A jury has awarded a New Jersey man, Stephen Lanzo, $117 million in compensation after finding that Johnson & Johnson’s Baby Powder was laced with asbestos that caused his mesothelioma.
Mr Lanzo was an investment banker in New York City. He was a user of Johnson & Johnson’s Baby Powder from 1972 to 2003.
The primary component of Baby Powder is talc, which is commonly known as ‘talcum powder’. Johnson & Johnson has always argued that it used pure talc. Mr Lanzo was able to produce evidence at trial that Johnson & Johnson’s Baby Powder also contained asbestos powder.
The jury agreed with Mr Lanzo’s contention, and found that Johnson & Johnson and the talc supplier Imerys Talc America failed to adequately warn Mr Lanzo that the Baby Powder contained asbestos.
Mr Lanzo’s lawyers were able to prove, after obtaining internal documents from Johnson & Johnson, that Johnson & Johnson knew that its Baby Powder was contaminated with asbestos and also that they engaged in a cover up spanning decades to prevent regulators from finding out. The most damning document showed that, as far back as 1969, Johnson & Johnson’s medical officers warned about the problems and signalled that in “forty years” the company would be hit with a wave of mesothelioma lawsuits.
Evidence uncovered by the Reuters news agency since the trial has been even more damning.
Johnson & Johnson’s test lab found asbestos fibres in samples taken in its Vermont talc mines in 1984, 1985 and 1986. These test results had not been previously publicly disclosed.
There are now 14,000 lawsuits against Johnson & Johnson before American courts of people alleging that their mesothelioma and other cancers were caused by Johnson & Johnson’s talc products.
It is important to note that this is an American case, and in New South Wales compensation awards for mesothelioma are not as large as they are in the United States. It has also not been proven that any Johnson & Johnson product sold in Australia contained asbestos.
Turner Freeman has the largest asbestos litigation team in Australia and can investigate the source of your asbestos exposure if you are diagnosed with an asbestos-related condition.
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Many Australians have an interest in one or more superannuation funds. A person’s superannuation interests may form a significant part of that person’s wealth in the event of their death. This is particularly the case if upon their death a type of life insurance known as death benefit insurance is paid into the superannuation funds held on their behalf.
Superannuation is not, however, automatically considered an asset of a deceased person’s estate. It is therefore not always able to be dealt with by a person’s will. This is because superannuation is not held or owned outright by the deceased. Instead, their superannuation interests are held on trust for them by the trustee of the super fund. This is demonstrated by the fact that unless you meet the conditions for the release of any superannuation interests, the funds remain inaccessible to you during your working life.
Superannuation Binding Death Benefit Nominations (‘BDBN’)
It is possible to direct a trustee to deal with your superannuation interests in a certain way upon your death, but your options will always depend on the terms of the trust deed and any rules associated with the exercise of the trustee’s general discretion. This is the case whether the superannuation interests are held in a government super fund, a retail super fund or in a self managed super fund (‘SMSF’).
If no direction is provided to a super fund trustee regarding how to distribute your superannuation interests, the trustee will generally be able to exercise their discretion to make a decision about how much and to whom any superannuation interests are to be paid.
The most common form of direction able to be provided to a super fund trustee is by way of a binding death benefit nomination (‘BDBN’). This document may be supplied to a member by the super fund trustee and it must be prepared and executed properly in order to be considered valid. For example, a BDBN must

be in writing,
be signed, and dated by the member in the presence of 2 witnesses, being persons:

each of whom has turned 18; and
neither of whom is a person mentioned in the BDBN; and

the BDBN must contain a declaration signed, and dated, by the witnesses stating that the notice was signed by the member in their presence.

A BDBN is capable of being revoked at any time, but otherwise, the nomination will generally cease to have effect after 3 years from the date it was made. Non-lapsing BDBN’s may be made in some cases depending upon the trust deed and any applicable rules.
Marriage/Separation/Divorce
The marriage of a person with superannuation interests may invalidate any binding or non-binding nominations made prior to the marriage. Each superannuation fund trust deed may have specific rules regarding how marriage is treated. This is because the superannuation legislation refers to eligible superannuation beneficiaries being limited to spouses, de factos, children, dependents and inter-dependents.
Even non-lapsing nominations can be rendered non-binding on trustees after a person remarries, enters into a de facto relationship, separates from their spouse or partner or becomes divorced.
Trustee discretion
Because of the complex nature of human relationships and the attempts by legislators, Courts and lawyers to define those relationships on paper, it is not always clear how a trustee may interpret the law and the evidence and material it receives after someone’s death.
The decisions made by trustees are subject to review and sometimes litigation because people disagree with the decisions made by a super trustee. The forum for any review may include AFCA, the Superannuation Complaints Tribunal or the Supreme Court. Such disputes are inevitably lengthy and expensive.
The particular circumstances of person with a superannuation interest will always be best known by that individual. That individual will know how they want their superannuation interests paid after their death. Whether they are married, separated, divorced, in a de facto relationship, living in an interdependent relationship or in some other situation, they are best placed to make their own decision and to tell their super trustee of their wishes.
To avoid leaving the decision about how to dispose of a significant financial interest after death, it is advisable that some consideration be given to preparing a BDBN and ensuring that it is kept current and valid.
Other matters
Read more about the effect of marriage on your Will.
Read more about the effect of marriage on your Enduring Guardian.
Read more about the effect of marriage on your Power of Attorney.
Read more about the effect of marriage when don’t have a valid Will.
Whether you are married, separated or divorced you should still consider how marriage may affect your legal interests and your estate planning matters.
If you would like assistance with your estate planning matters please do not hesitate to contact  Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.
The post Effect of Marriage on Estate Planning: Part 5 – Superannuation appeared first on Turner Freeman Lawyers.

Rundle Mall’s old department stores were sprayed extensively with asbestos when they were built in the 1960s – now court cases are revealing retail employees died after being exposed to the cancer-causing substance.
Retailers have paid compensation to employees who contracted fatal illnesses from being exposed to asbestos sprayed by contractors within their Rundle Mall department stores in the 1960s, court documents have revealed.
David Jones, Myer and John Martin’s have been sued by staff who developed mesothelioma from asbestos sprayed on steel beams. The asbestos has since been removed, either through demolition of the buildings or refurbishment.
In the most recent judgment- handed down this month- three Supreme Court judges ordered a contractor to fund the bulk of $435,000 paid in compensation by David Jones to a window dresser who died in 2008.
Bradford Insulation (BI) Contracting Pty Ltd unsuccessfully appealed against an order by the District Court to pay 75% after it found the company failed to warn David Jones about the dangers of asbestos.
Phillip Murphy, 6o, is among several former Rundle Mall workers to successfully take legal action against David Jones, Myer and John Martin’s over the past 15 years. The others include a plumber, carpenter and wallpaper salesperson.
Their lawyers told the Dust Diseases Tribunal and District Court their clients were exposed to large amounts of asbestos sprayed by Bradford Insulation inside Rundle Mall department stores.
The highly toxic blue asbestos- known as crocidolite- was widely used as a fire retardant during construction projects in the 1950s and 1960s.
During Mr Murphy’s case, lawyers detailed how Bradford Insulation had sprayed 18,500 sqm of crocidolite during the construction of the David Jones store in Rundle Mall (then called Rundle St) in the early 1960s.
Mr Murphy’s lawyers told the Dust Diseases Tribunal he subsequently was exposed to the asbestos while working as a display artist in the top storey of the building between 1965 and 1978.
Former David Jones staff gave evidence that dust from the asbestos often came out of air conditioning ducts or ceilings and that the sprayed asbestos could be seen on exposed steel beams.
David Jones settled the case in 2007 by paying Mr Murphy $435,000 in compensation. He died the following year.
The matter then ended up with the District Court, with David Jones suing Bradford Insulation. It argued the company should pay the bulk of the compensation because it did not warn David Jones about the dangers of asbestos in the 1960s.
In his findings, Judge Brian Gilchrist ruled Bradford Insulation “knew when it sprayed asbestos at the Charles Birk store (David Jones) in 1960 that it was hazardous and that it took no steps to warn David Jones or any of its employees of the dangers that it posed”.
“I find that BI’s failure to warn of the dangers that the asbestos that it sprayed at that store presented showed a want of care on its part,” he said.
“It knew before it supplied and installed it at the Charles Birk store that it was hazardous and that it could harm those who were exposed to it.
“It could have and should have provided warnings and information about the hazards that it presented.
“It took no steps after it had installed the asbestos to warn David Jones of the danger that it presented.
“Its indifference to the health and safety of those who it knew would be exposed to the product that it supplied, and which it knew was dangerous, was an extreme departure from the standard of care that would be expected of the reasonable person.”
However, Judge Gilchrist also found that David Jones should have investigated the potential risks posed by the asbestos as more evidence emerged of its danger.
“Whilst there is no evidence that establishes that David Jones knew about the dangers of exposure to asbestos, given the state of knowledge in the 1970s about those dangers, it could have and should have made enquiries about the risks that working with asbestos entailed,” he said.
“I am permitted to know that over Mr Murphy’s employment with David Jones that it was a sophisticated, well­ resourced entity. As such, its lack of knowledge about the danger of asbestos was inexcusable.
“It should have taken appropriate protective measures to minimise the harm to which its employees were exposed. “Its departure from the standard of care that would be expected of the reasonable person acting in its position over the period of Mr Murphy’s employment was significant and became increasingly so as the years passed.”
Judge Gilchrist ordered Bradford Insulation to pay 75% of the compensation to David Jones, prompting the company to appeal to the Full Court of the Supreme Court.
In its findings – handed down on November 8 – the Full Court upheld Judge Gilchrist’s decision and rejected the appeal.
Adelaide lawyer Annie Hoffman, who specialises in asbestos cases, said Mr Murphy’s case highlighted how asbestos sprayed in Adelaide buildings had caused serious health issues. “Sadly, this is not the first case of someone contracting an asbestos-related disease after working in a retail store containing sprayed asbestos,” she said.
“I have represented a number of former retail workers who contracted mesothelioma as a result of being exposed to sprayed asbestos in the buildings where they worked.
“There have also been cases involving the workers who installed the sprayed asbestos, other tradesmen on site when the spray was installed, maintenance workers who worked in areas where the spray was installed, and retail employees who simply worked in the buildings.”
Ms Hoffman, of Turner Freeman, said sprayed asbestos was highly friable.
“This means that as it ages and degrades, the material easily becomes loose, releasing dust and fibres,” she said.
“This spray mixture often used crocidolite, commonly known as blue asbestos. Crocidolite is highly toxic and is thought to be the most potent asbestos fibre in terms of causing the asbestos cancer mesothelioma.”
Ms Hoffman said evidence tendered to the District Court during Mr Murphy ‘s case showed “that the sprayed asbestos at the David Jones store was at times left exposed so that not even a false ceiling was there to encapsulate the beams and restrict the spread of asbestos fibres “.
“People don’t often associate shop assistants as a group of people at risk of asbestos diseases, but in my practice, when a client tells me they worked at one of these department stores, we always investigate that their potential source of exposure.
A David Jones spokeswoman said the company was committing to helping employees who had suffered because of exposure to asbestos.
“This is a regrettable issue resulting from the widespread use of asbestos in the construction industry in the 1960s, and we are deeply sorry for the impact this has caused,” she said.
“David Jones is committed to ensuring all legislative requirements with respect to asbestos are met and maintained. “In addition, we are committed to ensuring all team members who may have had exposure to asbestos are supported and assisted, including through the provision of annual health checks.”
A Myer spokesman said the company acknowledged the “devastating impacts asbestos exposure has had on members of the Australian community and, also, to Myer employees who worked in the now demolished Rundle Mall store”.
“Where possible, Myer has co-operated with parties who are assisting past employees receive compensation they are entitled to,” he said.
Industrial company CSR, which owns Bradford Insulation, declined to comment.
Original article appeared in The Advertiser on 25/11/19.
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As of 1 July 2019, the Federal Government’s new laws regarding superannuation came into effect.
The new legislation, known as the Protecting Your Super Package Act, affects members of certain superannuation funds where no contributions have been received for more than 16 months by cancelling their death and disability insurance automatically – unless certain steps are taken by the member.
In addition, if the fund has had no contributions for more than 16 months, and the total balance is under $6,000, the funds will be paid to the Australian tax office, and if possible, moved to an active superannuation fund or otherwise paid to the member directly.
In the event that your total and permanent disablement insurance and/or income protection insurance is cancelled because of the above changes to the law, you may still be covered as long as you had insurance when you became ill or injured and ceased work as a result.
How do I keep my automatic insurance through my superannuation fund?
After 1 July 2019, we recommend that you take the following steps to keep any automatic insurance coverage you have through your superannuation:

having $6,000 or more in your superannuation account;
making contributions to your account every 16 months if you do not have an employer making regular contributions; or
contacting your superannuation fund and advising them that you would like to opt in for insurance cover.

In addition, we recommend that you seek expert advice from a financial adviser to check that your current insurance policies meets your needs.
The post How Total and Permanent Disablement insurance is affected by the new superannuation laws appeared first on Turner Freeman Lawyers.

There are two main ways of defining the group members in a class action. These include:

the opt-out model – this means that the class action is commenced without the express consent of group members and anyone who meets certain criteria is considered to be a group member and will be bound by any judgment or settlement. At some stage during proceedings group members will be provided with the opportunity to “opt out” if they do not wish to be a group member or want to pursue their own individual claim.
the opt-in model – this is essentially the opposite to the “opt out model” in that group members must indicate that they want to be a part of the class action. As such, only those group members who have “opted in” to the class action will be bound by the judgment or settlement.

The opt-out model is the approach adopted in NSW.
Class closure
In a class action, the Court is able to make orders to close a class. This means that group members in a class action have to register to receive certain rights and entitlements. For example, a class may be closed prior to a mediation to help facilitate a settlement. This is because class closure enables the parties have certainty with respect to the number of people in the class and also specific details as to the group member’s injuries, loss and/or damage.
It is important that group members in a class action keep up to date with any notices that are distributed because failure to opt out or to register in the event of class closure may significantly affect the rights and entitlements of a group member. For example, if class closure occurs and a group member does not opt out and does not register, they may not be entitled to share in any settlement but may still be bound by it.
Class Action against The Cosmetic Institute
Turner Freeman is acting for hundreds of women, on a “no win, no fee” basis, who have suffered from major complications as a result of surgery in a class action against The Cosmetic Institute and others. You may be considered as a group member in the Cosmetic Institute class action if you satisfy the following criteria:

You must have undergone surgery with The Cosmetic Institute, either at one of their own facilities or at one of their licenced hospitals (Concord Private Hospital, Holroyd Hospital or Southport Day Surgery); and
You must have suffered an “injury”.

In any class action, it is important that you put your hand up to be counted. For this reason, we invite you to register your interest in the class action against The Cosmetic Institute and others with Turner Freeman Lawyers. Following your registration, one of our lawyers will be in touch with you.
If you have any questions, you can contact Sally Gleeson, Medical Negligence Partner on (02) 8222 3333.
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Annual Ecumenical Service
On Friday, 29 November 2019 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 22 November 2019. You can download the invitation below or contact us through our online enquiry form and we will gladly post an invitation out to you.

The post Ecumenical Service – Friday 29 November 2019 appeared first on Turner Freeman Lawyers.

When parties marry, they form a legal relationship with each other; such legal relationship can only be severed by the process of divorce. Divorce is the legally recognised ending of a marriage. Despite many separated spouses going on to live independently and apart, when parties to a marriage separate without divorce the legal relationship of marriage remains.
For the effect of marriage upon a will, see Part 1.
Marriage can also have a large influence on the administration of a deceased estate when the deceased died without leaving a valid will.
What is a Will?
A will is a legal document that operates on your death, by which the will-maker expresses their wishes regarding how their estate is to be distributed at death.
Regardless of wealth, a will is an important component of estate and financial planning to ensure a smooth legal transition of your assets to your intended recipients. If you do not have a will, are unsure whether your will meets your needs, or wish to ensure you have a legally valid will, it is important you obtain legal advice.
Notwithstanding the importance of having a valid will, an increasing number of deceased estates are being administered in the absence of a will, because the deceased did not make a valid will during their lifetime.
The absence of a valid will
When a person dies without a valid will, it is presumed they died ‘intestate’. The consequent of dying intestate means the deceased’s estate will be administered in accordance with the set-formula of intestacy, pursuant to Chapter 4 of the Succession Act 2006.
Chapter 4 establishes the order in which eligible relatives will inherit a deceased estate under intestacy (after payment of funeral, administration expenses, and liabilities have been paid).
Specific rules apply when the deceased died with a surviving spouse or de facto partner. In general terms and in order of priority the relatives who can inherit an intestate estate are:

spouse and/or de facto partner(s);
children;
parents;
brothers and sisters;
grandparents;
aunts and uncles;
cousins

The term “spouse” is defined in section 104 of the Succession Act 2006 as a person:

who was married to the intestate immediately before the intestate’s death; or
who was a party to a domestic partnership with the intestate immediately before the intestate’s death

Under this definition spouses who are separated, without formalising divorce, are still eligible to inherit an intestate estate. This applies even if the deceased had an eligible de facto partner as at the date of death. In the case of multiple spouses, specific rules apply to the sharing of the entitlement.
Remaining married after separation does not revoke the legal effect on spouses under the rules of intestacy.
Divorce
Divorce is a relatively straightforward and inexpensive process. If the marriage has broken down irretrievably, a divorce application can be applied for by one spouse, or both jointly, provided the following criteria is met:

Either party is an Australian Citizen or has ordinarily lived in Australia for 12 months before making the application;
The parties have been separated for at least 12 months and if the parties have been married for less than 2 years, they have attended family counselling and obtained a counselling certificate

If considering divorce, a prospective applicant should obtain legal advice to understand their rights and obligations.
Other matters
Regardless of your marriage status, it is important to consider how marriage and divorce may affect your legal and financial interests.
For more information, see
Part 1 – Effect of Marriage on Estate Planning Part 1: Wills 
Part 2 – Effect of Marriage on Estate Planning Part 2: Enduring Guardians
Part 3 – Effect of Marriage on Estate Planning Part 3: Power of Attorney
The post Effect of Marriage on Estate Planning: Part 4 – When you don’t have a valid will appeared first on Turner Freeman Lawyers.

Going to work and being injured whilst at work is probably the last thing that runs through your mind when you leave to go to work. That’s why it’s essential to have a worker’s compensation policy even if you think you’re a contractor. Australia is one of the very few countries fortunate to have fundamental legislations and regulations in place to help and protects workers; contractors and even deemed workers. If you have had an injury and are finding the procedure complex and confusing, at Turner Freeman lawyers were here to help you and take on your problems so you don’t have to.
If you were injured at work, NSW legislation provides you entitlements to claim if your injury was work related and a substantial contribution factor. If you had an injury and thought you were a contractor, you just might classified as a deemed worker.
Under the Workplace Injury Management and Workers Compensation Act 1998 No 86, Schedule 1, provides an extensive list of individuals who can be categorized an a worker or contractor. There is often misinterpretation of whether you claim workers compensation if you are a contractor.
There are three categories of employment that can apply to any person injured at work.

Worker – as defined by Workplace Injury Management and Workers Compensation Act 1998, Schedule 1, a worker is a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing) exceptions apply.
Contractor – If you have an ABN, it does not mean you are a contractor but may be a deemed worker.
Deemed Worker – under the Workplace Injury Management and Workers Compensation Act 1998 Schedule 1, – Some are ‘deemed workers’ even though they have been hired as a contractor or sole trader, example  if you are a contractor or sole trader for tax purposes and you do not sublet nor employ other employees, than you may be taken to be a worker for whom the service was provided to.

Before we assess a contractor vs deemed worker, icare sets out several factors that determine the form of employment as follows:
A contractor is likely to:

engaged to carry out particular task using their own skill and judgment
employ others, delegate or sub-let work to others
paid on the basis of a quotation for a service
supplies their own equipment, tools and materials
conducts business or an independent business in their own name or under a business or firm name. Having an ABN does not indicate a person’s employment status.

 A worker is likely to:

be directed by the employer regarding work to be performed and the time and manner in which it is to be performed
be required to y carry out the work
be paid on a time basis
have equipment, tools and materials supplied by the employer
works exclusively for a single employer
be affected by PAYG tax arrangements.

Case Study:
NSW Workers Compensation Commission makes a precedent case and finds reality TV contestant  on contract for Chanel 7 Network to be a Deemed Worker. 
Facts:
A contestant on the reality TV show “House Rules” on Chanel 7 was paid $500 each week including allowance for filming and undergoing renovations.
During production, the contestant was isolated and an encouragement of bullying by co-competitor was aired as well as production crew. As a result the contestant sustained bullying, adjustment disorder, anxiety , depression and post traumatic stress causing significant psychological and psychiatric injuries. 
Issue:
Whether the contestant was an independent contractor as she had no skill in renovations, but rather was she providing a service to channel Seven by being on the show? 
Arbitrators Decision:
Despite the reality TV signing a contract with Chanel Seven that she was a participate and was not a form an employment that did not create an employer/employee relationship, Arbitrator Cameron Burge stated “ The respondent derived benefit from the Applicant giving her time and engaging in home renovations for the television show and without the contestants, the productions would not take place and that the relationship was an employee/ employer relationship”. 
Summary:
Simply providing a service does not necessarily make you a contractor, it is rather the service and the variables that could differentiate whether you can make a workers compensation claim or not. A person may have been hired as a contractor and be a contractor for tax purposes, but still be a worker for workers insurance purposes. The status for tax purposes has no direct relationship to that person’s status as a worker for workers insurance purposes. A person therefore may be able to claim workers compensations for injuries sustained whilst at work.
The post Identifying deemed workers from contractors appeared first on Turner Freeman Lawyers.

Ipswich morning tea invitation
Please join us for a FREE community health information seminar  followed by a morning tea at Brothers Leagues Club.
More information about this event can be found on the below Seminar Invitation.

Representatives of Turner Freeman Lawyers and the Asbestos Disease Support Society will be available to speak with you.
Date:   Tuesday, 29 October 2019
Time:  10 am to 11:30 am
Venue: Brothers Leagues Club, Wildey Street, Raceview, QLD, 4305
RSVP:  by 22 October 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Health information seminar in Ipswich appeared first on Turner Freeman Lawyers.

Case note – AFH v AAI Limited trading as GIO [2019] NSWDRS CA 134
Background
On 28 August 2018 the Claimant was riding his motorbike with a group of other riders on the South Coast.
The Claimant’s version of events was that he indicated left and pulled off to the side of the road. The Claimant states his bike was stationary in the middle of the “fog lane” and outside the left lane when the insured driver, travelling in the same direction, collided with him.
Both vehicles burst into flames and the Claimant sustained serious injuries, remaining unfit for work.
The Insurer asserted that the Claimant had performed a U-turn in front of the insured motor vehicle. The Insurer therefore denied liability for statutory benefits beyond 26 weeks on the basis that the Claimant was “wholly or mostly at fault” for the accident.
Accordingly, the Claimant’s solicitors filed an application with the Dispute Resolution Service (DRS).
DRS Application
As a preliminary matter, Counsel for the Claimant asserted that the Insurer bore the onus of proof in establishing that the Claimant was “wholly or mostly at fault” for the accident. The nub of the argument was that the Insurer should bear this onus it was trying to strip the Claimant of his statutory benefits, to which he would otherwise be entitled.  This was ultimately conceded by the Insurer.
There were a number of deficiencies in the evidence relied upon by the Insurer. The Insurer did not serve a statement from its insured driver. The Insurer was unable to secure the attendance of a police witness to give evidence. There were significant delays in obtaining the police file and an investigator’s report.
The matter was listed for a face-to-face assessment conference.
Ten days before the assessment conference the Insurer issued a revised liability notice, conceding that it could not discharge its onus of proof. The Insurer therefore accepted liability for statutory benefits beyond 26 weeks from the accident.
Costs
Counsel for the Claimant sought an order for “exceptional costs”, arguing that the 2017 Act conferred upon the DRS Assessor a discretion to allow costs beyond the $1,633 permitted by the Regulation.
Counsel for the Claimant relied upon s 8.10, ss (4)(b) of the Act, which provides that the DRS can permit the payment of legal costs incurred by the Claimant where “exceptional circumstances” exist.  Counsel argued that this subsection acts as a “safety valve” against any injustice in limiting costs to the regulated fee.
Given the complex factual and legal issues, Counsel submitted that “exceptional circumstances” existed to warrant an award of costs in excess of the regulated fee. Clearly, this was a matter where the regulated fee was inadequate.
The Insurer argued that 8.10(4)(b) did nothing more than allow the DRS Assessor to award the regulated fee.
The Assessor ultimately accepted the Claimant’s argument, awarding total costs of $20,807.16.
Implications
Where an insurer is seeking to disentitle a claimant to statutory benefits on the basis that they are “wholly or mostly at fault” for an accident, the solicitor for the Claimant should seek a concession or finding that the insurer bears the onus of proof. In this matter, this concession was key to the undoing of the Insurer’s case.
Where “exceptional circumstances” exist, the solicitor for the claimant should consider an application for costs beyond the regulated fee. This may represent an important step in improving access to justice under the 2017 Act, enabling solicitors to invest the appropriate time and resources into a complex DRS application. Time will tell how readily DRS Assessors will award costs beyond the regulated fee.  It is also noteworthy that exceptional costs have also been awarded by a different Assessor in AFG v GIO Limited [2019] NSWDRS CA 133, an unrelated matter also involving an injured motorbike rider. The Insurer also conceded that it bore the onus of proof in this matter.
This is an encouraging development for solicitors representing claimants in disputes under the 2017 Act.
The post Case note: motorbike accident appeared first on Turner Freeman Lawyers.

Morning tea invitation – Gold Coast
We invite you, your partner, carer and friends to a morning tea co-hosted with the Asbestos Disease Support Society.
This FREE community health information seminar will be held at the Currumbin RSL on Thursday 24 October 2019.
More information about this event can be found on the Seminar Invitation.

Representatives of Turner Freeman Lawyers and the Asbestos Disease Support Society will be available to speak with you.
Date: Thursday, 24 October 2019
Time: 10 am to 11:30 am
Venue: Currumbin RSL, 165 Duringan Street, Currumbin, QLD, 4223
RSVP: by 17 October 2019. P: 1800 776 412 or email: [email protected]
Morning Tea is provided for your enjoyment.
The post Morning tea invitation on the Gold Coast appeared first on Turner Freeman Lawyers.

For information regarding what an Enduring Guardian is and how they operate, please see here.
Enduring Guardian
Pursuant to the provisions of Guardianship Act 1987 (NSW) any capable adult person is able to appoint substitute decision makers on their behalf in the event they become unable to make decisions about their own affairs. Under the Guardianship Act, a Guardian is defined to be:
a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian.
The general principles of acting as a Guardian include that:

the welfare and interests of an incapable person should be given paramount consideration,
the freedom of decision and freedom of action of an incapable person should be restricted as little as possible,
such incapable persons should be encouraged, as far as possible, to live a normal life in the community,
the views of an incapable person in relation to the exercise of any Guardianship functions should be taken into consideration,
the importance of preserving the family relationships and the cultural and linguistic environments of an incapable person should be recognised,
an incapable person should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
an incapable person should be protected from neglect, abuse and exploitation.

Considering the above principles, it is not surprising that many people elect to appoint their spouse as an Enduring Guardian. This, however, means that care needs to be taken when a person marries, divorces or separates from someone that may be nominated or appointed as their Guardian/Enduring Guardian.
Marriage
Marriage automatically revokes by law any appointment of an Enduring Guardian, that is, unless the marriage is to the same person appointed as the Enduring Guardian.
Certain appointments, however, are not effected by the automatic revocation by law, including where the appointed Enduring Guardian was in an already solemnised same sex marriage that was recognised in Australia as valid when the Commonwealth Government legalised same sex marriage in December 2017.
Separation
Unless an Enduring Guardian document is revoked by the person who made the document, or it is declared to be invalid or amended by an order of the Guardianship Division of the NSW Civil and Administrative Tribunal (or other higher authority), the Enduring Guardian document will continue to operate.
For this reason, any changes in a person’s relationship status or their circumstances should prompt a review of any appointed Guardians.
Divorce
The appointment of an Enduring Guardian is not automatically revoked by law when a person divorces their Enduring Guardian. This means that unless the document is expressly revoked by the person, the appointment of their ex-spouse as their Guardian continues. That may not be a palatable or desirous outcome if the relationship between the person and their appointed Guardian is no longer harmonious.
Other matters
For more information about the effect of marriage on your Will, see here.
For more information about the effect of marriage on your Power of Attorney, see here.
Whether you are married, separated or divorced you should still consider how marriage may affect your legal interests and your estate planning matters.
If you would like assistance with your estate planning matters please do not hesitate to contact Wills & Estates lawyers on 13 43 63 or via our online enquiry form.
The post Effect of Marriage on Estate Planning: Part 2 – Enduring Guardians appeared first on Turner Freeman Lawyers.

On 26 September 2019 the Therapeutic Goods Administration (TGA) published an update advising of the outcomes of their review into breast implants and breast tissue expanders. You can read the entire update here: https://www.tga.gov.au/alert/breast-implants-and-anaplastic-large-cell-lymphoma
In summary, the TGA has taken the following regulatory action:

Suspended “macrotextured” grade 3 and 4 and some “microtextured” implants for a period of 6 months;
Imposed conditions on inclusion, of all breast implants that are still available, in the Australian Register of Therapeutic Goods (ARTG);
Imposed increased reporting requirements on implant manufacturers and suppliers for providing information about adverse events, including cases of breast implant associated anaplastic large cell lymphoma (BIA-ALCL); and
Some manufacturers and suppliers chose to cancel the inclusion of their implant devices during the period of review and as such are already no longer available on the Australian market.

What is a suspension?
When a product is suspended by the TGA, it is considered to no longer be included in the ARTG. This means that the product cannot be “imported, manufactured, or exported from Australia” by the manufacturer or supplier for the period of the suspension. It also means that all implants that have not been implanted will be removed from shelves.
Comment from the Australian Society of Plastic Surgeons
The Australian Society of Plastic Surgeons issued a media release supporting the regulatory action taken by the TGA. The media release stated:
“The Australian Society of Plastic Surgeons has commended the TGA’s regulatory changes following its review of breast implants and breast tissue expanders as a sensible and measured response that will improve safety of women whilst preserving options for women, particularly those requiring reconstructive surgery following breast cancer treatment…”
TGA’s advice to women with textured implants
The TGA stated in their update that implant removal is not required in someone who does not have any symptoms or concerns. It is advised that if you do notice any changes in your breasts or experience any symptoms such as “swelling, a lump or pain” that you should speak to your treating doctor. If you do have concerns or require further information you can visit the “Breast implant hub” at https://www.tga.gov.au/hubs/breast-implants. It is a resource provided by the TGA that aims to provide information and support about breast implants.
Turn to Turner Freeman
Sally Gleeson, medical negligence partner and her team of lawyers are experienced in cases involving complications of breast augmentation surgery. If you have suffered complications as a result of a breast augmentation surgery, please contact us so that we can assess your case. Alternatively, if your surgery was performed by The Cosmetic Institute, you can register your interest in our Class Action below.
Register in our Class Action
We invite you to register your interest in the class action against TCI with Turner Freeman Lawyers. It is important that you put your hand up to be counted. If you have suffered complications as a result of surgery by TCI, please register on our website and our medical negligence Partner, Sally Gleeson or one of her team members will be in touch to explain the process.
The post TGA regulatory action re breast implants sold in Australia appeared first on Turner Freeman Lawyers.

The Workers Compensation Legislation Amendment Act 2018, assented on 26 October 2018 introduced a number of reforms to the workers compensation scheme, but one of the most intriguing reforms is Schedule 2, the removal of Section 65 (3) of Workers Compensation Act 1987 which originally stated:
If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless an approved medical specialist has assessed the degree of permanent impairment.
As of 1 January 2019 this clause is repealed. The Arbitrators of the Workers Compensation Commission may now make orders for an assessment of permanent impairment, which are binding, pursuant to Section 322A of the Workplace Injury Management and Workers Compensation Act 1998 and the decision has the status and effect of a Medical Assessment Certificate.
What does this mean for the various disputes involving an assessment of permanent impairment? Can Arbitrators flex their authority in all these disputes? Not necessarily.
The Workers Compensation Commission issued Bulletin 33 which indicated in the event a dispute involves a dispute on threshold in respect of:

a claim for work injury damages
whether a worker is defined as ‘high needs’ or ‘highest needs’

the Registrar, more likely than not, would refer the dispute to an Approved Medical Specialist for determination.
In the event a dispute does not involve a threshold argument, (ie. the Worker submits a claim for 14% WPI and there is an offer of 11% WPI) the WCC may refer the matter for an initial teleconference.
What happens if the insurer fails to determine the dispute, or there is no competing assessment of permanent impairment?
The Arbitrator certainly has the discretion to order assessment of permeant impairment and the matter of Meredith Kato v City of Sydney [2019] NSWWCC 288, Arbitrator Rachel Homan outlines some key indicators that she considered in exercising this power:

A competing assessment of permanent impairment was not obtained/provided or served in the proceedings.
There is no dispute as to liability for injury.
An examination of the existing Independent Medical Examination report by the Arbitrator did not indicate the assessment was unreliable or inappropriate or failed to adhere to the SIRA Guidelines.
There were no submissions made in respect of the IME report being unreliable or inappropriate or failed to adhere to the SIRA Guidelines.
Whether any grounds or reasons to incur further delay and costs associated with a referral to the AMS is justified.

The above is straightforward case, but workers compensation claims are never straightforward and each case must be examined on its own merits.
In complex disputes where liability issues arise, would an Arbitrator have the same considerations where there is competing evidence but no assessment of permanent impairment? In the event where liability is determined in the worker’s favour and a claim for permanent impairment is made, it should be considered that even though liability was disputed, this should not stop an assessment of permanent impairment being made and the Arbitrator should consider making an order for permanent impairment.
On the other hand, what happens when there is no competing permanent impairment assessment, but opinion that a worker has not attained maximum medical improvement? In this case, it can be appropriate for the Arbitrator to have the matter referred to the AMS as the question of stability has always been in the hands of medical specialists.
A practitioner could take a chance and argue the competing report could be flawed, inappropriate or factually incorrect. If an Arbitrator has the existing power to prefer one medical opinion over another in liability disputes, then it could be arguable that one medical opinion should prevail over another when it concerns whether a worker has attained maximum medical improvement and assessment of permanent impairment This argument should not seek to rely on the one report or take a hypercritical approach on another report without treating doctors reports and contemporaneous medical evidence in support.
A practitioner should consider the best strategy in achieving the optimal outcome and try to protect an injured worker’s rights and entitlements in the future. Noting that the Arbitrator’s determination is considered is binding as a one and final Medical Assessment Certificate, practitioners should undertake careful review of their medical evidence and IME reports before proceeding to the Commission.
The post To refer or not to refer to the Approved Medical Specialist appeared first on Turner Freeman Lawyers.

Invitation to Symposium by ADSS – What you need to know
Asbestos Disease Support Society (ADSS) is again hosting their annual Asbestos Symposium in Brisbane. The Symposium will provide an opportunity to hear from industry experts who will share their insights to enhance asbestos awareness, safety, treatment, education and collaboration.
Free community event in Brisbane
Attendance is open to interested members of the public. A range of speakers will cover a number of topics associated with treating asbestos, including various treatments, research, oncology and radiology.
Details
When: Wednesday, 16 October 2019
Registration from 9:30am, morning tea provided on arrival for a prompt 10:15am start. Light lunch provided from 12:30pm.
Where: City Hall, King George Square, Brisbane (Brisbane room)
Cost: Free
RSVP: 1800 776 412 – [email protected] by Friday, 11 October 2019

 
For more information about the Symposium please download the brochure.
The post 2019 Asbestos Symposium in Brisbane appeared first on Turner Freeman Lawyers.

Being involved in a car accident can be very stressful. Here are a few things you can do that will help with your claim for compensation:

Check yourself for injuries and check the well-being of your passengers. Call 000 if you require immediate assistance.

Gather as much information as you can from the other driver. Ensure that you get details including:

name;
phone number;
vehicle registration number;
insurance information (provider, insurance number, policy details);
drivers license number.

Gather contact details from any witnesses at the scene. If liability is disputed by the other driver’s insurer, witness evidence may be crucial to determine who was at fault for the accident.

If you can, take photos of the vehicles and the scene. Photographic evidence is useful if liability is disputed by the insurer.

Report the motor accident to the police. Attend your local police station as soon as possible after the accident to provide details of the accident, location, time and date, as well as the contact details of the parties involved.  The police will also need to know whether anyone was injured.

See your general practitioner (GP) as soon as possible after the motor accident, preferably within 24 hours of the motor accident. Tell your GP about your injuries.  If you make a claim for compensation, your medical records will be obtained by the insurer and they can provide a contemporaneous record of the injuries you have suffered.

Call the relevant CTP insurer at the earliest opportunity and lodge an accident claim form in order to have your claim managed as quickly as possible. As of 1 July 2016 there are four insurance companies providing CTP insurance in SA (AAMI, Allianz, QBE and SGIC).  You need to lodge your claim form within 6 months of the collision.  We recommend that you contact a lawyer for advice before you lodge the claim forms.

If you are injured, take photos of your injuries as they progress. If you visit a hospital, or a GP, ensure that you keep all relevant documents and receipts. If you buy pain relief, pay for parking or pay for assistance around your home, ensure that you keep receipts and relevant documentation. These expenses may be claimable from the insurer.

Remember that the insurer has different interests to you in your claim. In order to get the best possible outcome, and to put yourself back in the position you were previously in, you should contact Turner Freeman Lawyers for advice.
Don’t forget that time limits apply. You have 6 months to lodge an accident claim form. There is also a very strict time limit of 3 years from the date of the motor accident to lodge your claim in the court.  You should always seek legal advice as early as possible.
It is always best to get professional legal advice about your individual circumstances to ensure that you achieve the best outcome in your matter.  Call Turner Freeman Lawyers on 08 8213 1000 to speak to one of our experienced lawyers.
The post I’ve just been in a car accident. What do I do now? appeared first on Turner Freeman Lawyers.

Family provision claims
If you have not been included as a beneficiary in someone’s Will you may be able to make a family provision claim against the deceased person’s estate. The application must be filed with the Supreme Court of New South Wales within 12 months of the date of death.
Who can claim?
In order to be able to make a claim, firstly, you must be an eligible person. An eligible person is defined in the Succession Act 2006 as:

a person who was the spouse of the deceased person at the time of the deceased person’s death,
a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
a child of the deceased person,
a former spouse of the deceased person,
a person:

who was, at any particular time, wholly or partly dependent on the deceased person, and
who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Secondly, inadequate provision must have been made for you by the deceased for your education, maintenance or advancement in life. The issue is not whether you have been treated unfairly it is whether inadequate provision has been made for you.
There are a number of factors which the Court will take into consideration in determining whether an Order should be made for provision out of the deceased’s estate which include the relationship with the deceased, whether there was any estrangement and, if so, the reasons for the estrangement, the size of the estate, the interests of the other beneficiaries, any gifts made during the lifetime of the deceased and the reasons why you were left out of the Will, if any specified by the deceased.
In order for you to be successful in a family provision claim, you must be able to prove to the Court you have financial need and the onus is on you to prove that provision should be made for you from the deceased’s estate.
Often claims can be resolved without proceeding to a final hearing, for example, at a mediation.
If you believe adequate provision has not been made for you from someone’s estate please contact us at Turner Freeman to discuss whether you are eligible to make a claim.
The post Have you been left out of a Will? appeared first on Turner Freeman Lawyers.

Under the Motor Accident Injuries Act 2017, injured motorists are not automatically entitled to lodge a claim for damages with the relevant insurer.
Although persons injured in motor accidents are entitled to claim statutory benefits for a limited time following an accident, regardless of whether they are at fault, it must be agreed or determined that they have suffered more than a minor injury in order to be eligible to make a claim for additional damages.
Statutory benefits include weekly benefits for wage loss at a prescribed rate, as well as medical and care expenses provided, they are causally related to the accident and reasonable and necessary.
If a Claimant has more than a minor injury, and it is agreed or determined that they are not wholly or mostly at fault for the accident, those statutory benefits will continue beyond 26 weeks. In addition to ongoing statutory benefits, those persons are also entitled to make a claim for damages with the insurer.
Under the current scheme, a claim for damages potentially includes lump sum compensation for non-economic loss (pain and suffering), past economic loss, future economic loss as well as past and future loss of superannuation. Such claims can be potentially valuable in recovering just compensation for injuries sustained due to the negligence of other motorists.
The legislation states however, that a claim for damages cannot be made until 20 months after the date of the motor accident. As the current scheme commenced on 1 December 2017, many persons are not yet entitled to make a claim for damages unless the accident occurred within the first few months of the scheme commencing.
There is an exception to the above. That is, where it has been determined that a person’s Whole Person Impairment is 11% or more, there is no need to wait for the 20 months to elapse before making the claim for damages.
In order to determine the extent of impairment, it is necessary to undergo an examination by an appropriately qualified medico legal specialist who can provide a report assessing the impairment. That report is then submitted to the insurer who will be required to either concede that the impairment is over 10% or seek their own assessment. In the event of a dispute, the matter can be referred to the Dispute Resolution Service for a binding assessment. Where the impairment is agreed or assessed at more than 10%, damages can be claimed for non-economic loss (pain and suffering) in accordance with the legislation.
Wage Loss
When it comes to wage loss, a damages claim can include a component for past and future loss of earnings, or the deprivation or impairment of earning capacity. In addition, a damages claim can be made for reimbursement of income tax paid on statutory benefits.
For the purpose of claiming future wage loss in a claim for damages, the claimant must satisfy the court or claims assessor that the assumptions about future earning capacity or other events on which the award is to be based, accord with the claimant’s most likely future circumstances but for the injury.
Superannuation
In addition to the above, in a claim for damages, the claimant may make a claim for loss of past and future superannuation which is not paid on statutory benefits.
Time Limits
Strict time limits apply for the making of a claim for damages. The claim must be made within 3 years of the accident and the claimant is required to complete a separate claim form notifying the insurer of the claim.
It is necessary to particularise the claim to the insurer and it is recommended that claimants seek legal advice at an early stage so that investigations may be commenced without delay.
The post Making a damage claim under the Motor Accident Injuries Act 2017 appeared first on Turner Freeman Lawyers.

Understandably, one of the most common questions that people ask when considering whether to pursue a medical negligence claim is “how much is this going to cost.” It can be difficult at the beginning of a matter to provide an exact estimate of costs because at that time it can be difficult to know exactly what the work will involve.
Legal costs are usually made up of professional costs and disbursements.

Professional costs represent the fee charged for the work performed.
Disbursements are those fees which are incurred in the investigation and running of your claim. For example, doctors and hospitals usually charge a fee for providing copies of your medical records and experts will charge a fee for providing an opinion with respect to whether a doctor breached their duty of care, or the extent of harm that you suffered.

If a firm has offered to act for you on a “no win, no fee” basis in medical negligence claim, this generally means that you will not have to pay any upfront professional costs. You may still be required to contribute to disbursements, such as funding an initial expert opinion, depending on your situation. The remainder of the costs will usually be deferred until the successful completion of your matter.
Solicitor/Client costs
Solicitor/client costs are the costs that are charged by the lawyer to you (the client) and includes both professional costs and disbursements.
Party/Party costs
The Court can order one party to pay another parties costs in a medical negligence matter and this usually follows the success of a matter. This is known as “ordered costs” or “party/party costs.” Generally, the solicitor/client costs will be more than the party/party costs, as these costs are only what the Court considers to be appropriate and reasonable for the successful party to be awarded. For example, in a medical negligence case, a plaintiff may be awarded $150,000 for their injuries and solicitor/client costs may be $50,000. The defendant may have to pay $30,000 towards the plaintiff’s costs and this means that the plaintiff only has to pay the gap of $20,000.
Get in touch with us
At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.
If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.
The post How do costs work in a medical negligence claim? appeared first on Turner Freeman Lawyers.

Occasionally, a will-maker’s assets might be dealt with by someone under a power of attorney that then affects what will happen under that person’s will when they die.
A person’s will may give specific items to certain people, but if that asset no longer exists at the time that person dies and there is no alternate provision in the will, then the gift in the will may no longer apply.
However, where it was the will-maker’s attorney (ie. the person appointed and acting under the will-maker’s enduring power of attorney) who dealt with the will-maker’s asset while the will-maker was incapacitated, then particular people might be able to apply to the Court to have this problem resolved.
The law says that where:

a maker or former maker of an enduring power of attorney (known as the “donor”) dies leaving a will; and
the donor suffered a period of legal incapacity while the enduring power of attorney was in force; and
it appears after the donor’s death that a person using the enduring power of attorney during that time affected the share of a beneficiary under the will,

then certain persons may be able to make an application to the Court to have this issue rectified.
The Court can make orders so that no beneficiary gains a disproportionate advantage or suffers a disproportionate disadvantage of a kind not contemplated by the will.
For example, if a will-maker gave their house to a specific beneficiary under their will, and then the attorney (being the person appointed to act by the will-maker under the will-maker’s enduring power of attorney) sold the house during a time that the will-maker was suffering a legal incapacity, then the beneficiary would likely be disproportionately disadvantaged because the house would no longer exist at the time of death. The beneficiary, without any Court orders, would miss out on receiving the house that was left to them because the house had been sold by the attorney.
A house might be sold by an attorney to fund a move into aged care for example, and the will-maker may not have considered or made provision in their will for what should occur to the gift of the house if it this occurred.
It then makes sense for that beneficiary or another interested person to apply to the Court to have this issue rectified.
Any orders made the Court will be treated as if the contents or terms of the order had been made by a codicil to the will (ie. a binding document altering part of a will) immediately before the will-maker’s death.
Such an application to the Court must be made within six months from the date that probate or letters of administration is granted, or at such further time as permitted by the Court. It is important, however, to act very promptly in relation to making such an application to reduce the likelihood of the estate being distributed early.
Get in touch with us
If you feel you might have been affected by an attorney under an enduring power of attorney or are unsure about the actions or role of an attorney, you should seek legal advice as soon as possible. Contact us on 8213 1000 to discuss.
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