Many people are not aware that if you are a victim of a crime and have suffered injury, you may be entitled to compensation from the offender directly.

If the perpetrator is convicted of a crime which has caused you an injury, you are able to make an application under the Sentencing Act for compensation. Injuries can be physical or psychological. An application may be made at the time of sentencing, or within one year of the date of the sentence. Making a claim under the Sentencing Act provisions can, at times, avoid the need for a complex and expensive separate civil claim.

Of course, the successful recovery of the compensation is only possible where the offender has assets to satisfy the order.

We have successfully assisted victims obtain compensation through the Sentencing Act claim process. If you have any queries, contact our free Adviceline on 9321 9988 to speak to a solicitor.

After the State Government recently announced that $471.5 million would be taken from the worker’s insurance scheme over 4 years, WorkSafe CEO Greg Tweedy has announced that he will not seek a renewal of his contract: http://www.theage.com.au/victoria/resignation-adds-to-worksafe-woes-20120111-1pvgu.html

Given the instability at WorkSafe and budget cuts it is vitality important that injured workers obtain experienced legal representation. If you have been injured at work, please call Adviceline Injury Lawyers on (03) 9321 9988 or 1300 MY INJURY to speak directly to a lawyer.

The Coroner has made findings that the death of baby Poppy Hapgood was preventable, and was a result of inadequate medical care provided by the Royal Women’s Hospital.

Poppy’s mother, Stacey Barton, said that the finding was heart-wrenching, though expected. In the course of the inquest, the hospital gave evidence about changes that have been made to prevent a similar tragedy occurring. Ms Barton was hopeful that the changes could help others, but expressed scepticism that they would be properly implemented, and concern about the State Government’s plan to further reduce nursing numbers.

Ms Barton and her partner were assisted by Andrea Tsalamandris of Adviceline Injury Lawyers at the inquest and also with respect to a civil claim for compensation against the hospital. The civil claim has settled on a confidential basis.

The Coronial finding was given on 14 December 2011, and the full document will be made available on the Coroner’s Court website shortly http://www.coronerscourt.vic.gov.au/home/case+findings/

In order to succeed in a medical negligence claim, a claimant must demonstrate:

1.     The medical treatment which is the subject of his or her medical negligence claim did not constitute reasonable medical care; and

2.     The negligent treatment caused the claimant to suffer an injury or loss.

This means that as well as proving the treatment was negligent and the claimant has suffered an injury, it must be demonstrated that had the treatment been performed appropriately the claimant’s injuries would have been avoided. This is what lawyers call “causation” and it is often a highly contentious issue in medical negligence claims.

On 24 November 2011 the Supreme Court of NSW handed down the decision of King v Western Sydney Local Health Network [2011] NSWSC 1025 that considered the issue of causation.

In May 2002, Ms Phillippine King, attended Blacktown Hospital (“the Hospital”). She was 14 weeks pregnant. Though it was not the main reason for her attendance, Ms King advised the Hospital that her daughter had been diagnosed with chickenpox that morning.

Chickenpox is caused by Varicella-Zoster Virus (“VZV”). If VZV is contracted by a pregnant woman, it can cause the foetus to contract Congenital Varicella Syndrome (“CVS”), which can inhibit foetal development. The Hospital considered whether Ms King should be given the VZV vaccine (“the Vaccine”), but ultimately she was advised that because her pregnancy was in the second trimester, the vaccine was not required.

Approximately 10 days later, she attended her General Practitioner and was told that she had contracted chickenpox.

In November 2002, Ms King gave birth to the plaintiff, Tamara King (“Tamara”). Tamara was subsequently diagnosed with CVS and commenced proceedings against the Hospital through her mother.

It was claimed that Ms King should have been given the Vaccine upon her attendance to the Hospital and that this would have, on the balance of probabilities, prevented Ms King from contracting chicken pox, thereby preventing Tamara’s injuries.

The Judge agreed that the Hospital had breached its duty of care by failing to advise Ms King of the risks to her unborn child and failing to treat her with the Vaccine.

However, it could not be demonstrated that had Ms King been administered the Vaccine, it would have prevented her contracting chickenpox. It was necessary for this to be established “on the balance of probabilities”, which means, it is more likely than not. The majority of medical evidence in the case only established that it was possible that the Vaccine would have prevented Ms King’s infection, which was not sufficient. As a result, the Plaintiff’s claim failed.

The case highlights the difficulty of establishing causation in medical negligence claims and the need to thoroughly investigate causation issues.

Adviceline Injury Lawyers have settled a claim for a worker who had his right leg amputated following an injury at work. The worker suffered from diabetes and injured his right foot at work as a consequence of being provided with ill fitting boots and also after stubbing his foot on a piece of metal lying across a walk way in the factory. The wound became necrotic and about 5 months later he underwent an operation to amputate his right leg below the knee.

Despite his horrific injury the worker was courageous enough to obtain part time employment a number of years after the operation and get on with his life as best he could. Adviceline Injury Lawyers lodged a serious injury application on behalf of the worker and the WorkCover insurer sensibly agreed that our client had suffered a serious injury. Prior to issuing court proceedings we attended a conference with the Defendant and argued that the injuries were caused by the negligence of the worker’s former employer. A short time after the conference the Defendant made a substantial offer which was accepted by the worker to settle his claim.

Happily, the standard of medical treatment in Australia is generally excellent. Occasionally, however, outcomes are not as the patient hoped. Medical mistakes can have a devastating impact to a patient’s health and confidence in the medical profession.

There is a big difference between a poor outcome and medical negligence. Most bad outcomes are not as a result of a medical mistake. To prove medical negligence, you need to establish that the treatment you received fell below the reasonable standard, and as a result of the negligent treatment, you suffered injury. To claim your pain and suffering damages, you need to further establish that you suffered a permanent significant injury. These can be difficult tests to meet.

Medical negligence cases can be brought against hospitals or medical practitioners individually. Doctors are required to be covered by liability insurance. The first step in investigating a claim is generally to request your medical records, which you have a right to obtain under Victorian law. You have three years from the date you know you were injured through the negligence of another in which to bring a claim, though this period can be extended in limited circumstances.

If you have questions about some medical treatment that you think might be negligent, or would like to investigate a matter further, contact Adviceline Injury Lawyers for free initial telephone advice on 9321 9988.

The County Court has announced that it hopes to be able to reduce the current 12 month wait time for Serious Injury Applications to be heard. Initiatives being introduced in 2012 such as Judge led conferences and and increase in the number of Judges available to hear cases are expected to result in earlier hearing dates being allocated. Cases issued in late 2011 had been given a hearing date up to 12 months later, but the hope is that dates should be able to be allocated for matters to be heard within 3 months, or at least 6 months of issuing.

This is a positive move by the County Court as the Serious Injury Application process is an essential gateway that many injured workers must pass through before they can proceed with a Common Law Claim. Adviceline Injury Lawyers look forward to being able to obtain earlier hearing dates and therefore resolution of claims for their clients.

The Magistrates' Court recently handed down the first judgment under the amended provisions of section 82(2A) of the Accident Compensation Act.

http://www1.workcover.vic.gov.au/vwa/vwa044-022.nsf/docsbyUNID/468894F7020A1649CA25794000802087?Open

At the time of their introduction, it was generally considered that these amendments, which apply to 'mental injury' sustained on or after 5 April 2010, would make it easier for employers to establish that a work-related mental injury was not compensable because it had arisen wholly or predominantly for 'management action' taken on reasonable grounds and in a reasonable manner.

A significant aspect of the amendments was to broaden the scope of activities which can be defined as 'management action' so as to reflect contemporary management practices.

There is now an extensive list of actions which constitute 'management action' in the new section 82(10), and there is also reference to the fact the list is not exhaustive.

The facts in Krygsman-Yeats v State of Victoria were perhaps not ideally suited to test the operation of the amended provisions.

In Krygsman-Yeats, central aspects of the 'management action' which were found to have given rise to the worker's mental injury would likely have been recognised as management action under the 'old' section 82(2A) provisions. It is noted, however, that it was found that the employers actions fell within seven different categories of management action as defined by section 82(10), some of which may have been have constituted management action under the 'old' provisions.

That different actions occurring at different times were found to constitute 'management action' illustrates another feature of the new provisions.

Section 82(10) establishes that the mental injury can be caused by more than one action by management. This provision accords with what the Victorian Supreme Court of Appeal ultimately found to be the correct construction of the 'old' section 82(2A) provision in State of Victoria v Leck.

Prior to the decision in Leck, which was handed down in April 2010, it had been argued that the mental injury could only be wholly or predominantly caused by one management action – not from the combined effect of more than one action by management. Under that construction, it had been easier for a worker to argue that in circumstances where the mental injury had arisen due to a multitude of factors, one particular management action was not the whole or predominant cause.

In Krygsman-Yeats, it was common ground that the worker's mental injury had arisen wholly or predominantly due to management action.

That the employer's reliance on section 82(2A) failed in Krygsman-Yeats illustrates that while 'management action' is now more expansively defined and broadly applicable, the onus remains on the employer to establish both that the grounds for taking the management action and the manner in which the action is conducted are 'reasonable'.

In Krygsman-Yeats, Magistrate Garnett found that while the management action was taken on reasonable grounds, it was not taken in a reasonable manner.

 

The Australian Health Practitioners Registration Authority (AHPRA) has recently determined that Dr John Gunzburg has engaged in unprofessional conduct for his treatment of a patient. Dr Gunzburg is a General Practitioner with an interest in psychotherapy and addiction medicine.

The conduct of Dr Gunzburg had been referred to a Professional Standards Panel following a Coroner’s inquest. His conduct related to treatment he had provided to a young female patient.  At her first consultation with him and at her request Dr Gunzburg prescribed Lamotrigine. He later admitted it was a medication he had not previously prescribed.  Dr Gunzburg prescribed her 100 mg per day, which was double the maximum initial dosage recommended in the literature. The patient developed a life-threatening hypersensitivity reaction to the medication and suffered a rash over most of her body, was bleeding from her eyes, nose and mouth and was then hospitalised. Whilst in hospital she developed an infection (probably enabled by the immune-suppressive effect of the corticosteroid treatment she had received for the hypersensitivity reaction) and she died within a few days. In the coronial inquest, Dr Gunzburg admitted that his initial prescription of Lamotrigine had been ‘a mistake’.

In addition to over-prescribing the medication, Dr Gunzburg was also found to have kept inadequate records of his attendances upon the patient. 

AHPRA reprimanded Dr Gunzburg. It has required him to undertake education training in:

• importance of recording keeping and communication by doctors;
• safe prescribing practices and strategies to manage patient demands.

Although poor record keeping and mistakes in medication prescriptions are not uncommon, referrals to  AHPRA for such conduct, are reasonably rare. It was sadly the tragic death of the patient, and the deep concern of her parents regarding the care provided, that meant this matter was not overlooked. It is hoped that the investigation and findings teach not only Dr Gunzburg, but other doctors, valuable lessons from the tragic death of this patient.

Andrea Tsalamandris of our office assisted the patient’s family at the Coroner’s inquest.

Adviceline Injury Lawyers have settled a claim for a worker who severely injured his back in 2004 while working as a motor mechanic. He injured his back as a result of heavy, awkward lifting of tyres during the course of his employment without adequate lifting assistance or training. As a consequence of the injury the worker required major surgery to his spine in 2007.

The Defendant initially denied that the worker had suffered a serious injury and we issued proceedings in the County Court of Victoria claiming a serious injury certificate for both his pain and suffering and lost earnings. On the day of the court hearing we were able to negotiate with the Defendant and settle the claim for a substantial sum of damages. The claim was settled without the need for the worker to go through a court hearing.

Conciliation can seem confusing and stressful – but it is much easier if you understand the process.

When you are injured at work, you can make a no-fault WorkCover claim. The insurer is then responsible to pay for your reasonable medical expenses and in certain circumstances weekly payments of compensation. However, sometimes the insurer may refuse to accept your claim in the first place. Alternatively, you may have an accepted claim, but the insurer has refused to pay for certain expenses or weekly payments which you believe you are entitled to.

The Accident Compensation Act (the law which covers work injury claims in Victoria) states that the first step in resolving the dispute is to go to conciliation at the Accident Compensation Conciliation Service (ACCS). Conciliation does not cost you any money, and is presided over by a Conciliator whose job it is to bring the parties together for discussions, but who has very limited powers to make decisions.

To request conciliation you need to fill out a Request for Conciliation form. While lawyers typically do not attend conciliations, you can organise for WorkCover Assist, or, if you are a union member, your union representative or Union Assist, to attend the conciliation with you. There is no charge for these services.

At the conciliation various outcomes are possible:

• The insurer may accept your claim or expense. Excellent!
• The insurer may offer a compromise for a limited period. Be aware that if you accept the compromise you may not be able to claim further payments or expenses. It is recommended you seek legal advice before accepting a limited period offer
• If there is a medical dispute, the matter may be referred to the Medical Panel. A Medical Panel opinion is binding so it is strongly advised you seek legal advice before going to the Medical Panel
• If the matter can not be resolved at conciliation, the conciliator may certify that dispute has not been resolved despite reasonable steps taken. You may now bring proceedings in the Magistrates Court if you wish to take the matter further.

You are welcome to contact our Adviceline on 03 9321 9988 for free advice at any stage of the conciliation process.

On 24 October 2011, ABC's Four Corners Programme ran a story entitled "Asylum". It covered the very poor conditions in Australia's detention centres and the mental harm that it is causing to long term detainees.  Doctors on the programme said that although most people are mentally resilient, the consequences of long term detention are known to be harmful. Such harm is further exacerbated when the detainees are unable to obtain appropriate psychiatric treatment.

The documentary raises the issue of what legal liability arises from such poor treatment. It is clear that the Commonwealth, in detaining asylum seekers, owes them a legal duty of care. Even if people have arrived here illegally, the Commonwealth must still act reasonably whilst such people are under their care and control.  

In "Asylum" allegations were made of inadequate medical and psychiatric treatment; inappropriate medication given; and insufficient monitoring of the detainees response to medications. If such allegations were raised in Australia's public health system, there would be immediate concern and outrage.

The situation is even worse for the children detained in such facilities.  The AMA has described the mandatory detention of minors as child abuse. 

Just as victims of medical negligence can sue a doctor or a hospital, these detainees have legal rights too if the treatment provided to them is negligent.

Damages claims for detainees are complex. It must be acknowledged that many of the refugees in detention have already suffered considerable upset from traumatic events witnessed in their homeland.  However the Commonwealth can be held liable if it can be proved that the treatment given was unreasonable and caused further psychiatric injury to the detainee.  

Damages claims for such victims may soon flood in to the courts if the treatment the Commonwealth provides to those in mandatory detention does not readily change.

 

Adviceline Injury Lawyers have settled a claim for a worker who fractured his shoulder after tripping over a gas line at work. The fracture required surgery to insert pins into the bone and the worker was left with a large scar down his right arm. The insurer agreed that the injury was a serious injury. The worker alleged that the injury was caused by his employer’s negligence and the matter was settled quickly without the need to go to Court.

Adviceline Injury Lawyers settled a substantial case for an ex-Police officer last week. The Police officer brought an action against Victoria Police for psychological injuries suffered during the course of her employment. It was alleged that she received no or no adequate training, debriefing or counselling following many significantly traumatic events over a 14 year career.

The trial was to be heard in the Supreme Court of Victoria last week and settled on the morning of the trial. The Herald Sun published an article about the settlement [Click here].

WorkSafe has released its latest annual report which reveals a reduction in worker injury rates, but also a drop in worker satisfaction with the management of their claims.

Key figures:

• 10.34 claims per 1,000 workers
• 4.19 Four-week claims per 1,000 workers
• 19 fatalities
• 3.51 Hospital admissions of two or more nights per 10,000 workers
• 72.8% injured worker satisfaction (nearly 7% below target)

Read the WorkSafe annual report here http://bit.ly/nfG6YZ

The Personal Injuries division of Holding Redlich has now adopted the name “Adviceline Injury Lawyers”. We are now practising under this business name as a division of Holding Redlich. You may have noticed that we have had both names operating for the last couple of years, but from now on our personal injuries group will be only under the name Adviceline Injury Lawyers. We have done this to assist us in continuing to grow our personal injuries group and to distinguish the group from Holding Redlich’s national commercial legal practise.

We are still the same team of lawyers and our service to you won’t change. We have also opened a new Springvale Office. We are located at 369C Springvale Road, Springvale and can be contacted on 9321 9886. If this location is more convenient for you, we will be happy for a lawyer to see you there.

The County Court of Victoria has announced that it proposes to implement Judicial Settlement Conferences in serious injury cases from 2012. Two pilot programmes of these conferences have been conducted by the Court with mixed results. Adviceline Injury Lawyers have participated in both pilots and are keen for Serious Injury cases to be settled without the need to go to Court wherever possible.

These conferences are informal, but held in a court room with the assistance of a County Court Judge. The Judge encourages the parties to discuss all issues in the case to see whether it can be resolved. Early resolution of as many cases as possible will free up the Court to hear cases that must be determined by a Judge. At the moment there is significant delay in getting a date for Serious Injury Applications to be heard so it is hoped that these conferences will reduce the delay.

The Court intends to arrange Judicial Settlement Conferences in about 60% of matters within 120 days of the case being issued.

The mass Bluescope layoffs and the ongoing tough climate for Australian jobs and manufacturing create a difficult situation for any worker made redundant. Yet, these difficulties are magnified for workers who have been injured at work and suffer ongoing restrictions.

Many are not aware that even if a worker’s employment is terminated, WorkCover entitlements continue. If the worker has a partial capacity for work but light duties are no longer made available due to the redundancy, the worker may be able obtain WorkCover weekly payments if they have previously received less than 130 weeks.

If you have been injured at work in Victoria and how now been made redundant, contact our office on 9321 9988 to receive free advice about what entitlements may be available.

A client of Adviceline Injury Lawyers was granted a Serious Injury Certificate this morning in the County Court, for a back injury she sustained 23 years ago while working at the defendant’s shoe factory.

Our client injured her back at work when bending down and reaching to grab leather uppers from a crate. She immediately experienced sharp pain in her back. Despite the back pain, our client continued to work on light duties, before having to cease work later that year due to the severity of her symptoms. Upon ceasing work in 1988, our client lodged a Workcover claim which was accepted by the defendant.

Our client required 3 months off work, before attempting to return to the defendant’s shoe factory, starting on a few hours a day and gradually increasing her hours to full time. During this time she continued to experience lower back pain, and began experiencing pins and needles with numbness into her right leg. Our client subsequently underwent spinal fusion surgery performed in October 1989, with this surgery being paid for by Workcover.

Within six weeks of undergoing the spinal fusion surgery, our client made a successful recovery, and she returned to school to complete her VCE. Following the completion of her studies, she then undertook a number of jobs in the retail and hospitality industries, before working full time as a nanny, caring for two young children.

Between 1997 and 2001, our client had three children, and although she experienced some back pain during the final months of each pregnancy, the pain resolved after each birth.

Our client returned to part- time work in 2006, and in mid 2007, she began to experience worsened back pain, with symptoms across the right side of her lower back extending down her right thigh. Despite rest and medication, her symptoms gradually worsened, and a CT scan performed in early 2008 showed that the original fusion was unstable.

Our client underwent further spinal fusion surgery in 2009, with Workcover accepting liability for the performed surgery and reinstating her weekly payments. She subsequently underwent a third back surgery in 2010 which involved a cage being internally fitted to her spine.

Although a serious injury certificate was denied by the defendant, it was conceded by the defendant that our client had a whole person impairment of 30% or greater in respect to her back injury, therefore having a serious injury within the meaning of Section 135A(3) of the Act. The issue in dispute however, was whether our client had the requisite knowledge as to the serious injury consequences, for more than 3 years prior to her making the claim against the defendant.

A County Court Judge was not satisfied that our client had the requisite knowledge of the serious consequences of her back injury, more than 3 years prior to making her claim. The Judge was of the opinion that our client only became aware of the serious consequences in 2008, upon receiving medical advice that the original spinal fusion was unstable, and that she would require a second spinal fusion surgery. A Serious Injury Certificate for both pain and suffering damages and loss of earnings was granted, enabling our client to now make a claim for common law damages.

In Court proceedings where a plaintiff claims damages for bodily injury, the defendant is entitled to request that the plaintiff submit to examinations by a medical expert or experts. Indeed, in almost every claim for personal injury, examination appointments will be arranged by both the plaintiff’s solicitors and the defendant’s solicitors in order that the plaintiff’s injuries can be properly assessed.

If the plaintiff refuses or neglects without reasonable cause to comply with the defendant’s request to attend a medical examination, the court may, if the request was on reasonable terms, stay the proceeding. So when does a request become unreasonable?

Medical examination can include requiring a plaintiff to undergo chemical, mechanical and other procedures or tests designed to assist a medical diagnosis. Whether a plaintiff’s refusal to submit to examination is reasonable depends on all the circumstances. In Stace v Commonwealth (1988) 49 SASR 492 at 495 Cox J found that “A test may be reasonable enough in itself, but a particular plaintiff may nevertheless be justified in declining to undergo it because of his own personality or circumstances.” The test is therefore essentially subjective, although an objective test of reasonableness also applies.

The issue was considered by the Supreme Court of Victoria in September 2010 in the matter of Jean May Dikschei v Epworth Foundation [2010] VSC 435.

Mrs Dikschei brought a claim in medical negligence against the Epworth Hospital (“the Hospital”) relating to treatment she received when recovering from surgery. Mrs Dikschei alleged that she suffered a stroke as a result of a nurse squeezing a central venous catheter line that was inserted in her neck area – causing an embolism (air bubble) to enter her heart and then progress into her brain.

In the course of the proceeding the Hospital sought to have the plaintiff undergo a procedure known as a transoesophageal echocardiogram (“a TOE”). The procedure would enable the Hospital to view the plaintiff’s heart to determine whether she had a particular defect in the heart, sometime referred to as a “hole in the heart”, that would have allowed the embolism to cross from the right atrium into the left atrium and into the brain.

Mrs Dikschei refused to undergo the procedure and the Hospital therefore brought an application to have the proceeding stayed.

During a TOE procedure sedation is administered intravenously and a probe is passed down the throat and placed in the oesophagus immediately behind the heart atria giving visualisation of the interatrial septum.

In his judgement Mukhtar AsJ of the Supreme Court noted the following four points:

1. At the time the application was made in September 2010, Mrs Dikschei was 76 years old; what had occurred to Mrs Dikschei was a shocking event from which Mrs Dikschei had not fully recovered; and Mrs Dikschei was worried about undergoing a medical procedure and had lost confidence in health professionals.
2. The risk of a major complication from a TOE is minimal, but the procedure did involve a technical assault, discomfort and risk.
3. The doctors who attended Mrs Dikschei after her stroke all reached the same conclusion about the likely cause of the stroke without a TOE.
4. There was evidence that a negative TOE test does not disprove the presence of a heart defect and therefore, even if the TOE test was negative, it is likely the plaintiff would still contend that the facts speak for themselves and the stroke was caused by an embolism from the manipulation of the catheter.

For the reasons set out above Mukhtar AsJ concluded that the plaintiff’s refusal to consent to the TOE was not without reasonable cause and the defendant’s application for a stay of the proceeding was refused.

His Honour Mukhtar AsJ referred to an earlier Supreme Court decision of Downing v Wein (2005) VSC 134, where an infant had refused to undergo an MRI brain scan. In that case Kaye J articulated that the Court must balance the plaintiff’s interests in preserving his or her health against the defendant’s interests in being better informed on an issue in the case. Kaye J ordered that the MRI should take place but that it could not involve the administration of general anaesthetic or a contrast dye.

In these applications the Court must balance the plaintiff's health interests, with the defendant's interests in gaining information relevant to the proceeding. It appears that a major issue will be whether the medical procedure is invasive, or involves a "technical assault", as well as the risks of the procedure to the plaintiff's health. Further, the plaintiff's individual circumstances, including age and any particular vulnerability can be taken into account.