All posts by Legal Helpdesk Lawyers

Solicitor of the Supreme Court of NSW, Federal Court and High Court of Australia. Public Notary in the State of New South Wales.

Capacity to make decisions

THE NSW DEPARTMENT OF ATTORNEY GENERAL & JUSTICE publishes the Capacity Toolkit, which is a guide to assessing one’s ability to make legal, medical, financial and personal decisions.

The ability to make their own decisions is known as “capacity”. If one is concerned of another’s capacity to make a decision for themselves, they must do a capacity assessment. Capacity assessments are often performed by family members, friends, carers, doctors, health care works, government workers, lawyers, bank managers or any person who provides services.

Capacity Assessment Principles are as follows:

  1. Start by assuming the person has capacity to make decisions.
  2. Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
  3. Never assume a person lacks capacity because of appearances.
  4. Assess the person’s decision making capacity, not the decision they make.
  5. Respect a person’s privacy.
  6. Substitute-decision making is a last resort.

A person who is assessed as not being able to make a decision may need a “substitute decision maker”.

Disputes about capacity may be taken to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) of Level 3, 2a Rowntree Street, Balmain NSW 2041, tel 1800463928.

Further information can be found at the Aged Care Rights Service and NSW Government Diversity Services.

Lawyers

Sydney, Australia

1300 00 2088

Law Handbook

An copy of the Law Handbook may be accessed online by visiting the Legal Answers website of the NSW State Library. Visit http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/index.html

Topics include:

About the legal system – Ch 1
Aboriginal people and the law – Ch 2
Accidents and compensation – Ch 3
Arrest interrogation and bail – Ch 4
Assistance with legal problems – Ch 5
Banking – Ch 6
Bankruptcy – Ch 7
Children and young people – Ch 8
Community organisations – Ch 9
Complaints – Ch 10
Consumers – Ch 11
Contracts – Ch 12
Copyright – Ch 13
Court – Ch 14
Credit – Ch 15
Criminal law – Ch 16
Debt – Ch 17
Disability law – Ch 18
Discrimination – Ch 19
Dispute resolution – Ch 20
Domestic violence – Ch 21
Driving and traffic law – Ch 22
Drug offences – Ch 23
Employment – Ch 24
Environment and planning – Ch 25
Family law – Ch 26
Freedom of information – Ch 27
Health law – Ch 28
Housing – Ch 29
Immigration – Ch 30
Insurance – Ch 31
Internet law – Ch 32
Media law – Ch 33
Neighbours – Ch 34
Prisoners – Ch 35
Refugees and Australia’s humanitarian program – Ch 36
Same-sex couples and their families – Ch 37
Sexual offences – Ch 38
Social security entitlements – Ch 39
Superannuation – Ch 40
Taxation – Ch 41
Victims support – Ch 42
Wills, estates and funerals – Ch 43

Lawyers

Sydney, Australia

1300 00 2088

CTP Claim Form

The new Personal Injury Claim Form may be downloaded from the State Insurance Regulatory Authority (SIRA) (formerly the Motor Accidents Authority).

A claim for damages for personal injuries arising from a motor accident may be made by sending a completed form and medical certificate to the CTP insurer of the vehicle at fault. Claims must be lodged within 6 months of the date of accident.

http://www.maa.nsw.gov.au/__data/assets/pdf_file/0005/19652/personal_injury_claim_form_MAA21.PDF

Lawyers

Sydney, Australia

1300 00 2088

Oscar Wilde | 25 May 1895

ON THIS DAY in 1895, Oscar Wilde was convicted of gross indecency and sentenced to two years hard labour.

http://www.oldbaileyonline.org/browse.jsp?id=def1-425-18950520&div=t18950520-425#highlight

Lawyers

Sydney, Australia

1300 00 2088

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 | 25 May 1966

ON THIS DAY in 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).

http://www.bailii.org/uk/cases/UKPC/1966/1.html

A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.

Lawyers

Sydney, Australia

1300 00 2088

Rights of the Terminally Ill Act 1995 (NT) | 25 May 1995

ON THIS DAY in 1995, the Northern Territory Parliament passed the Rights of the Terminally Ill Act 1995 (NT).

http://www.austlii.edu.au/au/legis/nt/consol_act/rottia294

The Act, which took effect on 1 July 1996, legalised euthanasia in the Northern Territory until the Commonwealth Parliament subsequently enacted the Euthanasia Laws Act 1997.

Lawyers

Sydney, Australia

1300 00 2088

Negligence – Duty of care – Safe system of work – Work injuries

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

Lawyers

Sydney, Australia

1300 00 2088