Category Archives: Workers Compensation

Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962″

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Legal Issues Bulletins – NSW Department of Education & Communities

The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.

As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.

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Sydney, Australia

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Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW)

ON 3 SEPTEMBER 2014, the NSW Government made the Workers Compensation Amendment (Existing Claims) Regulation 2014. The regulation reinstated some of the entitlements to weekly payments and medical and related benefits for existing claims (claims made and injuries received before 1 October 2012) which had been removed by the controversial 2012 amendments.

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Cunningham and Commonwealth Bank of Australia [2014] AATA 607

Cunningham and Commonwealth Bank of Australia [2014] AATA 607 (28 August 2014).

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Dust Diseases Tribunal | 21 July 1989

ON 21 JULY 1989, the Dust Diseases Tribunal of NSW (DDT) http://www.dustdiseasestribunal.lawlink.nsw.gov.au/ was established through the enactment of the Dust Diseases Act 1989 http://www.legislation.nsw.gov.au/viewtop/inforce/act+63+1989+FIRST+0+N/.

The DDT is a specialist tribunal with the exclusive jurisdiction to determine damages claims for death or injury arising from dust-exposure related diseases such as asbestosis and mesothelioma. The tribunal’s special purpose is to serve the interests of justice by expediting claims in circumstances where the claimants are in the advanced stages of illness.

The first judge to hear a case in the tribunal was Judge J L O’Meally AM RFD a tribunal Member (1989 to 1995), Senior Member (1995 to 1998) and President (1998 to 2011).

The Tribunal’s current judges are:

  • President Justice R O Blanch AM
  • Judge J P Curtis
  • Judge W P Kearns SC
  • Judge Finnane RFD QC
  • Acting Judge P J Johns

The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.

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Sydney, Australia

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Advertising personal injury services

Lawyers in NSW are banned from advertising personal injury services.

According to the NSW Law Society, the use of the following words is banned in lawyers’ advertising:

  • accidents
  • asbestos litigation
  • chemical spill injuries
  • car accidents
  • diving accidents
  • driving accidents
  • disability (subject to context)
  • dust diseases
  • hurt at work
  • hurt on road
  • injury law
  • medical malpractice
  • medical negligence
  • motor vehicle accident claims
  • motor vehicle collision claims
  • motor vehicle accidents
  • motor vehicle injuries
  • occupiers liability
  • pain and disability
  • personal injury
  • public liability
  • public place accidents
  • shopping centre accidents
  • slips, trips and falls
  • toxic exposures
  • victims compensation
  • victims of crime
  • work accidents
  • work place injuries
  • workers compensation

The relevant provisions which prohibit such advertising are contained in clauses 23 to 40 of the Legal Profession Regulation 2005 and clauses 74 to 80 of the Workers  Compensation Regulation 2003.

Clause 24 of the Legal Profession Regulation 2005 provides:

24 Restriction on advertising personal injury services

(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a
“personal injury legal service” (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).
Maximum penalty: 200 penalty units.
(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.
Note : A contravention of clause 75 of the Workers Compensation Regulation 2003 can also be a contravention of this clause.
(3) Evidence that a barrister or solicitor has been convicted of an offence under this clause or under clause 75 of the Workers Compensation Regulation 2003 is sufficient evidence of a contravention of this clause by the barrister or solicitor for the purposes of any proceedings under Chapter 4 (Complaints and discipline) of the Act.

Clause 23 provides:

23 Definitions

In this Division:

“advertisement” means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its effect or only effect.

“personal injury” includes pre-natal injury, impairment of a person’s physical or mental condition, and disease.

“publish” means:

(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or
(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
(c) broadcast by radio or television, or
(d) display on an internet website or otherwise publicly disseminate by means of the internet, or
(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or
(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.

“solicitor” includes the following:
(a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor),
(b) a solicitor corporation,
(c) an incorporated legal practice.

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Sydney, Australia

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ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18

ON 16 MAY 2014, the High Court of Australia delivered ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (16 May 2014).

The Workers Compensation Legislation Amendment Act 2012 extinguished injured workers entitlements to permanent impairment compensation under the Workers Compensation Act 1987 in claims where the permanent impairment does not exceed 10 percent. The Act preserved these entitlements for workers who made a claim for permanent impairment compensation before 19 June 2012. A transitional regulation made under the Act extended the disentitlement to claims brought before 19 June except for those in which permanent impairment compensation was “specifically sought”.

The worker in this case had brought a compensation claim before 19 June 2012, but permanent impairment compensation was not specifically sought until 20 June. The worker’s permanent impairment did not exceed 10 percent.

The Court of Appeal had found that the regulation was not valid and did not extinguish the worker’s entitlement to permanent impairment compensation.

Overturning the Court of Appeal decision, the High Court ruled that the regulation was valid and the worker was not entitled to permanent impairment compensation as because such compensation was not specifically sought before 19 June 2012.

http://www.austlii.edu.au/au/cases/cth/HCA/2014/18.html

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Sydney, Australia

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