Woman Receives $9.5 Million Compensation From Motorcycle Crash

A woman has received $9.5 million in compensatory damages in proceedings concerning a high speed motor vehicle accident in 2006.

Susan Delaney suffered brain injuries when she was injured when a motorcycle driven by her boyfriend crashed on a mountain road.

Ms Delaney’s boyfriend was a member of the Odin’s Warriors Motorcycle gang and was killed in the accident.

The Supreme Court approved a settlement that provided for Ms Delaney’s ongoing care which is the substantial amount of the damages. In severe brain damaged clients there is a requirement for around the clock care for cleaning, feeding, bathing and the other necessities of life. Susan Delaney’s mother Joan has been looking after her following the motorcycle accident. The settlement is a substantial sum to ensure the provision of care for Ms Delaney for the rest of her life.

Listeria Outbreak From Jindi Cheeses

Three fatalities have resulted from an outbreak of listeria traced to Jindi cheeses.

Listeria is a type of bacteria that contains 7 species. Listeria is a serious infection which is caused by eating foods contaminated by the bacteria Ingestion of the listeria bacteria can result in listeriosis which can have fatal consequences.

By 13 February four fatalities had incurred including a New South Wales woman who had a miscarriage following ingestion of the Jindi soft cheese. The Victorian Department of Health has traced the outbreak to the Jindi Cheese factory in Gippsland, Victoria and this has resulted in a recall of 100 cheese products manufactured by Jindi.

The listeria incubation period is 70 days so there are still some people in the community who may have ingested the cheese and may still show symptoms at a later date.

Anyone suffering injuries from contamination from listeria is urged to contact Attwood Marshall Lawyers for legal advice concerning their rights.

Which State Can I Claim In For Worker’s Compensation

Interesting issues arise for workers who work in both Qld and NSW. If a worker works in New South Wales but is injured in Queensland, do Queensland laws apply? Not necessarily.

In an effort to clarify the issue for employers the state governments for New South Wales, Queensland and Victoria enacted uniform legislation with the aim of having employers to only have one policy of worker’s compensation insurance in one state to cover their employees. Essentially there are similar tests which are used under New South Wales, Queensland and Victorian law to determine which state compensation system applies. Compensation is normally paid under the Act of each state when the employment is connected with that state. The fact that a worker is outside the state when an injury is sustained does not prevent compensation being payable under the state Act in relation to that employment. A series of cascading tests apply to determine whether the worker’s employment is connected with the state. The Court/Commission looks at the following factors to determine connection with the state. A worker’s employment is usually connected with:

(a) the state in which the worker usually works in that employment; or

(b) if no one state is identified as above, the state in which the worker is usually based for the purposes of that employment; or

(c) if no one state is identified by the two paragraphs above, the state in which the employer’s principal place of business is located.

It is not possible for a worker to pick and choose which state is liable to pay the claim based on the generosity or paucity of benefits available in any one particular jurisdiction. Some workers have attempted to escape the compensation restrictions of one state in order to obtain the more favourable benefits in another state. See for example Ferguson -v- WorkCover Qld [2013] QSC 78

Generally where a worker pursues a claim for compensation in one state then that law is also the law that applies with respect to the calculation of common law damages against the employer in the event that negligence can be found against the employer. This is enshrined in legislation (Qld Section 324, NSW Section 150A).

Occasionally the worker’s compensation insurer of a state will not properly consider the jurisdictional element when paying out statutory benefits. It is therefore crucial that all workers obtain legal advice soon after their injury so that the jurisdictional issue can be settled early to ensure that the case is properly prepared, bearing in mind that in both New South Wales and Queensland a 3 year time limit applies to the prospection of a common law damages claim against the employer. Many technical steps must be taken before that time to ensure that all the procedural requirements of the legislation in both states are complied with so that adequate notice can be given for a claim of common law damages.

If you are unsure as to which state law applies in the calculation of your entitlements as a worker please contact Attwood Marshall Lawyers or further advice on 1800 621 071.

Queensland Government To Impose Workcover Thresholds

Queensland Attorney General Jarrod Bleijie has obtained approval from the State Cabinet to introduce a 5% threshold for access to common law damages for injured workers in Queensland.

Under the pretext of shielding employers from “outlandish claims and skyrocketing premiums” the changes have been brought in without having proper regard to the healthy financial state of the Qld WorkCover scheme which is the most profitable and best performing scheme in Australia.

Journey claims are still preserved under the legislation.

The new changes mean that Queensland workers will only be able to take common law action against their employer in negligence if they have a medically assessed injury of 6% or more.

Another change likely to cause controversy in a plan to give employers access to compensation claim histories of job applicants.

These changes come on the back of the latest WorkCover Qld’s annual report which indicates that profits are up and that the rate of common law claims are down which makes it bewildering as to why the State Government would change a system which is working well and is financially sound. In fact, the cost of common law claims was down more than $50 million compared with the previous year.

The new changes will have a harsh affect on working Queenslanders and will leave the families of the workers devastated in many circumstances given that in some cases their employer is not brought into account for having a negligently unsafe workplace with a worker unable to take any common law rights unless their injury is severe enough to warrant prosecution, i.e. above 6%.

If you are concerned about these changes and the possible affects that they will have on your family you should contact your local State Member of Parliament to voice your opposition to these harsh cuts.

Care Needed in Proceedings Against the State of Queensland

Employees of the Queensland Crown should be aware of a decision which may impact their entitlements in view of the operation of the Queensland Personal Injuries Proceedings Act and the Queensland WorkCover legislation.

In State of Queensland -v- Heraud [2011] QCA 297 the Queensland Court of Appeal decided a case involving a worker against two government departments. The worker sought to maintain proceedings under the Personal Injuries Proceedings Act against Arts Queensland whilst at the same time the worker was employed by the Department of Public Works Queensland.

The worker submitted that the site where he was injured was under the control of Arts Queensland whereas he was employed by the Department of Public Works. Chesterman JA in the Court of Appeal held that the worker was employed by the State of Queensland or the Crown in right of the State of Queensland and not by the Department of Public Works He held that the worker’s claim notified under the provisions of the PIP Act was therefore a claim for damages for personal injuries against the same juristic person as satisfied his claim for compensation brought under the Workers Compensation Act. Given that the worker had accepted a work related impairment payout from WorkCover Qld he was prevented from proceeding with the claim against Arts Queensland on the basis that he had already extinguished his rights by accepting the work related impairment payout.

The lesson that injured parties need to take from this case is this, before you accept any lump sum payment from WorkCover Qld for a work related impairment you should carefully seek legal advice as if you are contemplating taking action against a different party you may be prevented from doing so on the basis that an irrevocable election has been made.

This is especially pertinent for government employees considering a cause of action against one or more entities of the Crown.

If you receive an offer of work related impairment from WorkCover Qld you should carefully examine your entitlements before accepting that offer as you may be jeopardising your entitlements to proceed against another government department, if you are an employee of the Crown.