. The Arbitrator formed the view that she was unable to determine the issue of reasonableness of Dnata’s conduct in terminating Mr Elmiski’s employment. Consequently, this led to the Arbitrator determining that Dnata had not satisfied its requirement to prove that Mr Elmiski’s injury was caused by reasonable action with respect to dismissal.
Arbitrator McDonald went on to suggest that if there was a “written document which set out the investigation Dnata undertook, it might provide an explanation for the protracted nature of the process and its outcome. In the absence of an explanation, I have formed the view that the disciplinary process was unreasonably drawn out”.
As a result, the Arbitrator determined that Mr Elmiski’s injury was caused by unreasonable action with respect to his dismissal and ordered the employer to pay him weekly compensation payments on an ongoing basis.
What this means for Section 11A defences
This case has emphasised the fact that the Section 11A defence often used by insurers and employers is quite a high threshold to satisfy. The onus is on the employer to prove that their actions are reasonable and as illustrated in this case, that test will require the employer to produce detailed evidence and a clear process that was undertaken to prove that their actions were in fact reasonable.
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This year, for the Stroke Foundation’s National Stroke Week, we are again celebrating F.A.S.T. Heroes. These are people who have spotted the signs of stroke and called an ambulance straight away, potentially saving a life.  The diagnosis and treatment of stroke is time-critical and every minute counts. A delay in treatment can have a considerable difference on recovery. For more information about the Stroke Foundation and its important work, follow the link to the Stroke Foundation website.
You can revisit our earlier blog in relation to strokes and the F.A.S.T. test here.
A recent case considered by the Queensland Court of Appeal shows how important expert evidence is to proving each element of medical negligence.
Background
The plaintiff in the case was 84 years old and had suffered a number of strokes in the past. On the evening of 29 July 2018, her brother noticed she was exhibiting signs of a stroke. He took her to hospital where she was admitted and seen by a registrar. He diagnosed her as suffering a stroke and arranged for her to be attended by the hospital’s stroke specialist Dr Durairaj, one of the defendants to the claim.
Dr Durairaj administered thrombolysis, a substance designed to dissolve stroke-causing blood clots.  Thrombolysis is sometimes referred to as a “clot busting” therapy. The plaintiff was then administered a further drug called prothrombinex to counteract the anti-coagulation properties of thrombolysis.  Prothrombinex is designed to prevent further bleeding. The evidence suggested that after the administration of thrombolysis the plaintiff improved but then suffered a decline in her condition and suffered further strokes prior to the administration of prothrombinex.
The plaintiff’s case was that the administration of thrombolysis and/or prothrombinex was negligent and that the administration of one or both of the drugs caused the plaintiff to suffer further strokes. The plaintiff argued that if she had not received the drug treatments, she would not have suffered further strokes. The plaintiff also argued that the defendants failed to warn her as to the risks of the medical treatment that was administered to her.
Expert Evidence
The plaintiff did not lead any expert or lay-witness evidence in the matter.
The defendant hospital and specialist served evidence to the effect that it was appropriate to administer thrombolysis, thrombolysis did not cause the further strokes and the infusion of prothrombinex did not cause damage to the plaintiff. The defendants alleged that they had adequately explained the risks of the treatment to the plaintiff and obtained her informed consent.
The Court accepted that the defendants had appropriately warned the plaintiff of the risks of treatment and obtained the necessary consent from her. The plaintiff failed at first instance before the Supreme Court of Queensland.
Appeal
On appeal, the plaintiff (then the appellant) argued that there were contraindications to the administration of thrombolysis, the defendants (then the respondents) had not appropriately explained the risks of the treatment, the administration of thrombolysis caused bleeding which caused the plaintiff’s further strokes, the infusion of prothrombinex caused the further strokes.
The plaintiff had relied only upon her own research to prosecute the case. The Court found against the plaintiff on all appeal issues on the basis that the plaintiff had not served any evidence (either expert or lay-witness) to contraindicate that of the defendants.
This case shows the importance of obtaining expert evidence to prove each element of negligence – which is that there was a breach of duty of care which caused someone to suffer some damage or harm.  Obtaining supportive expert evidence is crucial to obtaining judgment in your favour in a medical negligence claim.
Get in touch with us
Medical negligence claims are difficult and rely upon supportive expert evidence in order to be successful. At Turner Freeman, we have specialist medical negligence lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our medical negligence lawyers are located across NSW including in our offices in Sydney, Parramatta, Wollongong, Newcastle and Toronto.
If you or someone you know has suffered as a result of medical negligence, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.
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This is the final blog of a series of four blogs about family provision applications (“FPA”) in Queensland. This blog explores who is considered as a person’s spouse in Queensland, and whether that person can bring an FPA against an estate.
If you are married or have registered your relationship, there is no doubt that, at law, you are a person’s spouse.  However, it is often not as clear cut if you are in a defacto relationship (including same sex) with a person when they die.  This is because often or not there is no registration of the relationship.
In Queensland Section 5AA (1) of the Succession Act 1981 (Qld) states that, generally, a person’s spouse is that person’s:

husband or wife;
defacto partner, as defined in the Acts Interpretation Act 1954 (Qld), section 32 DA; or
civil partner as defined in the Acts Interpretation Act, schedule 1.

However 5AA (2) clarifies that a person is a spouse of a deceased person only if, on the deceased person’s death:

The person was the deceased’s husband or wife; or
The following applied to the person-

The person was the deceased’s de facto partner as defined in the Acts Interpretation Act, section 32 DA;
The person and the deceased lived together as a couple on a genuine domestic basis within the meaning of the Acts Interpretation Act for a continuous period of 2 years ending on the deceased’s death; or
The person was the deceased’s civil partner, as defined in the Acts Interpretation Act, schedule 1.
For Part 4 of the Succession Act which deals with FPAs, the person was-

A person identified above in (i), (ii) and (iii); or
the deceased’s dependant former husband or wife or civil partner.

Section 5AA (4) defines a “dependent former husband or wife or civil partner”, of a deceased person as a person who:

was divorced by or from the deceased at any time or was in a civil partnership with the deceased that was terminated under the Civil Partnerships Act 2011, section 19;
had not remarried or entered into a civil partnership with another person before the deceased’s death; and 
was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.

Schedule 1 of the Acts Interpretation Act defines a civil partner as a person who is a party to a civil partnership.
The Civil Partnerships Act 2011 (Qld) defines a civil partnership as a legally recognised relationship that may be entered into by any two adults, regardless of their gender.  You may register your civil partnership/relationship with the Department of Births Deaths and Marriages.
However, when it comes to Defacto partners it is often not as clear cut. 
Section 32DA of the Acts Interpretation Act states that a “de facto partner” is a reference to one or two people who are living together as a couple on a genuine domestic basis, but who are not married to each other or related by family.
In deciding whether two persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example any following:

the nature and extent of their residence;
length of their relationship;
whether or not a sexual relationship exist or existed;
the degree of the financial dependence or interdependence or any arrangement for financial support;
their ownership, use and acquisition of property;
the degree of mutual commitment to a shared life, including the care and support of each other;
the care and support of children;
the performance of household tasks; and
the reputation and public aspects of their relationship.

No particular finding in any circumstances is regarded as necessary in deciding whether two people are living together as a couple on a genuine domestic basis.
However, two people are not necessarily regarded as living together as a couple on a genuine domestic basis only because they have a common residence.
What if we are not living together, but we have a reason?
Section 2F (4) of the Acts Interpretation Act 1901 (Cth) states that two persons are taken to be living together on a genuine domestic basis if those people are not living together on a genuine domestic basis only because of:

a temporary absence from each other; or
illness or infirmity of either or both of them.

Accordingly, if it can be proved that you had a temporary absence from living with each other or because of illness or infirmity or both, you could still be considered as the deceased person’s de facto spouse.
We are here to help
If you are unsure whether you would legally be considered as a deceased person’s spouse or wish to defend a claim brought by an alleged spouse against a deceased estate, please contact our Wills and Estates Department on (07) 3025 9000. Our Wills and Estates Team practise exclusively in this area of Law and will discuss the matter with you on an obligation free basis.
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We are delighted by the judgment handed down by Justice Le Miere this morning in the Supreme Court of Western Australia in favour of Christine Parkin, a 63 year old woman who suffers from mesothelioma, the terminal asbestos related cancer.
Ms Parkin’s claim is the first mesothelioma trial to run to judgment in Western Australia in recent years. By in large the majority of claims settle before the end of trial.
Ms Parkin’s  claim was brought against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) the manufacturer of asbestos cement sheeting her father used to construct an extension to the family home when Ms Parkin was a child in the 1970s and 1980s.
This judgment will assist all Plaintiffs by setting an appropriate award for general damages (the head of damage for pain and suffering) which is commensurate with the times but also by acknowledging the extensive gratuitous care provided to sufferers of mesothelioma by their loved ones.
Justice Le Miere in his judgement detailed Ms Parkin’s symptoms of shortness of breath, fatigue and chest pain which first appeared following a bad cold she suffered in December 2018. Ms Parkin was initially misdiagnosed with pneumonia following a chest x-ray however, several months later she continued to experience increasing breathlessness, fatigue and chest pain. This led doctors to perform a CT scan in September 2019 which showed fluid on her right lung. Ms Parkin subsequently underwent a pleural biopsy and PET scan and a diagnosis of malignant mesothelioma was confirmed on 23 October 2019.
Since her diagnosis Ms Parkin has undergone chemotherapy treatment suffering significant side effects including stomach cramps, nausea and fatigue. Ms Parkin has also self-funded treatment using chemotherapy in conjunction with an immunotherapy drug called Pembrolizumab (more commonly known as Keytruda). This combination of therapies has been the basis of the DREAM clinical research trial being headed by Professor Anna Nowak at the Sir Charles Gairdner Hospital. Justice Le Miere held that the use of Keytruda by Ms Parkin was reasonable in the circumstances and the Defendant once known as James Hardie ought to be responsible for paying the cost of this treatment. He noted while there is no cure for mesothelioma the DREAM study has shown that Keytruda in conjunction with chemotherapy has a greater capacity to reduce diseases progression than treatment with chemotherapy alone, meaning a longer life expectancy for sufferers.
Several other issues led to Ms Parkin’s matter being contentious enough to proceed to trial including the value of general damages (how much is a person’s pain and suffering worth), whether a mass in Ms Parkin’s abdomen was a metastases of her mesothelioma or a second unrelated medical condition and whether the level of care she was receiving from her sister, Margaret was reasonable and necessary. On these issues His Honour Justice Le Miere found in favour of the Plaintiff in that the mass in Ms Parkin’s stomach which caused fluid to build up in her abdominal cavity was related to her mesothelioma and the level of care provided by her sister Margaret was reasonable as was the use of SilverChain care rates.
Most importantly for all Western Australian based mesothelioma sufferers was the Honourable Justice Le Miere’s award for general damages (pain and suffering) in the sum of $360,000. This judgment is a significant increase from the previous judgment on general damages in the matter of Lowes v Amaca Pty Limited in which the Plaintiff who was in his early 40s was awarded $250,000.
The judgement of Justice Le Miere this morning brings Western Australia’s compensation awards for general damages  in line with other states of Australia including New South Wales where the Dust Diseases Tribunal regularly awards general damages in the sum of $350,000 to $400,000.
We are pleased for Ms Parkin. This is a fantastic win for the Plaintiff.
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After the recommendations of the Royal Commission (into Institutional Responses to Child Sexual Abuse), each Australian state enacted legislative changes allowing survivors to pursue civil claims for compensation (for incidents of child sexual abuse) outside of the requisite time frames specified for injury law claims.
Whilst these changes have enabled many survivors to successfully seek compensation for the harm they have suffered, there still remains risk that their claims could be “Stayed” by the Court and prevented from progressing further.
What is a Stay of Proceedings?
A Stay of Proceedings is a Court ruling that halts further legal processes. The Court will be minded to order a Stay where it is demonstrated that it will not be possible for the defendant to obtain a fair trial. In particular, the Courts have recognised that delay (in commencing legal proceedings) can cause significant prejudice (or difficulty) for defendants in a legal claim.
The Courts focus in determining whether a Stay should be ordered is entirely on the difficulties the difficulties a defendant may face due to delays in commencing legal proceedings. The Court will not assess or investigate the reasons for a survivor’s delay in pursuing their legal claim for compensation.
It should be noted that a Court does not expect a “fair trial” to be perfect. It may be unavoidable with the passage of time that witnesses pass on or are unable to be located and relevant documentary evidence may no longer be available. However, in some circumstances, the Court has determined that these factors may preclude the possibility of a fair trial.
Moubarak by his tutor Coorey v Holt: – Permanent Stay Ordered
The case of Moubarak by his tutor Coorey v Holt provides some guidance as to the factors a Court may consider when determining whether to grant a Stay of Proceedings. This matter involved a survivor pursuing her civil claim for compensation in the NSW District Court in 2016 as against the defendant for incidents of child sexual abuse that were alleged to have occurred on or around 1973.
A Tutor (someone to provide instructions on behalf of a person who lacks legal capacity) was appointed to the defendant who had severe and advanced Alzheimers disease. The Tutor filed a motion in the Court seeking a permanent Stay of Proceedings to stop the survivor’s claim from proceeding.  The Tutor asserted that a fair trial could not be possible as the defendant could not give evidence or provide instructions in the matter.
Whilst the motion was initially dismissed by the Court, the Tutor applied to have the matter heard in the Court of Appeal. The Court of Appeal subsequently ordered a permanent Stay of Proceedings which prevented the survivor’s claim from proceeding.
The Court considered the following features when determining whether to grant the Stay of Proceedings:

The defendant was never confronted with the allegations of abuse prior to the onset of his dementia. As such, there was never any record of his response to the allegations of abuse;
The defendant was never questioned by the police, as the allegations of abuse were first made after the onset of his dementia condition;
The defendant was suffering from advanced dementia at the commencement of the survivor’s legal proceedings;
There were no witnesses to the survivor’s incidents of abuse;
The defendant was incapable of giving instructions regarding his defence; and
There was no relevant documentary evidence to verify the incidents of abuse had occurred.

Gorman v McKnight: – Stay dismissed due to lack of investigation by the defendant
In contrast, the Court dismissed a motion by the defendant seeking a Stay of Proceedings in the matter of Gorman v McKnight. This matter involved a survivor pursuing a civil claim as against the estate of one of their deceased perpetrators. The NSW Court of Appeal declined to Order the Stay of Proceedings in this matter as they did not believe the defendant’s estate had exhausted all reasonable attempts to investigate the matter.
Specifically, Justice Payne commented:
“In the present case, the quality and extent of the enquiries made by the applicant for the permanent stay about matters which bore upon the fairness or unfairness of the proceedings were appropriately characterised by the primary judge as “perfunctory”.  The applicant for the permanent stay, in the circumstances of the case, did not prove that reasonable enquiries had been undertaken.  In the circumstances of the present case, a permanent stay has not been demonstrated to be warranted“.
Conclusion
The Court of Appeal has indicated that the removal of the relevant time limitations does not revoke the defendant’s right to a fair trial. The circumstances in which a defendant may not be able to receive a fair trial will be decided on a case by case basis. The onus (or responsibility) lies with the defendant to establish that they cannot receive a fair trial.
As above, although a fair trial does not need to be “perfect”, factors such as the passage of time (since the original incidents) and unavailability of witness/s may persuade the Court that a fair trial cannot occur.
Further, as in the case of Moubarak, the inability of the defendant to provide evidence was also material in determining that a fair trial could not occur.
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.
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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. This can not only be very frustrating, but it can also have an impact on your career, and take a major toll on your mental health.
In order to deal with an unfair situation at work, you need to know what your options are.
Internal resolution
Often the best place to start if you are being treated unfairly at work is through your employer’s complaint resolution process. Depending on your employer, this can either be an informal or formal process.
The first step is to let your immediate supervisor or manager know what is happening, and give them an opportunity to address the behaviour and talk to those involved. Often this informal approach can lead to a resolution of any issues, just by your manager talking to others involved.
That option may not be available if your manager is the person treating you unfairly. In that instance, the next step is to contact your Human Resources department about your concerns. If you can, put your concerns in writing and clearly and concisely set out your allegations. That way your concerns are on the record and your employer has a chance to address them appropriately. A formal investigation may take place into the alleged conduct, and you may be required to participate in a formal meeting or interview. The outcome may be satisfactory to you and the issues resolved. If not, you may need to take further action.
Reporting your employer to an industry regulatory body
If the unfair treatment you have been subjected to involves a breach of law or ethics in your industry, you can report the conduct of your employer to your relevant industry regulatory body. Often this can lead to an investigation and your employer may receive some kind of sanction for their bad behaviour.
Some more well-known regulatory bodies include The Australian Prudential Regulatory Authority (regulator of the Australian financial services industry), the Australian Communications and Media Authority (regulator of Australian communications and media services), the Australian Health Practitioner Regulation Agency (regulator of Australia’s registered health practitioners) and the Australian Energy Regulator (regulator of Australian electricity networks and gas pipelines, except Western Australia).
Reporting your employer to the Workplace Health and Safety Regulator
If you have been treated unfairly at work and it is affecting your mental health, you are likely being subjected to an unsafe workplace. If you believe your workplace is unsafe, you can report your concerns to the workplace health and safety regulator.
For most industries in NSW, the relevant regulator is SafeWork NSW. SafeWork investigates workplace incidents and enforces workplace health and safety laws in NSW. To make a report to SafeWork, you can call on 13 10 50, report online, visit your local Service NSW centre or make a complaint via post.
If you work on a mine or petroleum site, the relevant regulator is the NSW Resources Regulator. Similar to SafeWork, it oversees workplace health and safety on open-cut and underground coal mines, petroleum sites, quarries, opal and on other small scale mines and mining exploration activities. To make a complaint about an unsafe workplace in these industries, you can call on 1300 814 609, make a complaint online or email [email protected].
Both SafeWork and the NSW Resources Regulator have powers to investigate and inspect workplaces, enforce relevant workplace health and safety legislation, prosecute employers for breaches of the law, and require compliance through issuing improvement notices to employers.
Workers compensation
If the unfair treatment you have been subjected to has had a detrimental effect on your mental health, you may be able to lodge a workers compensation claim. In order to do so, you must have sustained an ‘injury.’ If you have been diagnosed with a psychiatric condition such as Anxiety Disorder, Major Depressive Disorder or Post-Traumatic Stress Disorder, these can constitute injuries under workers compensation legislation.
The first step in lodging a claim is talking to your doctor about your situation, and obtaining a SIRA NSW Certificate of Capacity. You should then lodge this with your employer. Your employer is required to notify their workers compensation insurer within 48 hours. The insurer should then contact you within 7 days of receiving the certificate to begin the claim process.
Often the insurer will appoint an independent investigator to carry out an investigation into the alleged unfair conduct. If your claim is accepted, you can receive weekly payments of compensation if you need time off work, and medical treatment such as counselling and medication. If you meet a certain injury threshold, you may also be entitled to lump sum compensation, or be able to sue your employer in negligence.
Fair Work
There are a number of options you may be able to pursue in the Fair Work Commission. This depends on your individual circumstances.
If you are being bullied at work, you can apply for an Order to Stop Bullying. If you are successful, the Fair Work Commission may make any orders that it considers appropriate to prevent you from being bullied. These can include requiring the perpetrator to stop their bullying behaviour, providing additional support and training to employees and requiring an employer to review its workplace bullying policies. The Fair Work Commission cannot however award financial compensation or impose financial penalties.
If your employment has been unfairly terminated, you may be able to bring an unfair dismissal claim. Your dismissal may be considered unfair if your dismissal was harsh, unjust or unreasonable, was not a genuine redundancy and, if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code. 
Anti-discrimination 
If the unfair treatment falls in a class protected by anti-discrimination laws, you may have a discrimination case. Such treatment includes if you are being discriminated against at work based on your age, sex, gender, sexual orientation, race, religion or on the basis of a disability.
Also protected under discrimination laws is sexual harassment. Sexual harassment is unlawful under the Sex Discrimination Act 1984. Sexual harassment includes when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours or engages in otherwise unwelcome conduct of a sexual nature which a reasonable person would have anticipated would cause offence, humiliation or intimidation to the victim.
You can lodge a claim by making a complaint to the Australian Human Rights Commission in writing. You can do so online, by post or by fax and remedies can include an apology, reinstatement if you have been terminated from your job, and compensation. 
Should I go to the media?
It is generally not recommended you go to the media about unfair treatment at work if you are looking to pursue legal options. However, it can be effective in limited circumstances. It is also not a good idea to post about what is going on at work on social media, as this may get back to your employer and adverse action may be taken against you.
Get legal advice
If you are being treated unfairly at work, the best thing to do is seek legal advice to understand which option is best for you. It is imperative you seek advice as soon as possible, as most legal pathways have strict time limits.
At Turner Freeman we have lawyers who are experienced in workers compensation and employment law, who are able to assist you with your case. Call us on 13 43 63 for a free case assessment.
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Even at the best of times, workplaces can often become a source of stress for employees. How this is managed by employers can often significantly impact whether general stress turns into a more serious condition.
Employees in Queensland are protected generally by the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
Historically, some psychological claims have been more difficult to successfully pursue due to changing definitions in the legislation as lawmakers (consecutive State Governments) wrestle with finding a balance that supports workers without being unfairly onerous on employers.
Changes courtesy of the Workers Compensation and Other Legislation Amendment Act 2019 (Qld) have recently shifted this balance once again, and pleasingly in favour of workers!
This legislation amends existing workers’ compensation legislation in Queensland. We have summarised some of the changes below, with the first stage of amendments commencing on 30 October 2019.
Definition of psychological injury
The definition of psychological injury now requires a worker’s employment to be ‘a’ significant contributing factor to the injury, rather than ‘the major’ significant factor. This subtle change of wording represents a major relaxation of the test for injured employees to meet now for their psychological claims to be successful.
Enhanced psychological support
Workers’ compensation insurers are now required to take all reasonable steps to provide support services, including general practitioner appointments, counselling or psychology sessions, psychiatry appointments and/or medication, to suffering workers while the claim is being determined. Previously, an insurer was not under any obligation to provide any assistance until the claim had been accepted.
Insurer discretion to waive time limit
Insurer’s now have the discretion to accept claims lodged outside the required six-month time limit to ensure workers, who have attempted to manage their injury at work are not disadvantaged.
These changes apply to injuries sustained from 30 October 2019.
The second stage commenced just last month, on 1 July 2020 with increased accountability for employers to better manage employees, and additional support for other vulnerable workers-
Return to work co-ordinator details
Employers are now required to provide details of their rehabilitation and return to work co-ordinators to their insurer, including details of the co-ordinators qualifications to perform the role.
Workers’ compensation coverage for unpaid interns
Workers’ compensation benefits are now extended to cover unpaid interns who perform work without payment of wages, to gain practical experience.
The full detail of the changes are explained on WorkCover Queensland’s website and the Act and explanatory notes are available on the Queensland legislation website.
If you are experiencing stress at work, support is also available from the following organisations, Beyond Blue , Lifeline and Queensland Health.
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Have you been given a small gift in a Will but think you should receive more from your parent’s estate? In a recent case a claim for further provision by an adult daughter “Jenny”, who in her mother’s Will was left $30,000 together with some personal items, was successful.
In that case Jenny was the 56 year old daughter of the deceased. Her mother gave her a gift of $30,000, chattels and personal effects including a drawing, an oil painting, a Buddha statue, her gold pearl and diamond ring, an art deco lamp and an unfinished painting. Apart from a gift of her wedding band, which she left to her grandson, the deceased gave the residue of her estate to her other daughter “Karen” who was 50 years of age. The only other person eligible to make a claim was her former husband, the father of both her children, however he did not make a claim.
The deceased died in 2018. The value of the estate was a modest amount of $571,873 or $433,200 after payment of the legal costs of the family provision proceedings.
When making her Will the deceased had given consideration as to what should be left to Jenny and this was discussed with her solicitor. In the deceased’s Will she included the following clause:
“I DIRECT that my daughter, Jenny, must not take any benefit or provision from my estate, other than the gifts bequeathed in clauses 5 and 6 herein. The decision to exclude Jenny from any further benefit or provision from my estate is made for the following reasons:
I have not had a close and/or personal relationship with Jenny since in or about October 2013.
I only speak with Jenny approximately 3 or 4 times per year in order to maintain contact with my grandchildren.
I do not feel supported by Jenny and consider that she is not willing to spend time maintaining a meaningful relationship with me.
In light of the size of my estate and my estrangement from Jenny, I consider that the gifts bequeathed to her in clauses 5 and 6 herein, are more than adequate provision.”
The deceased updated her Will after she was diagnosed with cancer and told by her Doctor to organise her affairs.
The deceased was clear with her instructions that she had minimal contact with Jenny and that she did not wish to make provision for Jenny. She lived with Karen and expressed her love and gratitude for Karen’s support.
After receiving advice, and encouragement from Karen, the deceased decided to give Jenny the gifts in the Will.
The deceased felt that her relationship with Jenny had broken down as Jenny expressed substantial hostility regarding Karen’s marriage to her current husband and this frustrated the deceased as she did not agree with how Jenny was treating Karen and felt she should have been supportive of Karen.
The deceased also moved from Queensland, where Jenny was residing, back to NSW where Karen was residing and the deceased felt that Jenny resented this and they had minimal contact thereafter.
Karen gave evidence that her mother thought Karen and Jenny’s father was going to leave a substantial part of his estate to Jenny with whom he resided and that the deceased had taken this into consideration when making her Will. Karen and Jenny’s father was suffering from dementia and therefore unable to change his Will so at some point in the future Jenny would receive that inheritance.
Justice Hallen accepted that there was not a complete estrangement between Jenny and her mother but that the relationship was not as close as it once had been. Although the deceased had made clear her intentions Justice Hallen was of the view that not all of the matters identified by the deceased accurately reflected the true position.
Jenny was unemployed and whilst she had investment properties her liabilities meant that she had little property of her own.
Justice Hallen ordered that Jenny receive $135,000 from the estate which would enable her to reduce all of her immediate debts and perhaps provide a modest amount for her advancement in life. Depending upon her choice, it would not necessarily relieve, in part, the mortgage debts, but it was Justice Hallen’s view that the deceased did not have an obligation to do so.
If you feel that you have been inadequately provided for in a Will please contact us at Turner Freeman to discuss a family provision claim against the Estate.
This case also shows that when giving reasons for leaving someone out of a Will, it is important that those reasons are accurate.  If you would like to discuss your Will please contact us at Turner Freeman.
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The question of “how much is my claim worth” is one of the most common questions that we are asked to answer as lawyers. Experienced lawyers may be able to provide you with an estimate based on prior similar cases however, until your case is investigated and expert evidence is obtained, it is impossible to know with certainty exactly what your case is worth. Each case must be assessed on its own merits.
The law aims to put you back in the position you would have been in if there was no negligence. You may be entitled to compensation for pain and suffering, care & assistance, loss of wages and ability to work and treatment expenses.
Pain and suffering
In terms of pain and suffering, the law provides a maximum amount that can only be awarded in the most extreme case. For example, a quadriplegic child with a brain injury may be considered the most extreme case in the eyes of the law. The current maximum amount that somebody who is considered the “most extreme case” (in NSW) can be awarded is $658,000.
There is another legal burden in obtaining damages for pain and suffering and that is, your pain and suffering must be considered to be at least 15% of the most extreme case in order for you to become entitled to pain and suffering compensation. Further, damages are awarded on a “sliding scale”. For example, if you are 15% of the most extreme case then you are only entitled to 1% of the maximum amount of $658,000 in compensation for pain and suffering.
Care & assistance
Care and assistance is called “attendant care services” and unpaid care and assistance is called “gratuitous attendant care services”.
In order to claim damages for “gratuitous attendant care services” you must prove that you reasonably required the assistance because of your injuries and that the assistance would not have been provided if the injury was not suffered. Additionally, you must have been receiving the gratuitous care and assistance for at least six hours per week for six months.
Loss of wages
You may be entitled to compensation for past and future economic loss. This includes money that you were unable to earn in the past as a result of your injuries as well as future loss of earnings. For example, you may have taken large amounts of time off work as a result of your injuries or you may not be able to perform the same job and earn the same amount of money as you would have if the negligence didn’t happen.
Treatment expenses
You can claim compensation for past and future treatment that you require as a result of the injury. For example, if you underwent negligent surgery and you require further surgeries and physiotherapy to put you back in the position you would have been in, if not for the negligent surgery, then the costs of that treatment can be claimed.
Get in touch with us
The medical negligence team at Turner Freeman will ensure that the maximum amount of compensation that can be claimed for you is claimed.
If you are considering bringing a medical negligence claim, it is important to obtain legal advice from solicitors who specialise in medical negligence. At Turner Freeman we have a team of lawyers who specialise in medical law claims.
If you or someone you know has suffered as a result of medical negligence we encourage you to call us on 13 43 63 to speak with one of our medical law experts. We will treat your enquiry and all information you provide confidentially.
The post How much is my medical negligence claim worth? appeared first on Turner Freeman Lawyers.

It is not unusual for legal definitions to have meanings that may not be obvious to a lay person. Seemingly simple references to words like “children” in a legal document like a Will can have unintended consequences.
The decision to leave an interest in a deceased estate to a child or children, for most, would appear quite straight forward. However, provision left in a Will to a “child” or “my children” can become contentious if the testator leaves surviving step-children, adopted children, foster children and even step-grandchildren.
The core issue is often trying to determine what the intentions of the testator were at the time they made their Will, and who they considered to be their “children”. For example, did the testator intend to only make gifts to natural children, which can include adopted children? Or, did they intend to include children whom lived with and were dependent upon them during the testator’s lifetime, which can include step-children and others?
The ordinary interpretation is that the word “children” means legitimate, biological children of the testator. However, if it can be shown to the Court that the testator considered step-children to fall within the meaning of “children”, the Courts will favour the interpretation that most closely resembles the testator’s intentions.
There are many judgments from the Courts where different interpretations have been given to the word “children” depending upon the unique circumstances of each case. No family is, after all, the same.
In the decision of Estate of Wright [2016] NSWSC 1779 the judge said:
“…in a will, the word “children” should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so.”
and
“Notwithstanding adherence to what might be seen as the traditional meaning of the word “children”, the Court has no doubt that in today’s society in particular cases its meaning readily extends to stepchildren.”
In Wright, the judge held that by referring to descendants and children in his Will, the testator considered that his step-grandchildren were part of his extended family and would be included upon the distribution of his estate.
Drafting a Will
In the case of Wright above, the Will was prepared in urgent circumstances which meant limited time was available to clarify all of the different family relationships. Family structures can change dramatically over time too, and by the time a Will comes into operation, circumstances may have changed.
When drafting a Will it can be advisable to expressly include or exclude a person as a beneficiary if there is any prospect of ambiguity. Specifically naming beneficiaries in a Will, where appropriate, ensures a person’s testamentary intentions are clearly expressed and avoids any uncertainty regarding who was intended to benefit from the estate. If a discretionary trust is being considered where no specific beneficiary is to be named, clearly defining what persons are to be entitled upon distribution is very important to avoid the estate incurring additional legal costs and undue delay.
Family Provision Claims
If a testator is, or has at some point in time been a step-parent to a child, the prospect of a future family provision claim against the estate should also be considered.
Step-children are not automatically considered an “eligible person” under Section 57 of the Succession Act 2006 (NSW). In order for a step-child to make a successful family provision claim they would be required to prove they were a person who:

At any particular time, was wholly or partly dependent upon the deceased person,
Who was at that time or any other time, a member of the household of which the deceased person was a member, and
There are factors that warrant the Court making orders in their favour.

If a step-child was at one time dependant on the testator they may be successful in meeting the statutory requirements.
Notably, a legally adopted child is eligible to bring a family provision claim against an estate just as if they were a biological child.
Get in touch with us
The Wills and Estate team at Turner Freeman Lawyers can provide professional advice to ensure your Will is drafted in clear and concise language that ensures your last testamentary wishes are carried out.
If you would like assistance preparing your Will, or you would like to discuss any questions you may have regarding estate planning, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.
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BY SALLY GLEESON AND ALICIA WONG
Sally Gleeson is a Partner and head of the medical negligence practice at Turner Freeman. Alicia Wong is an Accredited Specialist, personal injury law, specialising in medical negligence, at Turner Freeman.

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.
In each case, expert evidence must accompany the pleadings at the time of filing the documents (Uniform Civil Procedure Rules 2005 (NSW) r 31.36). Unlike a typical personal injury matter, in medical negligence, you run a risk by proffering res ipsa loquitur for the purpose of proving negligence on elements of alleged negligence in the case because questions in medicine can be obscure and therefore necessitate expert analysis. In matters of large value, spending money on both liability and quantum evidence is justified in circumstances where most of the plaintiff’s costs can be recovered from the defendant. The challenge in cases that are moderate or worse, modest in value, arises because the plaintiff is still required to prove the case but is limited in what they spend on the evidence required due to the cost recovery prohibitions imposed by the law. So how does a lawyer successfully manage such smaller cases when the legal issues remain the same, irrespective of the assessment of damages?
Expert evidence and early settlement
In medical negligence matters, it is important to have an established rapport with your expert. In that setting, the expert should initially be approached on a preliminary basis and their opinion sought on an informal basis. The expert can be asked to assess your client and their combined opinion sought on both questions of liability and quantum. This exercise may not only save time but also significant costs in the long run. The haphazard approach adopted by some legal practitioners where experts are delivered a brief and then given free reign with a written opinion is incongruous. This applies particularly in smaller claims where cost considerations are paramount to your client’s net result. It is also vital that your experts are armed with all the relevant information. A comprehensive client statement is usually the key to the list of assumptions provided to the expert and can result in the case’s quantum leap.
In a modestly valued claim, the liability report must be firm and conclusive. Without this quality to it, there is a definite risk in litigation, in that the cost of debating the issue of liability through further expert evidence, evidence in reply and conclaves may swamp the outcome to your client. With the benefit of an early and unequivocal expert opinion, one can avoid the potential snowball effect with costs.
While Root Cause Analysis (‘RCA’) reports are inadmissible at trial, they can be referred to in letters to the defendant and can be utilised as a bargaining chip in early settlement negotiations. The RCA often encapsulates the crucial issues in the matter and can be incorporated into a letter of demand, with a summary of those issues, seeking an admission of liability. This can serve to minimise costs and the time associated with obtaining expert evidence.
While admissions of liability in medical negligence cases are rare, reaching an agreement (even an informal one between legal representatives) as to the issues on breach of duty of care and causation can also facilitate early settlement negotiations. Where proving breach of duty of care or causation requires evidence from experts of different specialties, one may consider obtaining evidence on the weakest aspect of the case and serving it. This may assist with reducing the issues in dispute, particularly the appropriate discount for the risk of losing, and can serve to bridge the gap between settlement offers.
With an insured defendant, contact should be initiated and details of that defendant’s insurer or their solicitors can be requested. Often, a defendant appreciates this type of discretion and this can fuel their desire to press their insurer for a quick and efficient resolution of the matter. A comprehensive letter of demand should follow and the front-end loading approach of providing the defendant with all the relevant documents to the claim should be adopted. Defendants rarely shy away from a well articulated offer of settlement in smaller claims. Defendants are mindful that early resolution of a small claim can be in the best interests of all parties, particularly when the plaintiff is impecunious. Insurers have pecuniary considerations at the forefront of their minds and hence, they are aware that an early payment to the plaintiff today, rather than one or two years into a costly litigation, will serve to advance their commercial interests.
Formal settlement offers
If damages equate to $100,000 or less, the party/party costs’ recovery from the defendant is restricted to the greater of $10,000 or 20 per cent of the damages (Legal Profession Uniform Act 2014 (NSW) s 338). This does not include disbursements which are recoverable so long as they are reasonable and necessary. Disbursements do not however include Counsel’s fees. In modest claims, consideration should therefore be given to not briefing Counsel unless a hearing is likely. This restriction on costs recovery can be obviated by a written offer of settlement which can give rise to an award of indemnity costs.
In an unlitigated matter, a Calderbank offer can be served in the proper form. In smaller matters, this should annex a synopsis of damages and all relevant supporting documents. In a litigated matter, a properly formulated Offer of Compromise should always be served.
In Khan v Rathjen (2016) NSWDC 139, a heavily contested matter, judgment for the plaintiff was obtained in the sum of $206,000 and an additional order was made for payment of the plaintiff’s costs on an indemnity basis from 3 December 2015, the day after the plaintiff served an Offer of Compromise which was rejected by the defendant. The claim related to the defendant’s failure to properly assess and diagnose severance of the tendons in his left middle finger and to refer the plaintiff for appropriate treatment and investigations. The award of indemnity costs made a significant difference to Mr Khan’s net compensation result.
It is also important to bear in mind whether a Calderbank offer, or Offer of Compromise, has an element of genuine compromise. This may be questionable in cases where the plaintiff’s offer is to settle for the full value of the claim, or where a verdict for the defendant is offered in circumstances where the plaintiff has supportive expert evidence. Walk away offers from defendants can be construed as genuine if they involve the saving of significant costs (Leichhardt Municipal Council v Green [2004] NSWCA 341).
Conclaves
Defendants rarely shy away from a well articulated offer of settlement in smaller claims. Defendants are mindful that early resolution of a small claim can be in the best interests of all parties, particularly when the plaintiff is impecunious. Insurers have pecuniary considerations at the forefront of their minds and hence, they are aware that an early payment to the plaintiff today, rather than one or two years into a costly litigation, will serve to advance their commercial interests.
Expert conclaves are now part of court process and involve a conference of experts of the same specialty where they address previously decided questions in order to produce a joint report to the Court. Conclaves are designed to facilitate in the hope of narrowing down the issues between the parties, thereby promoting settlement negotiations and reducing the hearing duration and associated costs. Often, matters settle shortly after a conclave report is produced because the tenacity and reliability of one side’s expert pushes the other side into a settlement. Choosing the right expert can truly pay off at the conclusion of this process, particularly in a small matter.
Where the experts’ opinions are largely the same (for example quantum reports from psychiatrists with an agreed diagnosis but differing prognoses), the divergence in liability experts’ opinions is due to factual assumptions or where there is no commonality between their expertise, the utility of conclaves is often outweighed by the associated expense. In these circumstances orders should be sought (prior to a hearing) for the parties to be excused from the process.
To expand on this further, a conclave resulting in the experts agreeing that the defendant is liable if the plaintiff’s facts are believed but not liable if the defendant’s facts are believed, is unlikely to facilitate a settlement since factual disputes are determined at trial and not by the experts. For example, in Spasovic v Sydney Adventist Hospital [2002] NSWSC 164 the second defendant’s notice of motion for orders to conclave was dismissed as the Court was not satisfied that the possible utility test was met. There were factual disputes affecting the experts’ opinions. The doctors would have needed to express their opinion based on alternative assumptions of fact and this was unlikely to assist in the early resolution of the case.
Conclusion
Practitioners should not be deterred from investigating and litigating smaller medical negligence claims. Despite the hurdles and restrictions at law, with experience and the exercise of good judgment, these claims can be successfully managed to conclusion and satisfactory results obtained for your client.
The post Managing costs in medical negligence claims appeared first on Turner Freeman Lawyers.

It is a sad fact about Australian healthcare that those in rural and remote areas do not have access to the same level of healthcare as those who live in major cities.
The medical negligence team at Turner Freeman was sad to hear of Claire’s (not her real name) story reported by the abc. Claire lives in Narrabri and was pregnant with her second child. She reported to her general practitioner that she felt a reduction in fetal movements when she was three days away from being full-term. She was told to contact the midwives at the local hospital if she had any issues. Claire contacted the midwives a few hours late.  She was told it was normal to experience a reduction in fetal movements so close to term. The next day, Claire went to the local hospital. She was told to have an ultrasound, but the only ultrasound sonographer in Narrabri was on holidays and so she was told to drive half an hour to Wee Waa. Claire’s baby had sadly died in utero. You can read the article here.
The Australian Institute of Health & Welfare reports that mothers in areas outside of major cities have higher rates of stillbirths and neonatal deaths than those who live in major cities. However, what we don’t know is why mothers in areas outside of major cities have such higher rates. This is because current reporting obligations do not require hospitals to report “contributing factors” to stillbirth.
Higher rates of stillbirth and neonatal death may be due to lack of access to healthcare, poor resources and preventable factors such as maternal health or healthcare negligence. In our view, this represents a missed opportunity for increasing the health status of women in these areas. It also represents a missed opportunity for accountability of medical practitioners who do not follow guidelines and policies.
In order to establish negligence has occurred in a medical setting, you must show that a practitioner or hospital has breached their duty of care which in turn caused some damage or harm.
The medical negligence team at Turner Freeman has assisted numerous women in relation to claims arising from poor treatment during pregnancy and labour. We know from our experience that there are unique issues which affect women in rural settings. Sadly, we know that people in rural areas have access to less healthcare resources. In addition, we know that people who live in rural areas often face long transfer times to major cities to access tertiary hospitals and medical facilities. In a maternity situation, time is critical and delays can have devastating outcomes.
Get in touch with us
If you are considering bringing a medical negligence claim, it is important to obtain legal advice from solicitors who specialise in medical negligence. Turner Freeman has a team of experienced lawyers across NSW who specialise in medical law claims.
If you or someone you know has suffered as a result of medical negligence we encourage you to call us on 13 43 63 to speak with one of our medical law experts.
The post Stillbirths appeared first on Turner Freeman Lawyers.

This is the third in a series of four blogs on family provision claims in Queensland. The first in the series went through the steps involved in a family provision claim and the second looked at what the Court takes into account in a family provision claim when deciding what provision (if any) should be made.
This blog explores who is considered a “child” for the purposes of a family provision claim in Queensland.
For the purposes of Part 4 of the Succession Act 1981 (Qld) (“The Succession Act”) a “child” is defined as child, step-child or adopted child of a deceased person.
Parentage in Question:
Section 8 of the Status of Children Act 1978 (Qld) (“The Status of Children Act”) recognises a presumption of paternity if:
“(a)   The father and mother of the child were married to each other, or in a registered relationship, at the time of the child’s conception or at some subsequent time;
(a)     Paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if that purpose is for the benefit of the father, paternity has been so admitted or established while the child was living; or
(b)     A declaration of parentage has been made under section 10 (of the Status of Children Act) after the death of the father of the child.”
Section 10 of the Status of Children Act allows a person to apply to the Supreme Court for a declaration of parentage.
Step-child:
A “step-child” is defined in Section 40A of the Succession Act which states that a person is a step-child of the deceased person if:
(a)     they are a child of a spouse of the deceased person; and
(c)     a relationship of step-child and step-parent between the person and the deceased person did not stop.
The relationship of the step-child and step-parent stops on the following:

The divorce of the deceased person and the step-child’s parent; or
Termination of the civil partnership between the deceased person and the step-child’s parent; or
The ending of the de facto relationship between the deceased person and the step-child’s parent.

The section goes on to confirm and clarify, that to remove any doubt it, is declared that the relationship of the step-child and step-parent does not stop merely because:
(a)     the step-child’s parent died before the deceased person, if the deceased person’s marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died;
(b)     the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the step-child’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.
Adopted child:
If the deceased has legally adopted a child, the child will be considered the deceased’s child and eligible to bring a family provision claim against the estate.
However, in this instance, the adopted child will not be able to make a family provision claim against their birth parents’ estates.
As you can see from the above discussion, the question of who is considered a “child” under the Act and eligible to bring a family provision claim against an estate, is not a straight forward matter.  Accordingly, it is imperative that legal advice is sought as soon as possible.
If you have any questions, or wish to discuss contesting or defending a Will, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson, Christie Belsham and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.
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Most of us have an awareness of the CTP scheme from paying for our Green Slip. Many of us however wrongly assume that this scheme extends to “car accidents” alone.
Injured persons should be aware of the legal minefield arising from accidents involving vehicles such as a forklift or bobcat. Oftentimes these accidents occur in a work setting and are serious in nature.
In addition to a workers compensation claim, such an accident may give rise to a claim under the Motor Accident Injuries Act against the owner/driver of the vehicle, CTP insurer and the Nominal Defendant, as well as a Civil Liability Act claim.
It is not uncommon for an injured person or their employer to initiate a workers compensation claim, and prior to seeking legal advice, assume they have done everything necessary to protect their rights.
Critically, they may be unaware of the strict timeframes that apply to claims under the Motor Accident Injuries Act 2017, which include reporting the accident to police within 28 days and the lodgment of an Application for Personal Injury Benefits within 28 days. An Application for Personal Injury Benefits can be lodged  up to 3 months post-accident however after 28 days back payments of lost income cannot be claimed. There is a further 3 year limitation period applicable to damages claims under the Motor Accident Injuries Act.
This mistake can prove costly when it comes time to claim lump sum damages for the injury. For example, a workers compensation insurer may argue that they are not liable to pay damages because the accident is properly characterised as a motor accident.
Additionally, damages claims under the Motor Accident Injuries Act can be more valuable because injured persons can also claim non-economic loss (pain and suffering).
Anybody injured involving a vehicle such as a forklift (at work or otherwise) should seek urgent legal advice. A diligent lawyer will make sure all bases are covered at an early stage.
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Adam Tayler, Partner in Turner Freeman Lawyers Brisbane office, who specialises in Superannuation, Insurance and TPD claims recently appeared in the The Cairns Post. Full article below, written by Grace Mason and appeared in The Cairns Post – July 25 2020
A FAR North commercial fisherman has claimed an insurer refused to pay out his life insurance policy because his arms were only seriously injured, not amputated, despite having lost the use of both of them in a work accident.
Michael Taifalos, 61, who worked alternate seasons as a diesel fitter and fisherman, tore both rotator cuffs in his shoulders attempting to lift a large block of ice onto a boat after catching 40okg of mackerel on a fishing trip in July 2015.
The self-employed grandfather-of-six said he took out a personal insurance policy with MLC Limited in 2004 and had been paying around $1,000 a month.
But he and solicitor Adam Tayler, from Turner Freeman Lawyers, claimed the insurer has refused to pay out because Mr Taifalos still has his arms, even though he cannot use them.
“I’ve got these arms that just sort of hang beside me,” he said.
“I can’t even pick (my grandchildren) up.
“The pain really builds up at night.
“It’s horrendous. It’s relentless, it does not stop.
“I wake up in the morning and all I can think of is pain.”
Mr Taifalos, who lives at Kurrimine Beach, has not been able to work since his injuries.
He has filed documents in the Cairns Supreme Court suing the insurer, accusing them of refusing to pay out the accidental injury claim, for more than $930,000, plus at least $40,000 in damages.
In an extract of the alleged policy in the documents, it said the insurer would pay out a maximum of $2 million for various injuries including the “loss of the use of both hands”.
Solicitor Mr Tayler said many self-employed people took out life insurance. “His arms are basically hanging from their sockets,” he said.
“(We will allege) it goes against the spirit of the policy.”
Mr Taifalos said he felt the insurer “promised the world and I was basically given the atlas”.
An MLC Life Insurance spokesman said they could not comment on the matter as it was before court.
The insurer is yet to file any court documents and a court date is yet to be set.

The former diesel fitter and fisherman tore both rotator cuffs in his shoulders attempting to lift a large block of ice onto a boat after catching 400kg of mackerel on a fishing trip in July 2015.
Took out a personal insurance policy with MLC Limited in 2004 and had been paying about $woo a month.
Claims the insurer is refusing to
Taking Cairns Supreme Court action and suing for more than $930,000.

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Sufferers of asbestos diseases including mesothelioma, lung cancer, asbestosis and pleural disease are often unaware that they have compensation entitlements and that there are time limits restraining how long they have to commence a claim.
Different countries and indeed each State of Australia have their specific own time limits.
Some States of Australia have no time limit while others have extremely strict time limits. For the States with strict time limits a person is barred from bringing a claim for compensation if they do not commence proceedings within the legally allotted time frame. This means if a sufferer commences proceedings after the relevant time limit expires then they are, in most circumstances, no longer entitled to compensation.
The matter of time limits is complicated particularly where a person has exposure to asbestos in more than one State and/or overseas. It is for this reason it is imperative that sufferers of asbestos disease seek legal advice from an expert asbestos lawyer as soon as they are diagnosed with an asbestos disease to ensure their entitlements are protected.
If you have been diagnosed with an asbestos disease please contact your nearest Turner Freeman office so an experienced asbestos lawyer can provide you advice on an obligation free basis.
When it comes to people suffering from mesothelioma seeking legal advice as a matter of urgency is imperative, as court proceedings must be commenced in their lifetime to ensure the amount for general damages (also known as pain and suffering) survives for the benefit of their Estate. If proceedings are not commenced within a person’s lifetime their loved ones are under compensated.
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It is common practice for people with a physical injury and/or illnesses to claim for Total and Permanent Disablement (TPD) benefits through their superannuation.
A question that we are often asked however is whether a claim can be made for TPD benefits for a pure mental health condition? The answer to this question is yes.
Many people who have been diagnosed with a mental health condition, such as depression, anxiety, bi-polar, schizophrenia, Post Traumatic Stress Disorder (PTSD) or similar conditions that impact on a person’s ability to work may be entitled to submit a claim for TPD benefits.
If you have been diagnosed with a mental health condition that is impacting your ability to obtain and maintain employment, even if the mental health condition is long standing, you may be entitled to make an application for TPD benefits.
With a claim for TPD benefits for a pure mental health condition, it is important to demonstrate a history of treatment, including general practitioner, psychological and/or psychiatric care. The key to all TPD claims generally, but especially claims for mental health conditions is to be engaged with and have the support of your treating providers, along with good legal advice early in the claims process.
With a history of treatment and the right legal advice a claim for TPD benefits for a pure mental health condition can be successful.
TPD claims for a pure mental health condition can be complicated. For this reason it is important to seek legal advice with respect to your entitlements early. Getting sound legal advice and advocacy from the start of the claims process can avoid costly and lengthy delays and rejections of claims that otherwise ought to have been accepted.
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Approximately one in seven people in Australia suffer from hearing loss.[1] Loss of hearing can have a significant effect on a person’s social and emotional wellbeing. Our clients often complain of feeling unable to attend social events, because of the humiliation of constantly asking family and friends to repeat themselves. Many clients say their family becomes frustrated when they cannot hear them. Some people also suffer from a constant ringing in their ears, which can disturb their sleep patterns and effect their overall quality of life. This is known as tinnitus.
There are many causes of hearing loss, including age, genetics, diseases/disorders, physical trauma and exposure to loud noise.[2] If you have worked in a noisy environment and are suffering from hearing loss, some of that hearing loss may be attributable to noise exposure in your workplace. If that is the case, you may be entitled to make a workers compensation claim for industrial deafness.
At Turner Freeman Lawyers, we understand that making a claim may feel daunting and overwhelming, and we aim to make the process as simple as possible for you. This article aims to answer the most common questions we get from our clients when they are deciding whether to make a claim.
Where do I start?
The first step is to obtain legal advice about whether you are entitled to make an industrial deafness claim and what the process involves. If you wish to obtain advice about making a claim, you can give us a call on 13 43 63.
You will eventually need to attend an appointment with an Ear, Nose and Throat (ENT) specialist, who will assess your level of work-related hearing loss.
If I make a claim, what might I be entitled to receive?
Your entitlements under the NSW workers compensation legislation depends on a number of factors, including your level of hearing loss, the date you last worked in noisy employment, and the industry in which you were/are employed.
Generally speaking, you will be entitled to make a claim for hearing aids where they are considered reasonably necessary as a result of your injury.  When assessing whether hearing aids are reasonably necessary, a number of factors are taken into account, including but not limited to:

the appropriateness of the treatment;
the effectiveness of the treatment;
the availability/effectiveness of any alternative treatment;
the cost of the treatment; and
the acceptance by medical experts of the treatment being appropriate/effective.[3]

Some workers may also be entitled to make a claim for lump sum compensation. Most workers in NSW must meet a threshold of 11% whole person impairment (‘WPI’) – equating to 20.5% binaural hearing loss – before being entitled to claim for a lump sum.
However, for some categories of workers, such as those who last worked in noisy employment before 1 January 2002, coal miners, and some paramedics, fire fighters and police officers, the threshold is only 6% binaural hearing loss. The amount of compensation you are entitled to depends on your level of hearing loss.
Speak to one of our experienced workers compensation lawyers for advice specific to your circumstances.
What happens after I make a claim?
The insurer can choose to accept or deny your claim. If it accepts your claim – fantastic! You can arrange an appointment to have your hearing aids fitted and you will receive your compensation.
If the insurer denies your claim, you can challenge the decision in the Worker’s Compensation Commission.
Sometimes, the insurer will make an offer. If that is the case, you can choose to accept the offer or proceed to the Commission.
I have worked in noisy industry for most of my working life – which employer is liable?
In NSW, claims for industrial deafness must be made against the last ‘noisy’ employer. The legal test for determining whether an employer is ‘noisy’ is whether the incidences, tendencies and characteristics of the employment give rise to a real risk of industrial deafness.[4]
If you are still working in a noisy environment, the claim must be made against your current employer.
It does not matter whether you worked for your last noisy employer for one day or 40 years – if it meets the legal test, that employer will be liable. It also does not matter whether they were the noisiest employer; they just have to be the last noisy employer.
How much will it cost for me ask a lawyer to make a claim on my behalf?
We have solicitors at our firm who are approved lawyers with the Worker’s Compensation Independent Review Office (WIRO). WIRO is a state government body that provides funding for injured workers to obtain legal representation. Most of our client’s receive a grant of funding from WIRO and do not need to pay legal fees or associated costs of a claim.
For a limited number of other industries, the insurer will pay your legal fees if you are successful.
If you think you have hearing loss that might have been caused by work, contact Turner Freeman Lawyers today to find out more.
[1] Hearing Care Industry Association 2020, Hearing for Life – The value of hearing services for vulnerable Australians (Report, March 2020) iii.
[2] Hearing Care Industry Association 2020, Hearing for Life – The value of hearing services for vulnerable Australians (Report, March 2020) 7.
[3] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32; Diab v NRMA Ltd [2014] NSWWCCPD 72.
[4] Blayney Shire Council v Lobley & another (1995) 12 NSWCCR 52; applied in Dawson & Ors t/a The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 [33].
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Since the COVID-19 virus entered Australian Shores in late January 2020, a large number of implications have resulted to most Australian households. During these tough times, many people have lost their jobs, reduced their work hours or more concerning, had an injury and or illness and can never return in any form of employment.
Since COVID-19 was declared a pandemic, what would you do if you or your loved one, sustained an accident through work or motor vehicle accident and or illness and could not work again. How would you pay for your bills and costs of living?
At Turner Freeman Lawyers, not only do we look after your work place injury or motor vehicle accident, but we look at all avenues that are beneficial to you including making a Total and Permanent disablement claim from your Superannuation account. Given these unprecedented times, it is not unusual to be accessing your super account balance also.
If you are working, you are likely to have Total and Permanent disability insurance coverage associated with your superfund. A claim for Total and Permanent can be made if you have sustained an injury and/or illness and cannot work ever again. A claim for Total and Permanent Disablement provides you with a lump sum amount, which will now be assessed based on your recent working arrangements since COVID-19 became a pandemic.
Essentially, if you sustained an injury and/or illness and you have been absent from work for six (6) consecutive months and you are unlikely to be able to return to employment you are suited to by way of education, training and experience, you will be considered totally and permanently disabled.
Since the COVID-19 outbreak however, many superfunds under the Financial Services Council initiative have now agreed that should you have lost your job, are stood down or have had a reduced number of hours, your total and Permanent disablement claim will not be affected until 27 September 2020.
Accordingly, the Financial Services Council arranged an eligibility criteria should your injury and or illness resulted were you cannot return to your occupation. The eligibility criteria is as follows:

If you were working in your normal capacity on 11 March 2020
Have had reduced working hours or lost your job due to COVID-19 since 11 March 2020;
Became disabled as a result of injury and/or illness between 11 March 2020 to 27 September 2020;
Have maintained your Total and Permanent Disablement cover at the time you became totally and permanently disabled and
Lodged your claim form on or before January 2021. 

How to make a claim:
If you are Total and Permanent Disabled resulting from an illness or injury, at Turner Freeman Lawyers, we are able to lodge your Total and Permanent Disablement by utilising the above criteria to ensure you are able to access your superfund insurance. It is important to note that you must maintain superannuation contributions.
The process of lodging a Total and Permanent disablement can be lengthy so it is best to speak to our lawyers to make sure you receive the benefits you are entitled to. At Turner Freeman Lawyers, we can lodge your claim for TPD insurance based on your working arrangements before 11 March 2020, when the COVID-19 was declared a world pandemic
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If you have ever been in, or seen a car accident, you will know that it can be a frightening experience and often it is difficult to know what to do in the immediate aftermath of an accident. As compensation lawyers, we regularly see people who are in need of some basic human to human guidance before even thinking about their legal rights.
So here is a brief shortlist of what we often share with people when they call us asking, “I have been in an accident and I don’t know what to do next?”
At the scene of the accident

Call 000 and report the accident to Police.
Take a photo of the registration plates of any cars involved.
If you are able to, swap contact details and insurance details with the other driver/s.
If you are not seen by ambulance officers at the scene, take yourself to a GP and get yourself checked out.

After the accident

Sometimes, for minor accidents, no emergency service will be in attendance. In these situations it is important that you take yourself to a GP if you develop any pain or discomfort.
Check your car for damage and take photos (if not towed from the scene).
Contact your comprehensive insurer (if you have one).
If you require medical treatments, seek early advice from a lawyer about possible access to CTP insurer funded rehabilitation and your legal options generally. The sooner you are able to access these, the better the chance you have of recovering.

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 the Turner Freeman Lawyers Team 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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