On Wednesday, the Australian Institute of Health and Welfare released data regarding the incidence of mesothelioma in Australia in the last year.
Mesothelioma is the terminal asbestos related cancer, which occurs most often in the pleura of the lung or peritoneum. Importantly, there is only one known cause of mesothelioma, asbestos exposure.
One of the highest rates of mesothelioma
Australia, as a country, has one of the highest incidence rates of mesothelioma in the world with Western Australia having the highest rate per capita. Reportedly, last year alone 699 people died from mesothelioma.   Sadly, we believe the number was a lot higher with many people not reporting their diagnoses.  Data indicates the majority of sufferers were male, around 75 years of age and were men exposed to asbestos in an occupation and non-occupational setting. While this is true, it is important to remember that mesothelioma affects women as well as men of different ages.
It has long been reported that Australia’s asbestos use peaked between 1970 and 1979 with Australia using around 700,000 metric tons of asbestos during this period. Given the latency period of 10 to 50 years+ from exposure to diagnosis we expect to continue to see the incidence of mesothelioma continue to increase in the future.
With Western Australia’s heavy reliance on asbestos cement building products and our ever lasting legacy of Wittenoom, it is important if you experience any of the following symptoms that you request your general practitioner refer you for high resolution CT scan at first instance:-

shortness of breath
chest pain
weight loss
night sweats

If you are unfortunate enough to be diagnosed with mesothelioma (or any other asbestos related disease such as asbestosis or pleural thickening) it is imperative, you seek legal advice. Asbestos litigation is complex, as can be locating a viable exposure period for which a claim can be brought.  Therefore, it is important you have the right lawyers to represent you.
We can help
Call our asbestos lawyers today for an obligation free discussion regarding you or your loved ones’ compensation entitlements. We act on a “no win, no fee basis” meaning there are no legal costs if you do not have a claim or do not wish to proceed with a claim.
We would be more than pleased to meet with you at your home, in hospital/hospice or where ever will make you feel most comfortable.
The post Almost 700 people died from mesothelioma in 2018 appeared first on Turner Freeman Lawyers.

Morning tea at North Lakes Sports Club
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 North Lakes Sports Club on Thursday 26 September 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, 26 September 2019
Time: 10 am to 11:30 am
Venue: North Lakes Sports Club, 42 Flinders Parade, North Lakes, QLD, 4509
RSVP: by 19 September 2019. P: 1800 776 412 or email: [email protected]
Morning Tea is provided for your enjoyment.
The post North Lakes morning tea appeared first on Turner Freeman Lawyers.

A claim for psychiatric injury can be brought by a person in conjunction with a claim for personal injury, as consequential to the physical harm that they may have suffered. However, it is not necessary to have suffered a physical injury in order to bring a claim for psychiatric injury. This is known as “pure mental harm.”
There are two main situations in medical negligence cases where this may occur:

You suffered a recognised psychiatric illness as a result of negligent treatment that you received; or
You suffered a recognised psychiatric illness as a result of witnessing somebody else “being killed, injured or put in peril” because of negligence.

In order for a person to be liable for causing mental harm, that person must be able to foresee, that a person of normal fortitude, in those particular circumstances, would suffer a recognised psychiatric illness if reasonable care were not taken.
Therefore you need to prove, on the balance of probabilities, that you are a person of normal fortitude, that you suffered a recognised psychiatric illness and that the treating doctor could have reasonably foreseen, in the circumstances, that you would suffer a recognised psychiatric illness, if they did not take reasonable care. You also need to prove that the treating doctor owed you a duty of care, that they breached their duty of care and that the breach caused your recognised psychiatric illness.
Pursuant to the legislation, the circumstances to be considered are:

whether the mental harm was caused by sudden shock;
whether you witnessed someone being “killed, injured or put in peril“;
the circumstances of the relationship and the person who was “killed injured or put in peril”; and
whether there is a prior relationship between you (the plaintiff) and the person who caused the death or injury (the defendant).

Recognisable psychiatric illness
The Courts have distinguished between emotional distress and normal grief reactions and what is known to be a recognisable psychiatric illness. In order to prove that you have suffered a recognised psychiatric illness, you would need to undergo an assessment by an expert psychiatrist. Examples of conditions that may be considered to be a recognised psychiatric illness include things like depression, anxiety and adjustment disorders.
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 What do I need to prove in a medical negligence claim for psychiatric injury? appeared first on Turner Freeman Lawyers.

An important part of preparing wills for parents or potential parents is the naming of one or more guardians for their current or future children.
Deciding who should be responsible for your children upon your death can be daunting to think about, but it allows you to be prepared for your children should such situation arise.
Ordinarily, both parents are responsible for the care of their children under the age of 18, unless this has been altered by a Court order.  If one of the parents die, the surviving parent takes over this role.
Where guardians are appointed by both parents in a deed or in their will, then those guardians act jointly after the death of the surviving parent.
If a dispute arises, the guardian or any authorised person may apply to the Court and the Court can make various orders relating to the parent and/or guardian. The Family Law Act 1975 requires the Court to act in the best interests of the child when making a decision that affects the child.
Testamentary guardianship ends when the child reaches the age of 18 years.
The testamentary guardian is responsible for the daily care as well as the long-term decisions, such as schooling, extra-curricular activities and health care, for the child.
The executor of your will also has the ability to hand over funds allocated for your children to the guardian to be used for that child’s maintenance education or advancement in life.
You should consider the following when determining who to appoint as the testamentary guardian in your will:

Your relationship with the proposed guardian;
The proposed guardian’s relationship with your children;
The thoughts and views of the proposed guardian- have you discussed it with them?
The thoughts and views of your children – you may wish to discuss the matter with your children if you deem it appropriate in the circumstances – what do they think?
Your executor’s relationship with your proposed guardian – will they be able to work effectively together?
The proposed guardian’s lifestyle – where they live, their family arrangements, financial position, etc;
What if that guardian cannot or does not want to act, who would you name as a backup?

Appointing a testamentary guardian in your will is just one of the many important considerations when preparing a will. Contact us now on 8213 1000 to discuss further.
The post Naming a guardian for your children in your Will appeared first on Turner Freeman Lawyers.

Health information seminar in Logan
Please join us for a FREE community health information seminar at Logan Diggers Services 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:   Wednesday, 28 August 2019
Time:  10 am to 11:30 am
Venue: Logan Diggers Services Club, 42-48 Blackwood Road, Logan Central, QLD, 4114
RSVP:  by 21 August 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Logan morning tea appeared first on Turner Freeman Lawyers.

South Australian court awards record $3m asbestos payout in precedent-setting victory for home renovators
An Adelaide man has been awarded a record compensation payout of $3,077,187 after being diagnosed with a rare form of mesothelioma — an aggressive and incurable cancer — caused by exposure to asbestos dust, including during renovations on his first home.
The South Australian Employment Tribunal judgment has significant implications for “third wave” asbestos victims — those exposed to in-situ asbestos products in homes, workplaces, and the
community — finding that James Hardie had failed to properly warn the public about the ongoing risks posed by their asbestos cement products.
“This landmark judgment is not only significant because it has awarded an Australian-record for asbestos compensation, but because it highlights the failure of James Hardie to warn home renovators and others of the ongoing risks posed by asbestos products,” Ms Hoffman said.
Mathew Werfel, 42, who lives in Adelaide’s northern suburbs with his wife Jenny and three daughters, aged 10, 7 and 6, was diagnosed with the terminal cancer after discovering a lump in his groin in 2017. Since then he has undergone multiple major surgeries, along with aggressive rounds of radiotherapy and chemotherapy.
Mr Werfel was first exposed to asbestos as a teenager, while working for a fencing contractor after leaving school. He was subsequently exposed during home renovations, including when he sanded and painted the walls of his first home in Adelaide’s northern suburbs, which he didn’t realise were constructed from asbestos cement sheets.
In addition to awarding compensation for pain and suffering, future economic loss, medical expenses, and loss of life expectancy, Judge Leonie Farrell imposed exemplary damages on the company, saying the court needed to issue a deterrent for corporate actions that put commercial gain ahead of people’s lives.
“[James Hardie] breached its duty of care to a large class of Australians, of which Mr Werfel was a member,” Judge Farrell said. “The magnitude of the risk of members of this class contracting mesothelioma was vast. The consequences of the risk were the deaths of many Australians.”
Judge Farrell also highlighted James Hardie’s failure to properly warn the public of the risks still posed by its products, saying the company “did so purely for commercial gain”. “Part of the conduct complained of in this case, however, is still occurring, that is the lack of warning to the general public concerning the ongoing risk of the dangers of [James Hardie’s] product in thousands
of Australian homes,” she said.
Mr Werfel welcomed the outcome of the case, but said he feared many home renovators were still being unknowingly exposed to asbestos products. “On the one hand, this outcome is a great relief, knowing that my family will be taken care of,” he said. “It is great to have a judge look at the facts and say that yes, they had a duty of care to me, they breached that duty, and the result was me getting this terrible disease.
“But it’s heartbreaking to think how many people continue to be exposed, without their knowledge, to asbestos in their homes and workplaces.
“The company should be running a massive public awareness campaign that lets people know just how much of these asbestos products are still out there, what to look out for, and how to stay safe around the home.
“They need to take responsibility for their past actions, not just by compensating victims, but taking every step possible to stop other Australians from being exposed to asbestos.” Mr Werfel’s solicitor, Turner Freeman Lawyers partner Annie Hoffman, said James Hardie had been the primary manufacturer of asbestos building products in South Australia, which can still be found in
thousands of homes and workplaces.
“Unlike the people who were exposed to asbestos during mining, manufacturing, or construction, many home renovators have no idea they were exposed to asbestos until years later when they are diagnosed with mesothelioma or another asbestos related disease.
“This case confirms that James Hardie’s duty of care didn’t end when it sold those products, it continues even decades later as tradespeople, homeowners, and others are exposed to those building materials.
“The decision to also award exemplary damages — an additional punishment aimed at sending a message of deterrence — highlights the court’s view that James Hardie has an ongoing duty of care to properly warn the public about the dangers of in-situ asbestos products.”
The post South Australian court awards record $3m asbestos payout appeared first on Turner Freeman Lawyers.

Under the Workers Compensation Scheme, when a worker suffers an injury which causes them to take time off work, they receive weekly payments from the workers compensation insurer.
These weekly payments are not paid at the full amount that the injured worker was receiving prior to their injury but calculated as a percentage of their pre-injury average weekly earnings (PIAWE).
Calculating PIAWE
Under the Workers Compensation Act 1987, an injured worker is entitled to be paid up to 95% of their PIAWE for the first 13 weeks that they are off work. Following this, an injured worker is entitled to be paid up to 80% of their PIAWE providing they are working less than 15 hours per week. If they are working more than 15 hours a week but not working full time, the workers compensation insurer will top up their weekly payments so that they receive 95% of their PIAWE.
The PIAWE is calculated by taking into consideration a number of factors.
The number of weeks that need to be included in the calculation differs, depending on how long the injured worker has been employed with their employer. If the injured worker was working for their employer for more than 52 weeks before they were injured, their PIAWE is calculated over those 52 weeks prior to the date of their injury.
If the injured worker was working for the employer for more than 4 weeks but less than 52 weeks, the PIAWE is calculated over the time they were working with that employer.
It the injured worker was working less than 4 weeks at the time of their injury, the PIAWE is calculated as based on what they could reasonably have expected to earn had they not been injured.
If however, during the relevant period of time, the injured worker’s circumstances change, causing their weekly wages to be either increased or reduced, the relevant period becomes the date from when that change took effect. Examples of changes in circumstances include if they alter their usual hours of work, such as changing from part time work to full time work, if they alter the nature of their work with their employer, of if they receive a promotion or demotion.
Leave taken during the relevant period of time also needs to be considered whereby weeks that an injured worker received paid leave are included whereas weeks that an injury worker was on unpaid leave are excluded in the relevant period of time.
Once the relevant period of time is determined, the workers compensation insurer needs to include the injured worker’s base salary, overtime and shift allowances, piece rates, commissions, non-pecuniary benefits (residential accommodation, use of a motor vehicle, health insurance or education fees) and any salary sacrifice arrangement.
All the relevant information required can be provided by the employer and the insurer will calculate the PIAWE based on that information.
If an injured worker does not agree with how their PIAWE has been calculated and believes that it is incorrect, they can seek a review of the calculation to be completed independently. We are able to assist with these reviews.
The post Pre-injury average weekly earnings appeared first on Turner Freeman Lawyers.

Health information seminar in Gympie
Please join us for a FREE community health information seminar in Hervey Bay.
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:   Monday, 5 August 2019
Time:  10 am to 11:30 am
Venue: Gympie RSL, 127 Mary Street, Gympie, QLD, 4570
RSVP:  by 29 July 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Gympie morning tea appeared first on Turner Freeman Lawyers.

Health information seminar in Hervey Bay
Please join us for a FREE community health information seminar in Hervey Bay.
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:   Wednesday, 1 August 2019
Time:  10 am to 11:30 am
Venue: Harvey Bay RSL, 11 Torquay Road, Pialba, QLD, 4655
RSVP:  by 25 July 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Hervey Bay morning tea appeared first on Turner Freeman Lawyers.

When medical treatment does not go to plan, it can have a life-changing effect. Choosing the appropriate forum to air concerns can be difficult and depends on the circumstances of the case.  Turner Freeman has a long history of advising clients in relation to their healthcare rights and legal options.
The first, and perhaps most commonly discussed, option is a claim in medical negligence. In order to succeed in such a claim, it must be established that the practitioner’s treatment fell so far below the accepted standard of care that it amounted to a breach of duty of care. You must then show that the breach caused you to suffer a personal injury by establishing that it is more likely than not that you would have avoided your outcome if you had received an alternate course of treatment. Finally, you must show that you have suffered some harm or damage. Obtaining supportive expert evidence from an experienced practitioner is the key to establishing negligence and succeeding in a claim.
One of the difficulties in establishing negligence is satisfying that the specific breach of duty caused the particular harm alleged.  Sometimes an expert cannot provide supportive evidence linking the breach of duty to the damage.
In other cases, it might be that the particular conduct, for example poor bedside manner, was disappointing but cannot be said to be a breach of duty of care.
The second option available is to make a complaint to the Health Care Complaints Commission (‘HCCC’). The HCCC is a NSW government body. Its role is to investigate complaints made about healthcare practitioners or facilities where issues in relation to public health or safety have been raised. The HCCC has powers to do what a medical negligence claim cannot do – it can and will make findings and orders which can have an impact on a practitioner’s ability to practice medicine. Such orders can include cancelling or imposing conditions on a practitioner’s registration.
Recently, the HCCC investigated a number of complaints made regarding Dr Richard Reid. Dr Reid was a gynaecologist who treated women for pelvic organ prolapse and resulting incontinence issues. He was found guilty of professional misconduct in relation to his recommendation and consent for surgery using a type of mesh device known as “Tissue Fixation System”. By the time the HCCC handed down its decision, Dr Reid had retired from practice. The HCCC noted that if Dr Reid had still been registered, it would have cancelled his registration to practice medicine. It ultimately made an order disqualifying Dr Reid from applying to practice for 5 years.
The third option is only available when concerns are raised with someone’s treatment after they have died. If the death was suspicious or reportable, it may be the subject of a Coronial Inquest.  The role of a Coroner is to investigate a person’s death and make findings as to the deceased’s identity, date and place of death, cause of death and the manner or circumstances surrounding the death.
At the end of an Inquest, a Coroner may make recommendations if they are of the view that healthcare systems or procedures contributed to the manner or cause of the death. Those recommendations are made in the hope that they will bring about change and avoid future deaths.
There was an inquest into the death of Ahlia Raftery, who died on 19 March 2015 while she was a patient at the Mater Mental Health Unit. Due to the circumstances of her death, the Coroner made a number of recommendations to the Hunter New England Health District in relation to amending local procedures and policies, ensuring staff are adequately trained in mental health units and developing policies relating to observations of patients in mental health units.
Health and medical law is complex. It is important to get advice in relation to your legal rights after unexpected medical outcomes so that you can make an informed decision about the right forum to pursue any concerns.
The post My medical treatment didn’t go to plan. What do I do? appeared first on Turner Freeman Lawyers.

The 2019 Women’s World Cup has recently finished, with the USA taking out the title. Turner Freeman Lawyers is a proud supporter of Women’s football, being a platinum sponsor of Annerley Brisbane Women’s Premier League top team and reserves sides.
Annerley Football Club has a strong history of over 60 years of women’s football.
Turner Freeman Lawyers has one of its own playing in the reserves side. Jenna Hutchinson Partner and Head of our Qld Wills and Estates Department is a defender in the team.
With the finals fast approaching we wish the Annerley women all the best for the rest of the Season.
With the same colours as Turner Freeman Lawyers we think it’s a sponsorship made in heaven.
We’re Blue, We’re White, We’re Dynamite!
Turn to Turner Freeman for all your legal needs!

The post We’re Blue, We’re White, We’re Dynamite appeared first on Turner Freeman Lawyers.

Health information seminar in Bundaberg
Please join us for a FREE community health information seminar at the Brothers Sports Club.
More information about this event can be found on the Seminar Invitation.

Asbestos Morning Tea Invitation – Bundaberg
Representatives of Turner Freeman Lawyers and the Asbestos Disease Support Society will be available to speak with you.
Date: Wednesday, 31 July 2019
Time: 10 am to 11:30 am
Venue: 130 Takalvan Street, Bundaberg, QLD 4670
RSVP: by 24 July 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Bundaberg morning tea appeared first on Turner Freeman Lawyers.

Health information seminar in Gladstone
Please join us for a FREE community health information seminar at the Harvey Road Tavern in Clinton.
More information about this event can be found on the Seminar Invitation.

Asbestos Morning Tea Invitation – Gladstone
Representatives of Turner Freeman Lawyers and the Asbestos Disease Support Society will be available to speak with you.
Date: Tuesday, 30 July 2019
Time: 10 am to 11:30 am
Venue: 1 Harvey Road, Clinton, QLD 4680
RSVP: by 23 July 2019. P: 1800 776 412 or email: [email protected]
Morning Tea provided for your enjoyment.
The post Gladstone morning tea appeared first on Turner Freeman Lawyers.

Claim made by worker for deterioration in noise related deafness and who earlier received a lump sum payment for non economic loss for that injury
Return to Work Act 2014, section 22 and 58
On application of the 5% impairment threshold for section 58 compensation, is the pre-existing noise related deafness to be deducted from the current noise related deafness?

Mr Onody made a successful workers compensation claim for noise induced loss (NIHL) in 1996. He received compensation for a 6% whole person impairment (WPI), in the amount of $8,310.60.
He continued working in noisy work, and made another claim in 2015. His hearing loss was assessed by an ear, noise and throat specialist as 9% WPI. Section 58 of the Return to Work Act 2014 (RTW Act) provides for non economic loss compensation for a 5% or more WPI. Mr Onody sought compensation for a 9% WPI, in the amount fixed by the workers compensation Regulations for that impairment, of $18,756.00.
ReturnToWorkSA (RTWSA) determined that Mr Onody’s impairment for his deterioration in noise related deafness was 3% WPI (9% WPI less 6% WPI), and because the impairment did not meet the 5% WPI it determined Mr Onody had no section 58 entitlement.
Mr Onody filed a dispute in the SA Employment Tribunal. He argued that he was entitled to compensation for a 9% WPI less the amount of earlier compensation paid ($18,756.00 less $8,310.60, being $10,843.00).  The dispute arises on interpretation of provisions in RTW Act governing WPI assessments (section 22) and WPI compensation (section 58), and the Impairment Assessment Guidelines for injuries which are an aggravation, exacerbation, deterioration or recurrence of a prior (work) injury . The Full Bench of the Tribunal held in favour RTWSA, finding that:

The deterioration in Mr Onody’s hearing loss since 1996 constituted an ‘injury’; and
For section 58 compensation, the deterioration/injury had to reach 5% or more WPI. The deterioration in NIHL was 3% WPI. Accordingly, the Full Tribunal found Mr Onody was not entitled to section 58 compensation.

Dissatisfied with the result, Mr Onody applied for, and was granted, leave to appeal the decision in the Full Court of the Supreme Court of South Australia. The issue for determination was whether or not the Tribunal was correct in holding that Mr Onody had to reach 5% WPI for his deterioration/injury. By majority judgement (2-1), the Full Court held in favour of Mr Onody, finding that:
For section 58 compensation, the gross hearing loss impairment [9% WPI] is to be used, and the amount of non economic loss compensation paid is to be deducted [from the entitlement payable for a 9% WPI].
The case is a win for workers. It means that a worker will have an entitlement to compensation for non economic loss for a deterioration in noise related hearing loss as long as the overall noise deafness is 5% WPI, including any pre existing noise deafness. Compensation is calculated as the current monetary entitlement based on the WPI less the amount previously paid for non economic loss.
Contact Turner Freeman’s experienced lawyers for a no obligation assessment of your hearing loss claim.
The post Restriction of lump sum compensation payments for hearing loss claims appeared first on Turner Freeman Lawyers.

What is the NDIS?
The National Disability Insurance Scheme (NDIS) provides support to people with a disability, their families and carers. It is jointly governed and is funded by the Australian government and participating states and territory governments.
The main component of the NDIS is individualised packages of support known as “participant plans” for people with disability whom are participants of the scheme. The NDIS also has a broader role in helping people with disability to access the community, to provide assistance with their activities of daily living and to help improve their functional capacity by providing funding for therapies specific to the participant’s disability.
Accessing the NDIS
To become a participant of the scheme, an applicant must complete an Access Request Form in writing or verbally and it will be determined by the National Disability Insurance Agency (NDIA) if the applicant fulfils the eligibility criteria for the scheme.
The eligibility criteria is set out in the National Disability Insurance Scheme Act 2013. The legislation sets out the criteria for eligibility such as age, residency and the disability and early intervention requirements.
Put simply, the applicant must be under the age of 65, they must reside in Australia as an Australian citizen, or be the holder of a permanent visa or a special category visa. They must also satisfy the other requirements in relation to residence set out in the National Disability Insurance Scheme Rules. Once a participant fulfils the age and residence requirements they then must fulfil the disability requirements set out in section 24 of the NDIS Act or the early intervention requirements set out in section 25 of the NDIS Act.
Appealing the NDIA’s decision about a participant plan
A new NDIS plan
When an applicant of the scheme has fulfilled the criteria for access, the NDIA will grant the applicant access to the scheme. They will organise an appointment for the new participant to meet with a Local Area Coordinator or a planner and the participant plan will be drafted. The plan is developed according to the participant’s needs for funding and the participant must take evidence to the meeting to show why they require the requested supports in their participant plan. The requested supports are assessed by the NDIA with reference to section 34 of the NDIS Act , which sets out the criteria for funding for reasonable and necessary supports.
Requesting a review
If a participant is not happy with their participant plan, they then can request the NDIA to review their plan. There are two forms of internal review. A plan review can be conducted at any time, which is set out under s 48 of the NDIS Act. Alternatively, an internal review can be requested within 3 months of receiving the participant plan from the NDIA. An internal review is set out under s 100 of the NDIS Act. 
Internal Review
To request a “section 100”  internal review the participant must complete a form called an Application for a Review of a Reviewable Decision or they will need to contact the agency verbally or write an email or letter explaining why they want their plan to be internally reviewed.
It is important that the participant attaches all supporting documentation that they have available such as medical reports and therapy reports which provide evidence as to why the participant requires funding at the requested level for that particular participant support.  If there are multiple supports that are required then supporting evidence should be provided for each requested support.
When the NDIA receives the internal review application, the CEO delegate of the NDIA must then internally review the decision and then decide to either maintain the original decision or change the decision. If the participant is still not happy with the NDIA’s new decision, they can make an application to take the matter further to the Administrative Appeals Tribunal. This is known as the external review process.
External Review
The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. We recommend that participants who want to lodge an external review application seek legal advice.
If a participant is not happy with the internal review decision, section 103 of the NDIS Act includes that an Application can be made to the Administrative Appeals Tribunal for Review. This must be done within 28 days.  All supporting evidence much be attached to the application inclusive of the internal review application that was provided to the NDIA and the agency’s decision in writing.
If an application is lodged after 28 days, an Extension of time Application is required to be completed and lodged first. This must explain the reasons why the Application for Review is late.
As soon as the tribunal has received and processed an application, a case plan is then generated by the AAT for the matter to be taken through the external review process. Generally, there are a number of case conferences that take place and then the matter is prepared for a conciliation. If the parties cannot reach an agreement by way of conciliating, then the matter is set down for hearing.
Contact
For further information, please contact Dominique McGovern on 02 42205250 and have a listen to our NDIS podcast on 2GB.
The post NDIS Appeals appeared first on Turner Freeman Lawyers.

Whenever we are looking for someone to work on our cars, care for our children, treat our illnesses and the like, we tend to place a lot of value on “the vibe” we get from a particular place or person. At Turner Freeman we have dozens of offices across Queensland and interstate full of motivated, passionate and impressive people!
With that in mind we cannot help but share our enthusiasm and pride when it comes to our dedicated staff and we would like to give you a small insight into who you are dealing with when you “Turn to Turner Freeman”.
Meet our personal injury & TPD team in Toowoomba!
Darren Whitlegg
Senior Associate

 
How long have you worked in law?

I commenced with Turner Freeman on 3 January 2012.

What is your favourite area in which you practice & why?

I enjoy acting for injured people and advising them about their rights and assisting them to seek out and receive the compensation which they are entitled to and often making a real difference in their lives.

Who would you most like to meet in person and why?

I’m a bit of a cricket tragic and I was a huge fan of Shane Warne. He was the best bowler I’ve ever seen and he seems like he would be an interesting person to meet.

Where is your favourite place to visit (local or International)?

Tasmania is so beautiful and I love hiking through the mountains.

To meet our experienced lawyers and request information about our available legal services, or to discuss your personal circumstances, please do not hesitate to contact Turner Freeman Lawyers on (07) 3025 9000.
Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.
The post Our people behind the scenes appeared first on Turner Freeman Lawyers.

As many drivers would be aware, there were significant changes to the compulsory third party (CTP) scheme which came into effect on 1 December 2017.
The Insurance industry lobbied heavily for the changes and in introducing the new scheme, the New South Wales Government cited a need to reduce green slip premiums.
Although there has been a slight drop in premiums, it is the writer’s experience that persons injured on New South Wales roads are now being paid far less compensation than even the Insurers and New South Wales Government forecasted. That is, it would appear that very little of each dollar in premiums paid are being returned to injured persons whom the scheme purports to protect.
Due to extremely harsh legislation which essentially determines that all but the most serious of injuries are “minor injuries”, the majority of injured road users are prevented from accessing treatment after 6 months have elapsed from the motor accident.
It is the writer’s experience that after accepting the initial claim, Insurer’s seem to take very little action in relation to their files and simply await the expiration of the 6 months. There appears to be very little investigation made with the Claimant’s treating doctors as to the diagnosis, what investigations may be required, and what treatment is required. Once the 6 months expires, the Insurers simply close the file.
Accessing Treatment
For the above reasons, it is crucial that Claimant’s act with urgency when injured in a motor vehicle accident. There can be no delay in seeking medical treatment and advice. Claimants should consult their doctors in relation to what investigations may be required and what treatment they need to undergo in order to effectively recover. All requests for treatment and investigations should be lodged on the Insurer without delay so that it may be considered for approval.
Put simply, if there is no request for the treatment then the Claimant will not be entitled to anything. Even when treatment is requested, it is our experience that there are usually significant delays in the Insurer approving that treatment and more often than not, the treatment is refused without good reason despite it being recommended by a medical professional and the Insurer having no contradictory medical evidence.
Legal Advice
There has certainly been a push by the Insurer’s and the New South Wales Government to prevent Claimants obtaining assistance from lawyers in pursuing their statutory entitlements under the scheme.
Unfortunately, in circumstances where the Insurer regularly denies treatment, Claimants are at a disadvantage trying to navigate through complicated dispute resolution processes with the Insurer. There are steps that can be taken to challenge the Insurer’s decision however this requires careful planning and persuasive submissions. Often, the Insurer will reject the Claimant’s application for a compulsory internal review and the matter will need to be referred to the Dispute Resolution Service.
Quite often, it is found that the Dispute Resolution Service will actually overturn a decision made by the Insurer particularly where it relates to a denial of treatment. Accordingly, Claimants should ensure that they do not delay when challenging an Insurers decision and it is highly recommended that Claimants seek legal advice for assistance with these matters.
It is also important to remember that strict time frames apply to requests for review of an Insurer’s decision as well as referral to the Dispute Resolution Service. If for example, a Claimant does not seek an internal review within 28 days of the Insurers decision to deny treatment, the Insurer is not obliged to consider any future request. If an internal review is not conducted then the Claimant cannot refer the matter to the Dispute Resolution Service as the Dispute Resolution Service will find that they do not have jurisdiction. In those circumstances, the only way to challenge the Insurer’s decision would be to commence action in the Supreme Court. Unfortunately, the expense of such action generally makes it non-viable.
Conclusion
Due to the limitations of the current scheme, Claimant’s should seek medical advice immediately after the accident and ensure an Application for Personal Injury Benefits is lodged within 28 days of the accident, particularly where there is a claim for loss of wages. It is important that Claimants liaise with their doctors to ensure that treatment and investigations are commenced as soon as possible.
Due to the complicated processes and the apparent reluctance of Insurers to be proactive in assisting Claimants, it is recommended that Claimants seek legal advice as soon as possible after the accident for assistance with lodging their application and so that any treatment disputes can be appropriately challenged within their statutory time frames.
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What is a caveat?
A lady died, leaving a will made eleven years prior, naming her friend’s daughter as her executor and beneficiary of her estate.[i] Nine years before that will, she had made an earlier will in which she named her niece as her executor and beneficiary.
The friend’s daughter sought a grant of probate of the last will, however, the niece had filed a caveat in the Supreme Court to prevent probate from being granted.
The niece said that probate of the last will should not be granted on the ground that circumstances existed that gave rise to a suspicion that the lady did not know and approve the contents of her last will.
The niece argued that the following circumstances were relevant in giving rise to the suspicion:

the lady executed her will at a time that she was distressed as a result of the death of her sister-in-law and the terminal illness of her brother who was in hospital, and therefore had “overwhelming angst regarding death and illness”;[ii]
the lady had an argument with the niece four days before she made the last will;
no solicitor witnessed the signature of the lady’s last will;
her will was executed urgently with no reason other than her “vulnerability and fragility given the recent death of her sister-in-law and the looming death of her brother”;[iii]
the lady’s signature was not on the first page of the will; only the second;
the last will left her entire estate to the friend’s daughter whereas the previous will left it to the niece, and this was done without “explanation or forewarning”;[iv]
notes of the law clerk’s attendance on the lady suggested she did not properly understand the contents and effect of her last will;

For a person to file a caveat they must first have standing (ie. must be affected by or an interested party to the matter) and then must have’ grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on by him or her’.[v] In other words, the person filing the caveat must be able to give enough factual details, which on the face of it, show grounds of the objection to the grant.
If a deceased person did not know and approve the contents of his or her will, then that will cannot be valid. The niece sought to argue that the lady’s will could not be valid for this reason.
The law says that where there are no suspicious circumstances to suggest the will may not have been fully known or approved by the willmaker (ie. “the testator”), proof of the testator’s capacity and of the will being properly executed creates an assumption that the testator knew and approved the contents of the will.[vi]
However, if a suspicious circumstance exists, then that assumption does not arise. It is then the person who is seeking to prove the will or obtain probate who must remove the suspicion and prove that the testator knew and approved of the contents of the will.[vii]
Meagher JA in Tobin v Ezekiel said “[w]hat is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case”[viii].
In this case, the Court found as follows:

The changes to the lady’s will were a result of her falling out with the niece and she wanted to make those changes as soon as possible after the argument;
This change was made with explanation. The clerk’s attendance notes stated “Niece never been financially dependent want to remove her from will due to family upset”;[ix]
The lady did not need to ‘forewarn’ the niece that she intended to change her will.
The lady’s explanation for changing her will did not raise suspicion that she “did not fully or properly comprehend the significance of her actions or the effect of the will’;[x]
The fact that no lawyer was present when the lady executed her will or that no solicitor witnessed her signature was not a cause for suspicion;
The will was executed in accordance with law;
The lady’s wishes in her will were clear and the will was simple in form;
The clerk’s attendance notes record discussions about various aspects of the will suggesting the lady was aware of and understood it;
The fact that the lady’s sister-in-law had died and that her brother was very ill did not appear to be a suspicious circumstance. McMillan J said “[i]f it is relevant at all, it provides an understandable reason for the deceased ensuring her testamentary intentions were updated and in order.” [xi]

The Court therefore held that the niece’s grounds of objecting that probate be granted of the lady’s last will did not provide a sufficient factual basis to establish a prima facie case that circumstances existed which gave rise to a suspicion the lady did not know and approve the contents of her last will.
She was unable to give enough factual details, which on the face of it, showed grounds of the objection to the grant, being that the lady did not know and approve the contents of her last will. The caveat was struck out.
[i] The case discussed is Re Kohout; Rubinstein v D’Aquino [2018] VSC 686.
[ii] Re Kohout; Rubinstein v D’Aquino [2018] VSC 686, [5].
[iii] Ibid.
[iv] Ibid.
[v]    Moran v Place [1896] P 214, 216–17 (Kay RJ) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242] cited in Re Kohout; Rubinstein v D’Aquino  [2018] VSC 686, [6].
[vi] See for example Bailey v Bailey (1924) 34 CLR 558, 570–1.
[vii] Ibid.
[viii] (2012) 83 NSWLR 757, 771 [47].
[ix] Re Kohout; Rubinstein v D’Aquino [2018] VSC 686, [13].
[x] Ibid [14].
[xi] Ibid [19].
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Often clients ask why should I write a Will when it can be contested anyway.  Whilst Wills can be contested on the grounds of incapacity, undue influence or by someone who wants to make a family provision claim pursuant to the Succession Act 2006 the class of person entitled to make a claim is limited and the person making the claim must prove their case.
Incapacity
In the case of incapacity, the person making the claim must be able to prove that the Testator (person who made the Will) did not have the capacity to understand the effect of the Will at the particular time that the instructions were provided and the time the Will was signed. This can be very difficult to prove as medical evidence should be provided. If there are doubts in relation to the Testator’s capacity, the Solicitor preparing the Will can obtain a report from a Doctor in relation to capacity which will assist in defending any potential claim on the grounds of incapacity.  Additionally, the Solicitor should prepare comprehensive file notes when taking instructions for the Will which can also be used to defend a claim.
In relation to a claim for undue influence, it can be very difficult for a potential claimant to successfully prove that someone exercised undue influence on a Testator and that the Will did not reflect the Testator’s wishes. Again a prudent Solicitor will ensure that no one else is present when a Will is made and question the Testator as to their wishes. This evidence can then be used to defend a claim.
In relation to family provision claims, a claim can only be made by an “eligible person” as defined by the Succession Act 2006. This limits the category of people entitled to make a claim. For example distant relatives are excluded unless they were dependent on the deceased and lived with the deceased. It is also necessary for a claimant to prove that they have financial need and that inadequate provision was made for them in the Will. The onus is on the claimant to prove these matters to the Court.  The Court will not simply disregard the Testator’s wishes and, more recently, the Courts have been more reluctant to Order substantial amounts of money to Plaintiff’s.
Ensure your asset goes to the right person
Therefore, a properly prepared and well considered Will is effective in greatly increasing the chances of your assets being distributed in accordance with your wishes rather than simply allowing your assets to be distributed according to legislation on the grounds of intestacy. Additionally, it is still possible for a family provision claim to be made against your Estate if you do not have a valid Will and the potential claimant is not a beneficiary pursuant to the intestacy provisions of the Succession Act.
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Finally, the Limitation Act 2005 and Civil Liability Act 2002 (“Acts”) came into effect on 1 July 2018.
These Acts now empower survivors of historical child sexual abuse to bring civil proceedings for damages in respect of such abuse.
Prior to these changes to the legislation, survivors of historical child sexual abuse could not bring an action in court claiming compensation for injuries suffered due to the abuse. This was because the limitation period to bring these claims was 3 years from the date of abuse and most historical abuse occurred more than 3 years ago.
Prior to the changes to these Acts, survivors of historical abuse brought their claims against institutions and settled those claims by way of a settlement agreement in exchange for a sum of money by way of compensation for the abuse.
These settlement agreements presented a bar to survivors of historical abuse to bring an action in Court, however, these settlement agreements and the compensation that they referred to, in most cases, were not reflective of the abuse that the survivors of historical abuse endured.
These settled claims clearly favoured the institution and/or perpetrator responsible for the abuse.
To remedy this injustice survivors of historical sexual abuse that settled their claim and signed a settlement agreement may now seek leave of the Court to set aside the settlement agreement and to bring an action in Court against the responsible perpetrator/entity.
A number of the applications seeking leave of the Court have been dealt with by the District Court and there is so far one published judgment: JAS v Trustees of the Christian Brothers [2018] WADC 169 delivered on 11 December 2018.
In the JAS v Trustees of the Christian Brothers decision, seven relevant matters were considered and these were as follows:

The settlement agreement had to be related to historical sexual child abuse as defined by the said Limitation Act.
When the survivor of historical sexual abuse entered into the settlement agreement, the limitation period of 3 years had already passed and therefore, they could not bring an action in Court against the responsible perpetrator and/or entity.
Whether it was just and reasonable for an order of the Court to be made granting leave to the survivor of historical sexual abuse to commence an action in Court.
At the time the survivor of historical sexual abuse entered into the settlement agreement, the claim was statute barred which meant that his/her bargaining position was curtailed and he/she had no choice but accept what was offered without what was necessarily being a reflection of his/her proper entitlement to compensation if successful.
The survivor of historical sexual abuse entitlement to compensation, had never been decided on the actual merits of his/her claim.
Any payments that have already been made to the survivor of historical sexual abuse has to be deducted from any compensation awarded by the Court.
The perpetrator and/or institution is not financially disadvantaged by having made the payment under the settlement agreement.

As a result of this case, survivors of historical abuse that entered into a settlement agreement to receive compensation prior to as of 1 July 2018, may ask the Court for leave to set aside the settlement agreement and commence a claim for damages for personal injuries suffered as a result of the historical sexual abuse.
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