‘Relatively Easily’ Brain Surgery Has Tragic Results

PANAGOULIAS -v- THE EAST METROPOLITAN HEALTH SERVICE [No.4] [2017] WADC 118

Prior to his injuries the plaintiff was a very social person. He enjoyed a range of leisure activities like, fishing and cooking, home handy work including renovating and tinkering with cars, and enjoyed his work as well.

In December 2005, the plaintiff was diagnosed with a brain tumour. He had been experiencing headaches for some time, he was referred to a neurosurgeon.

The tumour was determined to be benign but needed to be removed. The plaintiff and his wife were advised that this kind of tumour was ‘relatively easily’ managed. The phrase ‘relatively easily’ must of course be understood in the particular context of brain surgery, with all its significant inherent risk.

On 23 January 2006, the neurosurgeon performed the required surgery and about 90% of the tumour mass was removed.

The headaches began to return however, along with some vision problems. Once again, the neurosurgeon was consulted. He advised that it would be necessary to deal with the part of the tumour that remained.

The plaintiff was admitted to hospital for the surgery. The surgery was performed the next day. It was not a success. In the course of the surgery the neurosurgeon nicked the plaintiff’s carotid artery causing worrying bleeding. The attempt to remove the tumour was abandoned.

When the plaintiff left hospital, his condition was stable, except perhaps for a fairly constant and consistent mucous discharge from his nose. The plaintiff had been advised not to blow his nose, but this discharge meant that he was constantly wiping it.

Over the course of the next few weeks the plaintiff and his wife consulted with the neurosurgeon many times over the phone seeking medical advice, including for a severe sneeze suffered by the plaintiff.

In the early hours of one morning, the plaintiff’s wife woke up to find him complaining about having ‘quite a severe headache’.

The following morning, the plaintiff’s wife called the neurosurgeon and told him that her husband had a very uncomfortable night, that he was in a lot of pain, and that he had a really bad headache. She said that he responded by saying to her something to the effect of ‘well you need to take him into the emergency department. There could be something going on with his aneurysm thing and he just needs to be in the hospital over the weekend so that they can observe him’.

After presenting to the hospital, the plaintiff was admitted to a ward, an observation made suggested that the plaintiff was ‘OK‘. Just eight minutes later he was ‘found to be unresponsive’ and experiencing ‘hemiplegia‘ (That is, one side of his body was paralysed). Shortly after this he lost consciousness, an emergency team was called, and the plaintiff was intubated and ventilated. By this time a bacterial meningitis had caused the plaintiff severe and irreversible brain damage.

The plaintiff continued to have multiple medical episodes, being the result of neurological problems caused by the brain injury.

Breaches

The breach alleged against the neurosurgeon by both the plaintiff and the hospital was that he neurosurgeon failed to provide the plaintiff with an appropriate warning or advice after the plaintiff had sneezed out a piece of what appeared to be fatty material. The neurosurgeon should have told him to immediately go to hospital if he developed ‘other symptoms including a more severe headache, stiff neck, high temperature or photophobia‘. That obligation is said to arise from a number of facts and circumstances, sometimes summarised by the notion that the plaintiff was a ‘complicated case’.

The plaintiff’s allegation of breach as against the hospital is that, given the plaintiff’s history and his symptoms on presentation at the ED and throughout the course of the day, the staff at RPH failed to act in a timely way to treat the plaintiff’s bacterial meningitis.

Findings

The judge stated that “the plaintiff’s former life has been taken from him. He is left not only with significant physical disabilities, but with the cognitive and emotional problems that have been described, there is no prospect whatever of recovery” and had no hesitation in finding that the failure to commence intravenous antibiotics and corticosteroids by a certain time breached the duty of care owed by the hospital to the plaintiff. In that regard, the evidence presented was that if the plaintiff had been treated with intravenous antibiotics and corticosteroids earlier, then, on the balance of probabilities, the plaintiff would not have suffered an adverse outcome from the bacterial meningitis infection.

Order

The judge ordered that the plaintiff should have judgment against the hospital for a substantial amount but dismissed the action against the neurosurgeon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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5 Questions To Ask Your Lawyer

Choosing the right lawyer for your individual case is essential to getting the result you want. In order to find out if a lawyer is right for you, here at 5 crucial questions to ask:

1: What kind of lawyer are they?

Some lawyers are “general practitioners” who work on a variety of types of legal cases, including personal injury cases. With a serious personal injury claim, you need an expert lawyer who handles personal injury cases on daily basis. The practice of law has become so complex that is it practically impossible for a ‘jack of all trades’ lawyer to stay on top of all the changes in personal injury law practices. The majority of lawyers who are hired by insurance companies to defend personal injury cases are experienced experts who limit their practice to the defence of personal injury cases. A non-expert lawyer is likely to be at a large disadvantage when they represent a claimant against a law firm that specializes in the defence of personal injuries cases (on behalf of insurance companies).

2: Track record: Have they taken cases similar to this one in the past? How many? What was the result?

Even though a lawyer may specialise in a particular practice they may not be particularly accomplished in it. They may be new to the area of practice, practice it part of the time, or might just be unskilled. How many cases like yours have they handled in the past? Experienced personal injury lawyers who have been helping claimants with cases for many years will have gained valuable negotiation and trial expertise. They should have knowledge about the legal circumstances of a case like yours. In addition to experience, your lawyer to have a proven track record of success on cases similar to yours. Ask the lawyer what results they have had in the past, good or bad. Reading about previous success stories will give you an idea of the possible results and your lawyer’s abilities.

3: How long does the attorney think it will take to resolve this case?

Time is a precious resource when you’re in the processing of claiming compensation, medical expenses and time out of work add up. Knowing approximately how long it will take before you are compensated for your injuries helps in preparing yourself for the process ahead. It is important to know how long your life may be disrupted by attendance at legal proceedings, investigative doctor visits as these unseen time costs can add to the stress of your situation. There are a number of factors that will affect the duration of a trial, therefore while a lawyer will not be able to give you a precise time frame, they should be able to give a general indication based on how long cases comparable to yours have taken in the past.

4: Who will actually be servicing your case?

The lawyer you meet with at the initial consultation should also be the lawyer handling your case in order to get the best service and representation. Most large law firms use an approach where you will be initially speaking to a partner or higher up who is experienced and skilled but then your case will be handed down to a junior lawyer or general team. You need to know the name of the lawyer who is actually doing the legal work on your claim and if that lawyer is a specialist in personal injury law. If not, they are not the right lawyer.

5: Do I feel comfortable with this lawyer handling my case?

This is as an important question as any, as with many things in life, often our gut instinct is right. In your first meeting with a lawyer, you should be able to feel if you can trust them with your personal injury case. Trust, communication and honesty are essential qualities of a good personal injury lawyer and you should only pick a lawyer that you believe can get the best result for you.

Contact us with any queries you may have, and to check all of the above points! We can come out to you for a no obligation free first consultation.

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Your Guide To Legal Language

Having trouble trying to decipher the legal language? Here’s our glossary to all the legal terms and terminology you might need to know.

Affidavit: An affidavit is a written statement setting out a person’s evidence, that is, information that tends to prove or disprove a fact. Affidavits can come from witnesses, experts, or the plaintiff or defendant.

Appeal: A challenge to the ruling on a claim.

Arbitration: A legal negotiation between two parties guided by a neutral mediator without involving courts or judges.

Assumption of Risk: When a person engages in a behaviour and is aware of the risks that can caused injury.

Burden of Proof: The burden of proof is the legal obligation to prove the legitimacy of your claims.

Catastrophic Injuries: Severe injuries which include physical and psychological impairments, often related to the skull or brain, neck, spine, spinal cord, back or organs. Catastrophic injuries can also include burns. See more about these type of injuries here.

Claim: A civil action regarding the physical or mental harm suffered by the plaintiff, or on behalf of the injured victim, due to negligence of the defendant; a request to the insurance company by the insured requesting coverage and payment for damage or injury.

Comparative Fault: Sometimes known as “comparative negligence,” comparative fault gives fault to both parties based on the level their actions were responsible for the injury.

Complaint: The first document filed with the court by the accuser outlining the claim and starting the lawsuit.

Contributory Negligence: The determination that the claimant is partially or fully responsible for the injury based on their actions. Contributory negligence is negligence by the injured party that combines with the negligence of another in causing the injury, which reduces the damages awarded by a percentage.

Damages: Damages are the compensation awarded to the claimant for their loss or injury, what a claimant seeks to recover in a lawsuit, which in a personal injury lawsuit is financial compensation. Damages can take the form of measurable economic damages, such as medical and rehabilitation expenses, wage loss and lost future income, or non-economic damages, which are not explicitly measureable, such as pain, suffering and humiliation.

Defendant: The individual or entity being sued in court.

Discovery: Discovery is the name given to the process by which each party is required to produce to the court and each other party all documents and information in its possession that are relevant to the proceeding.

Evidence: The proof of the claim including testimony, exhibits, documentary material, or demonstrative evidence.

Litigation: The formal process of filing a lawsuit.

Negligence: A failure to use a reasonable amount of care to prevent a foreseeable injury. To prove negligence, a claimant must prove: the defendant had a duty of care or obligation to them, the defendant violated or breached that duty, the breach caused damage to the defendant, and actual damages resulted.

Plaintiff (or Claimant): The injured party filing a complaint.

Preponderance Of Evidence: The amount of evidence needed to win a case.

Statute of Limitations: The maximum time after an event that legal proceedings can take place.

Strict Liability: Liability that does not include fault or negligence.

Settlement: A legally binding agreement between the plaintiff and defendant reached outside of court.

Torts: A civil wrong, in the case of negligence: an action that results in injury or loss.

Verdict: The court’s ruling on a case.

Whiplash: Whiplash (injury) , also known as whiplash associated disorder or a soft tissue injury, is injury to the tendons, muscles and ligaments from the sudden jolting forwards and then backwards (or backwards and then forwards) in a whip-like movement or through sudden forcible rotation.

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Car accident causes – driver distractions

According to government figures, 58% of drivers admit that using their mobile phone is their biggest distraction while driving. Other distractions include time pressures, food and drink, and using the stereo or changing music.

We’ve written all about Motor Vehicle Accidents previously

Distraction caused by passengers, eating and drinking, in-car technology and stimulus outside the car will be discussed as potential car accident causes below. Read an overview of car accidents.

Passengers

While driving companions can be a saving grace on long-distance road trips, they are a potential car accident hazard for the most part.

Passengers, especially if they don’t drive themselves, have a habit of asking you questions when you are trying to negotiate with traffic at roundabouts and junctions. You may also find that they think they know best and will begin to challenge you about your driving aptitude, again highly distracting.

If asked to navigate, passengers often contribute to hazardous situations by yelling out sudden instructions like “turn left now” when you have already passed the turning. Any driver caught unaware may make a sudden turn and end up hurtling into the street post.

Parents travelling with children in the back are statistically at even higher risk of being distracted and causing a car accident. There have been many cases where drivers have glanced in the rear-view mirror or even turned their head for a split-second to see what their kids are up to and caused a car accident as a result. Read more about car accident incidence rates and gender.

In-car technology and mobile phones

In-car technology is a growing concern for road safety specialists. As the digital age evolves we are seeing the introduction of satellite navigation systems and DVD players to our cars as standard. Then, of course, there is the ongoing battle of mobile phone use while behind the wheel.

Many drivers are now opting for cars that have built in GPS Satellite Navigation Systems which can pinpoint a particular destination via satellite and provide you with directions through a computerised voice on how to get there. This modern alternative to the map is handy for finding your way around but is not always reliable and motorists have been known to cause car accidents while fiddling around with the controls.

Use of a hand-held mobile phone while driving has been banned in the UK since December 2003. Motorists are not even allowed to talk or text on the phone if stopped at traffic lights or in a traffic jam.

However, motorists are still permitted to use their mobile phone if they have a hands-free kit. But, it is worth considering that if you are involved in a car accident while using a hands-free phone, you risk prosecution for failing to have proper control of the vehicle and are likely to receive a careless driving charge.

While we have had car stereos for many years and most wouldn’t regard them as particularly distracting, a recent Australian study revealed that drivers find adjusting their stereo more distracting than using their hands-free mobile phone to make a call. Results showed that those distracted by audio systems while driving braked 10 km per hour slower than focussed drivers while drivers using their hands-free mobile braked 6 km per hour slower.

However, with the introduction of MP3 players and Ipods which have the capacity for hundreds of songs you can store all your favourite tunes and will have less cause to take your attention away from the wheel to skip to the next track.

Parents are also investing in DVD players to entertain their kids in the back of the car. While this is a great ploy to stop joyous chants like “Are we nearly there yet”, loud and sudden noises or a particularly interesting storyline may distract the driver’s attention with fateful consequences.

Want to avoid the consequences of an accident? Learn how: Motor Vehicle Accident Causes.

Eating and drinking

Not many motorists are aware that it is illegal to eat and drink while driving and both of these offences are covered by careless driving laws. Road safety experts believe that eating while driving is just as distracting as using a mobile phone for the following reasons.

Firstly, eating while you drive may require you to remove your hands from the wheel. You may need to open an awkward packet or bottle and eating some foods such as crisps require the use of two hands.

Secondly, some snack foods like chocolate release certain mood-altering chemicals into the brain. For example, scientists have found that chocolate contains tryptophan which can produce feelings of elation, a similar effect to ecstasy. Phenylethylamine is another active ingredient, which works similarly to amphetamines, promoting feelings of giddiness and apprehension, while anandamide targets the brain in a similar way to cannabis.

You may be so overcome by the chemical reactions which occur while enjoying your food that you cause a car crash. However, most would have to eat a fairly large quantity of chocolate before it had a significant impact on their driving ability. Read more about drug driving.

Thirdly, burgers, chips, pies and other greasy foods will get all over your fingers causing a constant urge to lick them or wipe them on something, again requiring you to remove your hands from the wheel. You may even transfer grease to the steering wheel which could cause your hands to slip, the car to swerve and subsequently a car accident to occur.

Outside the car

Just as chatty passengers, the demands of small children in the back seat, eating and in-car technology can be a distraction inside the car, there is a wealth of distractions outside too. How often has an attractive passer by caught your eye when you are supposed to be concentrating on the road? Then there are random sights like students running around in their pyjamas beside the M40 in aid of RAG week that are bound to make you look twice.

As the advertising industry continues to boom we see more and more distractions popping up at the roadsides. Billboards are becoming larger, more colourful and even incorporate moving pictures into their design so it is hardly surprising that they grab our attention.

One particularly dangerous ploy is to use the art of seduction on roadside billboards. One glance at a larger than life Eva Herzigova sporting a Wonderbra is guaranteed to turn the head of most red-blooded males and, if traveling at 60mph along the motorway, this could result in a serious car accident.

In fact, a study has found that provocative pictures can leave you temporarily blind and unable to register any new images for several tenths of a second. If another car was indicating to come across to your lane and you failed to see the signal as a result of gawping at a busty lady you could have a fatal car crash on your hands.

Source: http://www.the-claim-solicitors.co.uk/car-accident/car-accident-driver-distraction.htm

The most common road accidents and how to avoid them

Britain has an enviable standard of road safety. In 2011 there were on average 3.7 deaths per 100,000 people in the UK – that’s just 0.7 higher than Sweden, which has the safest roads in the world.

But, it’s still a problem.

According to the Royal Society for the Prevention of Accidents (ROSPA), the leading causes of fatal road crashes in the UK include:

  1. Speeding
  2. Drink-driving (Check out the penalties for drink driving here: https://www.rsc.wa.gov.au/Road-Rules/Browse/Drink-Drug-Driving)
  3. Not wearing a seat belt
  4. Careless or aggressive driving
  5. Drivers who don’t look

Speeding includes going too fast for the conditions, whether or not it breaks the speed limit, and kills around 400 people a year, says ROSPA. Another 300 people per year die at the hands of ‘careless or reckless’ drivers.

A Department for Transport report released at the end of 2012 revealed that 42% of all crashes studied involved drivers simply ‘failing to look properly.’ It’s routinely the greatest single reason for an accident.

Furthermore, a government study of accident blackspots in 2010 found that the majority of crashes occurred when the roads were dry.

In fact, in two thirds of all fatal accidents, the driver involved was not even judged to have ‘lost control’ of their vehicle.

The main causes of accidents

We’ve written more on car accidents here: How Do Car Accidents Happen

The message emerging is that many drivers involved in accidents simply aren’t paying attention. Paying attention, along with wearing a seatbelt and remembering not to get blind drunk first, seems a relatively easy thing to remedy.

Sadly, some drivers have simply got too many texts to write before that happens, so the best thing you can do is drive defensively and understand the biggest risks:

  1. Near your house: a US study conducted by Progressive Insurance found that 52 percent of accidents happened within five miles of a driver’s home. The higher number of short trips than long ones is part of it; familiarity and lack of concentration the rest.
  2. At junctions: almost two thirds of cyclists and more than half the motorcyclists killed or seriously injured in the UK are hit by vehicles turning into their path at junctions.
  3. At the end of British Summer Time: in 2008, motoring insurer MoreThan revealed a regular five percent rise in claims over the two weeks either side of the clocks going forward.

If you need a lawyer because you’ve been in a motor vehicle accident, get in touch with AElegal: http://www.aelegal.com.au/motor-vehicle-accidents/car-accidents/

Remember these golden rules:

  1. Leave a two-second gap to the car in front
  2. Don’t drive tired
  3. Leave your phone alone
  4. Never drink and drive
  5. Wear your seatbelt
  6. Think bike – if you only look for cars, you’ll only see cars
  7. Stick to the speed limits

All this will give you the best chance of spotting a problem, reacting to it in time and – should the worst happen – coming through it without adding to the World Health Organisation’s statistics.

Source: Mirror.co.uk

How do accidents happen?

A study of more than 700,000 crashes in the UK has produced detailed evidence on the causes of road traffic accidents.

It’s enough to chill your blood on the warmest day. You’re driving along a familiar road on holiday or to work. But your progress is suddenly hampered by ominous signs; an ambulance screeches past and there’s an unexpected traffic jam.

You inch your way to the head of the queue and as you reach the crash scene it’s impossible not to gawp at the tangled metal. You know that within hours, a police notice board seeking witnesses to a fatal accident will appear.

Always though, two haunting questions remain: what went wrong – and how can you make sure it won’t be you next time?

Now, for the first time, a startling new report, Licensed to Skill, has broken down what happens in those mysterious “lost” moments leading to road accidents, analysing who is to blame, what sex or age they tend to be – and what they did wrong. Using data gathered by police and spanning 700,000 accidents from 2005-2009, the Institute of Advanced Motorists (IAM) has analysed, in breathtaking detail, the anatomy of a road accident.

Unexpected findings emerged, not least the relative unimportance that speeding plays in road accidents that kill six people each day in the UK, leave 68 others seriously hurt and 535 with less serious injuries.

“It has been an eye-opener,” says project manager Neil Greig, of the IAM. “Not just in terms of what causes an accident but in terms of dispelling some of the popular myths. For instance, if you look at Government campaigns they seem to say that speed is the number one problem. But illegal speeding – when drivers exceed the posted limit – accounts for only 13.9 per cent of fatal accidents. A bigger cause [15.9 per cent] is going too fast for the conditions – entering a bend too quickly, for instance – when you might well be under the actual speed limit.”

But the biggest cause of road accidents in the UK today? The statistics are quite clear on this and it’s “driver error or reaction”. It’s listed by police as a factor in more than 65 per cent of fatal crashes and the heading covers a multitude of driving sins many of which you’re probably on first-name terms with. Topping the charge sheet is failing to look properly (the Smidsy factor – “Sorry mate, I didn’t see you’, relevant in 20.5 per cent of fatals involving driver error), followed by “loss of control” (34 per cent) which, says Greig, often means leaving yourself with “nowhere to go” after entering a bend or other situation, too quickly. Other errors include “poor turn or manoeuvre” (12 per cent) and “failed to judge other person’s path or speed” (11.6 per cent.).

Second biggest cause of fatal accidents, to blame for 31 per cent, is the “injudicious action”, an umbrella term for “travelled too fast for the conditions’ (15.9 per cent of those labelled injudicious), “exceeded speed limit” (13.9 per cent) or “disobeyed give-way or stop sign” (2.1 per cent)?

Third culprit in the daily gamble on who lives and who dies is “behaviour or inexperience” (28 per cent), which covers faults such as “careless, reckless or in a hurry” (17 per cent), “aggressive driving” (8.3 per cent) and “learner/inexperienced” (5.3 per cent).

The fourth main category is “impairment or distraction” (to blame for 19.6 per cent of fatal accidents) covering “alcohol” (a factor in 9.6 per cent of fatal accidents) and “distraction in vehicle” (2.6 per cent).

“What is just as telling though is the factors that, though they might be key in a small number of accidents, aren’t all that significant,” says Greig. “We see a lot of campaigning on issues such as diesel and deposits on the road but that only explains 0.8 per cent of fatal accidents, and being dazzled by headlamps, a factor in 0.4 per dent of fatalities.”

Next time you venture out in bad weather, you might like to reassure yourself that slippery roads only factor in 10.9 per cent of fatal crashes involving road problems, while bad road layouts are to blame in 3.2 per cent.

But you should watch out more carefully for pedestrians. A separate heading shows that “pedestrian only, casualty or injured” accidents account for more than 18 per cent of collisions, with (sound familiar?) 10 per cent of them “failing to look properly”.

Delve further into the report and a colossal range of possible causes of accidents, 77 in all, emerges, including vision affected by the sun, vegetation or spray from vehicles and scratched windscreens. Of those motorists judged by police to have been distracted, only 0.8 per cent were using a mobile phone and 0.4 per cent had defective eyesight.

Other reasons accounting for 6.1 per cent of fatal accidents include “stolen vehicle” (1.1 per cent), “emergency vehicle on call” (0.3 per cent) and “vehicle in course of crime” (0.4 per cent).

Vehicle defects are a factor in only 2.8 per cent of fatals, with tyres mostly to blame (1.5 per cent) followed by dodgy brakes (0.7 per cent).

The overriding message? It’s not your car or the “road conditions” that are most likely to kill you. It’s your own driving. Men are more often ‘careless, reckless or in a hurry’, or ‘travelling too fast for conditions’. Women are more likely to be ‘inexperienced’, but less likely to have been drinking.

Age is a factor. Older drivers more frequently fail to look properly while younger ones are more likely to be going too fast, either for the limit, or the conditions.

Time of day is important; between 7pm-7am ‘loss of control’ is the key factor while at other times, it’s the familiar ‘failed to look properly’. Motorists are more likely to be ‘distracted or impaired’ at weekends (17 per cent) than on weekdays (10 per cent).

“Drivers can learn a lot by reading this and if you take just one thing away from it,” says Greig, “it’s that paying a little more attention, taking that little bit more time to look properly, will save your life. Mostly, crashes aren’t about cars going dramatically out of control and up in smoke. It’s small errors suddenly having greater consequences. But if you are a good, trained driver, you can avoid becoming a statistic.” And you’ll get to that appointment on time, too.

If you’ve been involved in a Motor Vehicle Accident get in touch with the team at AELegal.

Original Article: http://www.telegraph.co.uk/motoring/road-safety/8702111/How-do-accidents-happen.html 

Christos v Curtin University – A long standing dispute

The primary proceedings concerned a claim by the appellant (Dr Christos) against his former employer, Curtin University, (Curtin) for damages for psychiatric injury allegedly caused by Curtin’s breach of contract, negligence and breach of statutory duty.

In general terms, Dr Christos, whose employment was terminated by Curtin with effect from 28 October 2004, alleged that Curtin was in breach of contract and was negligent in the period 20 February 2003 to 28 October 2004:

(a)          for failing to assess and resolve, in accordance with Curtin’s grievance and dispute resolution policies and procedures, several grievance complaints made by Dr Christos against Curtin and members of its staff over a period commencing on 1 May 2002; and

(b)          in that Curtin and various staff members bullied, harassed and victimised him.

It was not in dispute that Curtin owed Dr Christos a duty of care. Nor was it in dispute that Dr Christos was psychiatrically disabled. The central issue in dispute was whether Curtin breached its duty of care and, if so, whether the breach was ‘a‘ cause of Dr Christos’s ongoing psychiatric illness.

The primary judge observed that a number of the events pleaded by Dr Christos had occurred prior to six years before the issue of the writ commencing the proceedings before him, namely on 20 February 2009, and that to the extent that Dr Christos sought to rely on breaches of contract or tortious damage which occurred prior to 20 February 2003, the claims were statute barred. However, his Honour recognised that the grievance proceedings that were set in train prior to 20 February 2003 were still of some significance because Dr Christos alleged that Curtin breached its obligations in failing to resolve the early grievance complaints.

In his findings, the primary judge stated that:

I find that Curtin through its staff did not bully, victimise or harass the plaintiff.  Whether there is a breach of a duty of care must depend on a finding that Curtin’s responses to the plaintiff were appropriate and, in the circumstances, reasonable.  In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.

Dr Christos appealed and his senior counsel indicated that the appeal did not involve any challenge to the judge’s findings as to the absence of bullying or victimisation.  Senior counsel said, in effect, that the appeal only concerned Dr Christos’s case in relation to the failure to assess and resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2014 and summarised the substance of his case as follows:

  • In the relevant period from 20 February 2003 to 28 October 2004, a reasonable person in Curtin’s position would have foreseen a risk which was not far‑fetched or fanciful, that its conduct in dealing with Dr Christos’s grievances (lodged in 2002 and subsequently) would cause or aggravate a psychiatric injury in Dr Christos;
  • In order to avoid that risk of psychiatric injury, a reasonable person in Curtin’s position would, in the relevant period, have progressed and sought to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • In the relevant period, Curtin failed to progress and seek to resolve Dr Christos’s grievances in accordance with the grievance resolution policy;
  • That failure, in the relevant period, to progress and seek to resolve Dr Christos’s grievances materially contributed to his adjustment disorder, which is a recognised psychiatric injury.

None of the above grounds were established by Dr Christos and the appeal was subsequently dismissed for the following reasons:

  • It was open to the primary judge to conclude that even if Curtin had taken adequate steps to resolve Dr Christos’s grievances in the period 20 February 2003 to 28 October 2004, that would not in itself have made any material difference to his psychiatric condition, because only a resolution satisfactory to him would have made any difference to his psychiatric state at the time.  In light of that finding, there was no suggestion that had the grievance process been completed within the relevant period, Dr Christos’s grievances would have been resolved to his satisfaction; and
  • The evidence of Dr Manners to which Dr Christos referred was in general terms, and was not directed to the specific question of whether delay in resolution of the grievances from 20 February 2003 to 28 October 2004 materially contributed to Dr Christos’s psychiatric injury. That evidence does not rise to the point where this court could say that the judge erred in concluding that the absence of resolution of grievances in the period 20 February 2003 to 28 October 2004 in fact made a material contribution to the nature or duration of, or materially exacerbated, Dr Christos’s adjustment disorder, or was a cause of his subsequent depressive disorder.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The post Christos v Curtin University – A long standing dispute appeared first on A & E Legal.

No Damages Award Due to NO Negligence Finding – A Wild Ride

In the matter of Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62, the Claimant and her friend were passengers on a boat called “100% Wild”. This vessel was operated by the defendant, Rockingham Wild Encounters P/L (RWE) for the purpose of taking paying passengers on dolphin watching cruises. The skipper of the vessel was an experienced master. Prior to boarding the vessel, Claimant and her friend attended at the RWE’s office to collect and pay for their tickets. She was asked to sign a waiver of liability in relation to the trip at that time and did so.

On the way, out of Cockburn Sound during the tour, the skipper navigated the boat in a westerly direction through a gap in a reef situated between John Point and John Ledge. The vessel encountered some waves, then a larger wave, which caused the claimant to rise out of her seat and come down hard, onto the same seat, striking her back against its edge. As a result of the impact she received a serious spinal injury, which required her to be transferred to hospital, ultimately undergoing surgery two days later. She has recovered from the surgery, but was left with disabilities and restrictions and faces further surgery.

The claimant issued a writ against RWE, claiming damages for personal injury. The claimant pleaded that RWE had breached its duty to take reasonable care of her to ensure that she was not exposed to the risk of injury during the tour on 100% Wild.

At trial, the Claimant relied only upon RWE, its servants or agents being negligent in that the master navigated the boat into an area where it was foreseeable that it could encounter large swell/waves which could endanger the safety of passengers seated near the front of the boat including the Claimant.

The judge stated the briefing given before the tour to the Claimant and other passengers was not sufficient to negative the duty of care owed by RWE to her and went to find that the master was not negligent as the probability of a sudden large wave appearing in those waters was remote.

The judge then went on to analyse the waiver and considered whether it indemnified RWE against the Claimant’s claim and concluded that although the master had not been reckless, the drafting of the indemnity was not limited to personal injury as it had also included property damage and was therefore ineffective.

It’s important to note that had RWE been negligent, the waiver would not have applied and RWE would have been liable to the Claimant in damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The post No Damages Award Due to NO Negligence Finding – A Wild Ride appeared first on A & E Legal.

Man’s Compensation Increased on Appeal

On 28 May 2011, the Appellant was at home reading the newspaper. Three men, forced their way into the house.  There had been a history of animosity between the Appellant and one of the three men. An altercation occurred and the three men assaulted the Appellant.

The Appellant made a claim for criminal injuries compensation.  In his application, he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear.  The Appellant also claimed that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of the attack on him.  His claim for criminal injuries compensation also included a claim for loss of earning capacity arising from the alleged PTSD.

In April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation (Chief Assessor) awarded the Appellant the sum of $24,601 for injuries sustained in the assault, medical reports and future psychological treatment expenses but no economic loss.

The Appellant appealed against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

Pursuant to provisions in the Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Chief Assessor but may also receive further evidence and information.  The District Court is not fettered by the Chief Assessor’s decision.

The Appeal began in January 2017.

The Appellant presented additional documentation on the hearing of the appeal.  This additional documentation consisted of the following:

  • Income tax returns and notices of assessment;
  • Payment summaries from the Australian Taxation Office;
  • A facsimile from the Department of Human Services to the Appellant’s legal representatives containing Centrelink claim history and payment information;
  • Records from the Sir Charles Gairdner Hospital; and
  • An affidavit of the Appellant.

Although the Chief Assessor was not prepared to allow any award for loss of earnings because in her opinion the Appellant’s capacity to work was influenced by many non-compensable stressors. She was further not provided with sufficient information to enable her to make any proper estimate of the contribution, if any, of the incident to his loss of earnings. On the subsequent information provided the Appellant would have earned approximately $50,000 per annum in the two years following the incident.

Based upon the above, the Appellant’s award was increased to the maximum sum allowable in terms of the act, namely $75,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Meet Simone McMahon, our newest addition to the A & E legal team.

Simone grew up in Perth attending St Norbert College before moving onto study a Bachelor of Laws at The University of Notre Dame.

After graduating from Notre Dame, Simone crafted her skills in the professional sector, undertaking roles with –

  • WorkCover WA – Conciliation & Review Directorate Dispute Resolution Officer
  • City of Belmont – Compliance Officer
  • QBE Insurance Case Manager – Workers Compensation
  • Shine Lawyers Brisbane QLD – PLT Graduate Placement

In 2017 Simone received her Supreme Court of Brisbane QLD Certificate of Admission as an Australian Lawyer.

While these roles gave Simone valuable experience, it is her role as Organ Donation & Transplant Foundation of WA Founder and CEO and extensive work within different charities around Perth that shows her true character. Simone currently has memberships and roles on committees such as

  • WA Department of Health Renal Executive Advisory Group
  • Donate life WA Organ and Tissue Donation Community Advisory Committee
  • International Society of Organ Donation and Procurement Member

Through Simone’s outstanding experience within the professional sector, it is clear helping and working with people in the community is where Simone’s true passion lies.  Her impressive list of awards and achievements are as follows –

  • Member of the Order of Australia 2013 – AM for long term contribution to the field of Organ and Tissue Donation Advocacy in Australia –
  • Lions Club Exemplary Service Award 2008 – Nominated by Victoria Park Lions Club for contribution to the WA community to the field of Organ and Tissue Donation
  • Winston Churchill Fellowship 2007 – A fellowship to travel to the US, UK and Spain to study the International Models of Organ and Tissue Donation
  • Browns WA Woman of the Year 2007 – In recognition of outstanding achievement as a Western Australian woman
  • WA Young Australian of the Year -2006/08 – A national award recognising outstanding achievement in providing voluntary services to the community in the field of organ and tissue donation –
  • Prime Ministers Centenary Medal – 2003 – This is an Australian commemorative medal, which marks the achievements of a broad section of the Australian community for contribution to the Organ Donation sector and for making our country and the wider world a better place
  • Western Australian Youth Awards Finalist 2002 – In recognition of outstanding achievement as a young West Australian
  • Principals Medallion 1999 – St Norbert College

Simone is a vibrant and friendly person who will make sure your case is handled thoroughly and professionally. She is the perfect fit for the A & E Legal team.

The post Meet Simone McMahon, our newest addition to the A & E legal team. appeared first on A & E Legal.