Recreational and Adventure Operators Protected from Liabilities

“Obvious Risk” saves Operators from Compensation Claims

compensation claims sydney

The possibility you’ll get hurt is all part of the charm, right?

Recreational and adventure operators can breathe a sigh of relief as a recent court decision helps protect them against liability charges.

For many, the thought of jumping out of a plane, firing paintballs throughout the Australian bushland or skiing down Perisher Blue’s frosty slopes is an exhilarating one; the physical exertion, the challenge of conquering your fears, the camaraderie built amongst mates and the rush of adrenalin that will leave you with stories for decades to come is enough to fork out the bucks for. But it has finally been recognised that we must face these fears with our eyes open to the fact that injury, even the possibility of death, is ever present.

In the case of Action Paintball Games v Barker, the defendant, Action Paintball Games, successfully appealed the awarding of damages of $280, 000 to a young plaintiff who had sustained injuries after tripping on a tree root whilst running. The child (under 10) had been spoken to by employees of Action Paintball, in the presence of her father, and warned that due to sticks and general debris that running was not advised.

Whilst the trial judge had found that tripping on a tree root was not an obvious risk in this case, as the child had never played laser tag before and the bush land she was playing in was not natural bushland, the Court of Appeals disagreed. They found that APG had issued a warning to the plaintiff and that there was no duty of care owed to her.

What this means for liability compensation?

Participants seeking  the thrills and spills of adventure and recreational activities must not expect to do so wrapped in cotton wool. ‘A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. Most people participate in organised sport on that understanding,’ writes Ross Donaldson, of Colin Biggers and Paisley.

The success in the Court of Appeals for Action Paintball is just one amongst a slew of recent cases demonstrating a growing trend towards pragmatism in the courts as opposed to restrictive measures.

This is good news for operators who feel the fear of their adventure activity centres being shut down, or sent into financial ruin, following legal actions. Whilst the definition of “Obvious Risk” will be open to some interpretation in the courts, operators can feel less burdened by the pressure of going through overly comprehensive risk assessments with patrons for fear of scathing litigation.

It’s important that both recreational and adventure operators and their patrons understand the risks involved with their activities. The recent crash, resulting in the devastating death of five skydivers at Caboolture, is a harsh reminder of the risks we take when we participate in such activities.

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Sydney MP says changes to workers compensation laws have made the process “harder”

NSW’s worker’s compensation laws have changed; one Sydney MP says the changes haven’t been for the better.

Workers Compensation

Are our workers still protected?

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Caption: Are our workers still protected?

When premier Barry O’Farrell brought in his massive 2012 overhaul of workers’ compensation laws, the intent was to rein in a $4 billion WorkCover deficit.

At the time, New South Wales workers compensation premiums were doubling those in Victoria and it was clear something had to be done.

For O’Farrell, getting WorkCover right represented a significant drive in economic improvement. But two years later, has it all gone wrong?

Here’s what we know so far.

1. Claim complications

Workers’ compensation claims have nearly halved in the Bankstown area since the new laws were introduced in June 2012. Sydney Labor MP Tania Mihailuk believes this falling-off has been due to changes made in the actual claim process rather than less accidents occurring in the workplace.

Some have reported that filing a claim is more difficult now than it has been in the past with overly complicated paperwork, unclear requirements and conflicting laws.

2. The impact.

The 2012 changes to compensation laws involved the scrapping of workcover for employees injured during travel to and from work. There were 860 less claims made in the last two years by residents in Mihailuk’s ecectorate of Bankstown.

3. Controversies

There have been ongoing reports of medical benefits and weekly payments for injured workers being reduced or cut off altogether. According to Tania Mihaliuk, where legal fees were previously covered by the law, injured workers must pay their own legal costs whether or not they win the case.

Finance and Services Minister Andrew Constance has refuted these claims and insists the claims process for individuals have not changed as part of the reform.

Final thought.

It’s too early to give O’Farrell a damning assessment of his new compensation laws but judging from personal accounts, work needs to be done.

Do you think workers should be compensated if injured on the commute to and from work?

Money gets saved by a tightening of the belt, but at what cost for our workers?

A QUICK LOOK AT WORKERS’ COMPENSATION

In June 2012, the New South Wales government brought in changes to the Workers’ Compensation Scheme. These reforms were intended to improve financial support for seriously injured workers and provide assistance for workers returning to employment with a particular focus on:

*Bettering financial support for injured workers.

*Encouraging financial sustainability.

*Assisting injured workers in their return to work.

workers compensation

Fair or faulty?

Image via Shutterstock.

Questions have since been raised about the fairness of the scheme, especially when a bureaucrat had her compensation denied.

So is the workers compensation scheme fair or faulty? Let’s take a look.

MARTINA MARTINEZ

When Canberra bureaucrat Martina Martinez was bullied through compulsory private counselling sessions, she lost her fight for workers compensation. After working with a national indigenous cadet program, Martina quit her job after the job significantly contributed to her mental illness.

Martinez was shocked to find her compensation claim was denied because a manager took “reasonable administrative actions”. This was further supported by the commonwealth public service workplace insurer Comcare who rejected Martinez’s claim because there had been reasonable attempts to improve her work.

A positive outcome for Martinez seemed hopeless until the Administrative Appeals Tribunal found Ms Martinez had been humiliated and unfairly treated. The tribunal went against the official workers compensation guide to bullying that says ”management action is reasonable if conducted fairly, transparently and in line with approved processes”.

Justice Alan Robert commented on the case, saying an employee’s reaction could not be relied upon when determining if the manager’s action was reasonable or not and ”some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work”.

In a decision published last week, it was ruled that Ms Martinez suffered from a mental illness of which her employer, and supervisor’s actions, contributed to a significant degree.

From this case alone, it’s clear that the workers’ compensation scheme isn’t blemish-free and more work needs to be done to ensure fairness for all workers.

HOW TO FILE FOR WORKERS COMPENSATION

WorkCover provides simple steps to apply for compensation.

Step 1: Contact the insurer first

Your case manager at an insurer is the first point of contact for all complaints and disputes. These managers are familiar with your circumstances and are better trained to handle the dispute.

Step 2: Contact WorkCover

If you are dissatisfied with the outcome or decision an insurer makes, we recommend you contact WorkCover on 13 10 50.

WorkCover reviews your dispute and ensures management of the claim is in accordance with workers compensation legislation and policy.

Step 3: Further assistance.

If further action is required and WorkCover can’t help you with a dispute, these are additional and more specific areas you can seek assistance from:

• NSW Ombudsman – ombo.nsw.gov.au

• Workers Compensation Commission – wcc.nsw.gov.au

• Administrative Decisions Tribunal – adt.lawlink.nsw.gov.au

The Use of Photographic Evidence in a Medical Negligence Claim: will they be admissible in court?

Medical Negligence claims are harrowing experiences at the best of times. A medical negligence claim is only going to come across our desk when someone has or is suffering, perhaps, due to the fault of another. Evidence in these cases is crucial, but what is admissible in a court of law?

Medical Negligence

Proving medical negligence isn’t as simple as a snap of the lense.

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Photographic evidence is a court staple when it comes to criminal and civil proceedings. But when it comes to medical negligence claims the area around photographs is a little more grey. Photographs will often appear in court during the course of a medical negligence case. They are displayed to the jury in an effort to support the claimant’s testimony. In the past, these photographs would have typically been taken by members of the police force rather than a forensic physician. In as such, it’s arguable that they are not as good or accurate evidence as a detailed medical record when it comes to proving the extent of injury or illness in an individual.

Move on a bit, and we have a proliferation of affordable camera devices on hand at all times — your Macbook, your smartphone, etc. All these devices come with amateur photo-editing suites, apps and software that a large amount of the populace are highly familiar with and feel comfortable using.

Whilst the accuracy of photographic evidence when images were not taken by a forensic physician was hard enough to prove when factors like shadowing, light and saturation came into play, legal teams now have to prove filters or effects haven’t been transposed over an image causing injury to appear worse than it it/was.

In the end, a physical examination is always considered to have more weight in court that photographic evidence. In cases when it is suspected death was the result of medical negligence the autopsy of a body, even one that has been buried, is considered preferable to photographic evidence.

A case of medical negligence?

In the case of Masters bht Masters v Sydney West Area Health Service[1], Justice Davies of the Supreme Court of New South Wales dealt with an interlocutory application by the defendant to remove the plaintiff’s expert medical opinions on the basis the experts had relied on photographs of the plaintiff where authenticity could not be established.

In this case, the plaintiff, an infant, was born at the Blue Mountains Hospital following a normal birth. The child seemed to be suffering from jaundice some days after the birth. Clinical notes included entries, commentary on the skin tone of the child, made by midwives who were taking care of her. Eventually a blood test was performed finding elevated levels of bilibrium – a finding consistent with the a diagnosis of untreated jaundice. The allegations of negligence focused on the hospital’s delay in diagnosing and managing the condition, leading to brain damage and cerebral palsy, and whether better management and earlier intervention would have avoided the infant’s horrific injuries.

Expert testimony was given on behalf of the plaintiff by both a neonatologist and and a midwife.

The neonatologist initially formed his opinion on the case based on the medical notes made by the staff at The Blue Mountains Hospital. In a later report he also viewed the photos, taken on a standard digital camera by the plaintiff’s father, purported to show a worsening of the child’s condition. The midwife saw both the clinical records and the photographs at the same time.

The defendant argued that neither the neonatologist or midwife had any prior knowledge of portrait photography or editing. Their argument relying on the testimony of the purported expert photographer to cast doubt on the ability of the plaintiff’s father to accurately depict her skin tone at the time the photographs were taken. Consequently they argued that if the plaintiff was unable to authenticate these photos than their expert testimony was inadmissible as they believe the photographic evidence played a significant role in forming their medical opinions.

However, the “expert” photographer proved to be less than erudite in his profession. Justice Davies noted that the defendant’s expert seemed to be inexperienced in the preparation of expert reports and didn’t seem to grasp how the photographs were important to the plaintiff’s claim. He also failed to produce a C.V and failed to define a range of specific photographic terms. His evidence  was ultimately ruled inadmissible by Justice Davies.

The photographs and expert testimony of the plaintiff were allowed to pass before the trial judge; the accuracy of the photographs was to be a matter for he/she to determine.

The plaintiffs were lucky their medical expert’s had already formed their opinions based on the clinical notes rather than on the viewing of the photographic evidence. Rather, the photographs of the plaintiff had only served to reinforce their opinions that delayed treatment was responsible for the degree of her injuries.

What does it mean?

When it comes to medical negligence cases lawyers need to consider that their expert witnesses are not legal professionals. In such, they need to assist their witnesses in the proper preparations of expert reports, ensuring that they are compliant with the requirements of the UCPR and relevant case law. Furthermore, legal professionals must be aware that the use of photographic evidence in medical negligence cases may be inadmissible if expert medical testimony can’t be proven to stand on its own. Photographic evidence is highly susceptible to interpretation and therefore should only be used to support an expert’s testimony, not form the backbone of it.

If you have photographic evidence you feel would be beneficial to your medical negligence claim seek legal help immediately. if you have taken the photos yourself, or they have been taken by a friend or family member, ensure that they are taken in good lighting and have not been edited in any way.

What is Dispute Resolution?

As an active Sydney law firm we regularly deal with dispute resolution procedures. Dispute resolution as a whole represents a wide range of methods through which potential litigants may be able to resolve their disputes. The legal systems provides varying structures for the resolution of disputes; the term itself has come to include the full length of the legal spectrum for dealing with complaints including the extrajudicial forms like negotiation and mediation right through to litigation which will land you in court.

Dispute

Dispute resolution is best done out of court for all involved.

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The most common options that potential litigants may choose to resolve their disputes include:

negotiation;

mediation;

conciliation;

expert appraisal;

arbitration; and

litigation (also known as adjudication).

Alternative Dispute Resolution and You

Alternative Dispute Resolution (ADR) is the process of resolving a dispute without judicial determination. An independent third party assists potential litigants to resolve their dispute through negotiation, mediation or conciliation. An ADR does not include any decisions made by a court of tribunal and therefore offers potential litigants the chance to resolve their complaints whilst avoiding costly and time-consuming legal proceedings.

There are three main types of ADR processes in Australia

Facilitative: A dispute resolution practitioner assists the disputing parties to identify the disputed issues, develop their options, consider the possible alternatives to litigation and try to reach an agreement. Entire disputes or sections of a single dispute can be reconciled this way. Examples include: mediation, conciliation, facilitation and facilitated negotiation.

Advisory: A dispute resolution practitioner considers an appraises the dispute, providing advice as to the facts of the dispute, the law, and occasionally, desirable outcomes and how they can be achieved. Examples include: case appraisal, conciliation (where advice is offered or used) and early neutral evaluation.

Determinative: A dispute resolution practitioner evaluates disputes and makes a decision. This can often include the hearing of formal evidence from all parties. Examples include: arbitration, expert determination and private judging.

Litigation and You

While ADR is often encouraged, litigation remains the most common form of dispute resolution in Australia. Pleasingly though, 95% of civil cases commenced in court end up being settled out of court through assisted ADRs like mediation, negotiation and expert appraisal.

In litigation proceedings, parties submit their dispute to the relevant court. The final decision in the litigation process comes downs to the a Magistrate or Judge. Throughout the proceedings it is this judicial officer who remains the official impartial third party, making his or her decision based on the evidence and facts at hand.

The process of litigation can be costly, confusing and extremely time consuming, with much back-and-forth between litigants and their lawyers.

While litigation is best kept as a last resort there are some disputes that require an official judicial decision. These include, but are not limited to, the dissolution of marriage, grants or  probates in respects to people’s Wills, most criminal matters and urgent application where a third party is required to act on your behalf e.g. the federal police when it comes to the removal of a child or financial institutions when you need to withhold payment.