Everingham Solomons Solicitors has seen significant growth over the last 12 months.
We have welcomed a number of new staff and our existing staff have continued to develop in their careers.
Recently we celebrated Nick Hawkins and Lachlan Ennis being admitted as Solicitors to the Supreme Court of New South Wales. Nick Hawkins works in our Property Law team and Lachlan Ennis works in our Family Law team.
Today, it is with great pleasure that I announce that Solicitors Libby Campbell and Sarah Rayner have been promoted to Associates.
Libby has been with our firm since 2017 and has been a shining light in the Workers Compensation and Personal Injury space.
Sarah has been with our firm since 2019 and has had a huge impact in our Property Law team.
Libby and Sarah have shown exceptional leadership qualities and we are so proud to have them as part of the Everingham Solomons team.
When the company was founded in Tamworth almost 150 years ago, it would have been hard to imagine it would grow to become one of the largest regional law firms in NSW.
With over 20 full-time lawyers, solicitors and conveyancers specialising in everything from property law, family law, criminal law, business law and personal injury, Everingham Solomons has all your legal needs covered. Helping You is Our Business so give us a call.
Click here for more information on Libby Campbell or Click here for more information on Sarah Rayner.
Further to Libby Campbell’s article last week in regards to hours of work and the calculation of pre-injury average weekly earnings (PIAWE), for work capacity decisions made on or after 1 January 2019, there is a new regime.
Work capacity decisions include decisions by the workers compensation insurer in respect to a worker’s capacity to work and their PIAWE.
Decisions in respect to PIAWE, which are generally mathematical calculations, require review of wages material in the 12 months prior to the worker’s injury and will be in the large part resolved by a review of the insurer, or failing that by an arbitrator of the Workers Compensation Commission.
All other decisions that would include decisions about a workers ability to work are more complex and require evidence to be gathered from medical professionals. The insurer will be asked to review their decision however, if the insurer is unswayed, then proceedings would be commenced in the Workers Compensation Commission and a decision made by an arbitrator.
The above pathways are new and only available for work capacity decisions made on or after 1 January 2019.
If you require assistance in respect to the above, please contact the writer at Everingham Solomons, because Helping You is Our Business.
On 19 June 2012 the Workers Compensation Act 1987 was substantially amended, one of those amendments was to greatly limit workers and their ability to claim benefits under the Workers Compensation Act for injuries sustained whilst on a journey to and from work.
In the case of Smith v Woolworths Limited (2017) NSW WCC 290 Ms Smith was employed by Woolworths and on the day of injury she drove her vehicle within the staff carpark. After parking her vehicle in the staff allocated carpark, she then walked along a walkway and just prior to going through the automatic doors, Ms Smith was attacked by a bird and she suffered a serious right eye injury.
The question was whether Ms Smith was still on a journey and if not, whether her injury arose during the course of her employment.
Arbitrator Harris decided that as Ms Smith had finished her journey as ‘She crossed the boundary of the land on which her place of employment was situated‘. It should be noted that the staff carpark and the complex are all under the one deposited plan.
It was held that Ms Smith was no longer on a journey, with the next question being whether the injury arose out of the course of her employment. It was held that Ms Smith was attacked by a bird in circumstances where the employment bought her to the very point where the injury occurred and hence on that basis the injury arose out of the course of her employment.
This case is a timely reminder as we enter the season of swooping magpies and the risk these native birds may pose to workers entering and leaving the workplace, as well as the entitlements available to workers if they are injured as a result of a swoop.
If we can be of any assistance please contact us at Everingham Solomons because Helping You is Our Business.
On 19 June 2012 section 9B of the Workers Compensation Act 1987 (section 9B) was introduced that provides that no compensation will be payable for people suffering from a stroke or a heart attack, unless the nature of employment gave rise to a significantly greater risk of the worker suffering the injury.
For heart attacks prior to 19 June 2012, the test was whether employment was a substantial contributing factor to the injury. Section 9B seeks to make the test more onerous on the worker.
In the normal course of events, the question to be answered is whether the work that the deceased was doing significantly heightened the risk of injury.
However in the matter of De Silva v Secretary, Department of Finance, Services & Innovation [2015] NSWWCC 279 (De Silva) it was held that if a person was put in a position by his employment and that gave rise to a significantly greater risk of injury then it was compensable.
In De Silva the deceased was in a motel room alone in Ballina away from his wife and family. There was no dispute that the only reason he was in the motel room in Ballina, was because of his employment. Mr De Silva had a heart attack and the medical evidence was that if he was accompanied, which he would have been in his own bed, then it was more likely than not that an ambulance would have been called and he would have survived the heart attack.
Thus it was decided that as Mr De Silva was alone at the time, as a result of his employment, this gave rise to a significantly greater risk of injury.
If you have issues with workers compensation please contact us at Everingham Solomons because Helping You is Our Business.
Section 44 of the Constitution has never been as interesting as it is now, especially in the seat of New England. There are five cases including our local member, who are to be referred to the High Court. The facts in each case are different but all involve s.44(i) of the Constitution.
Section 44(i) states that any person is disqualified if they are “a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”.
The section has been looked at by the High Court most comprehensively in Sykes v Cleary [2] [1992] HCA60 (Sykes case).
The facts in the Sykes case involve a Mr Delacretaz and Mr Kardamitsis both whom were born overseas. Both had utilised their foreign citizenship before becoming Australian citizens and the question was had they renounced their citizenship. It was held that they had not and both were ineligible to stand.
Justice Brennan said;
“to take an extreme example, if a foreign power were mischievously to confer its nationality on members of the Parliament, so as to disqualify them, it would be absurd to recognise the foreign law confirming foreign nationality”.
Justice Dean said;
“an Australian born citizen is not disqualified by reason of the second limb of s44(i) unless he or she has established, asserted, accepted or acquiesced in the relevant relationship with the foreign power”.
Each of the cases that will come before the High Court involve different facts, some of which are similar to those in the Sykes case but most of them are different. The questions that will need to be determined include does a foreign citizenship automatically disqualify a candidate, what amounts to reasonable steps to ensure you are a foreign citizen and is consent a consideration?
At Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
The recent case that has been reported regarding Matthew Leveson whose body has been found in the National Park south of Sydney, raises many interesting legal questions but not as many answers.
The facts in short are that in 2007 Matthew Leveson was killed and Michael Atkins was charged with his murder. Atkins was tried and in 2009 he was found not guilty of that murder.
There was subsequently a Coronial Inquest and Atkins refused to give evidence, as he is able to do, presumably on the basis that the evidence he gave may incriminate himself. The Coroner, to force Atkins to give evidence, subsequently gave him a certificate under section 61 of the Coroner’s Act, which means that evidence he gives cannot be used against him in any criminal proceedings.
In October 2016, Atkins gave evidence, however a lot of what he said, by his own admission, was untrue. This could have opened him up to being charged with perjury as the section 61 certificate only protected him from any murder charges.
Atkins then said to the Police, if you indemnify me from any charges for perjury I will take you to the body of Leveson.
There was subsequently a lot of a discussions between the Coroner, the NSW Attorney General, the Police and the family of the deceased. It was agreed that Atkins would show the Police where the body was, but only on the basis that he would not be charged with perjury.
Atkins subsequently showed the Police where the body was and it was exhumed a couple of weeks ago.
The question is, can Atkins be put back on trial for his involvement in the killing of Leveson? There would need to be fresh and compelling evidence that is admissible, that shows that Atkins was responsible for his death.
Knowledge of the place of the body would not be sufficient as he may have discovered it whilst bushwalking or by some other cause. Atkins DNA on Leveson would also not be enough, as they knew each other well and you would expect to find Atkins DNA on the body.
A farfetched example of what might be fresh and compelling evidence is, if a gun was found with the body and it was established that the cause of death was a shot from that gun. Further there would need to be fingerprints on the gun of Atkins. That may be fresh and compelling evidence.
What happens next, from a legal perspective, may not be fresh, but it will be compelling.
At Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
In NSW, if a person was on their way to or from work (known as ‘journey claims‘) and they suffered an injury, they have always been covered for workers compensation. That was up to 2012. In 2012 the Workers Compensation Act 1987 was amended and one of the changes that came in related to journey claims.
Section 10(3A) of the Workers Compensation Act 1987 provides that for journey claims there needs to be ‘a real and substantialconnection between the employment and the accident‘.
The question therefore is ‘what is a real and substantial connection?‘
The two leading cases are:
Singh & Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 – Ms Wickenden was working at the Krambach Service Station and travelled by way of motor bike in the daytime to and from work. On the day of the accident Ms Wickenden was asked to work longer hours for a period which meant that she finished work in the dark and whilst she was driving home a car travelling in the opposite direction, swerved to miss some cattle and collected Ms Wickenden. The question was whether there was a real and substantial connection between her employment and the accident. It was held that as her employer required her to work later than normal and therefore she rode home in the darkness and the darkness was one of the causes of the accident, there was a real and of substantial connection;
Namoi Cotton Co-Operative Ltd v Easterman (as Administrator of Estate of Easterman) [2015] NSWWCCPD 29. In that case the deceased worker was driving a vehicle home when she was killed. It was established that she fell asleep at the wheel. The applicant had worked 60 hours in the proceeding five day shift. As fatigue was the cause of the accident, and her employment was the cause of the fatigue, there was a ‘real and substantial connection between the applicant’s employment and the accident‘.
These decisions illustrate that employment does not need to be the sole cause of the accident. ‘Real and substantial‘ connection is a wider concept and captures scenarios where there is a more ephemeral connection between employment and the injury.
If you should have any queries in respect to journey claims and other workers compensation questions please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Earlier this year Judge Mahoney of the District Court reduced an award of damages of $1.57m by 25% because the injured passenger was not wearing a seat belt and got into a car with a person he knew or ought to have known was under the influence of alcohol.
The case of Vance v Chambers [2016] NSW DC 79 involved two friends who, after fishing and consuming alcohol together drove along a beach at Sandon River, just south of Yamba. The vehicle hit a ‘washout‘ on the beach and as a result the car being driven by the defendant rolled. The plaintiff was ejected from the car as he was not wearing a seat belt and suffered a number of injuries that included severe chest injuries, rib fractures, fractured skull, liver laceration and vertebral fracture.
The plaintiff was thrown from the car and knocked unconscious, only to be woken by a wave washing over him.
Such was the seriousness of the injuries that he was in hospital for 31 days.
The judge assessed the plaintiff’s loss and damages at $1,577,670. This was made up of general damages, past and future economic loss, domestic assistance as well as medical expenses.
The award however was reduced by 25% because of contributory negligence which meant that the award was reduced from $1,577,670 to $1,183,250. This was as a result of the plaintiff getting into a vehicle that he knew or ought to have known was being driven by an intoxicated driver and he was not wearing a seat belt.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Last December, the NSW Premier, announced a number of changes to the Road Rules Act (NSW) 2014 that commence on 1 March 2016. These changes affect cyclists, motorists and pedestrians and can be broadly split into three categories.
Drivers must give cyclists at least 1 or 1.5m of space. When driving past a cyclist in a 60kmph zone you must allow 1m and if its a100kmph zone, 1.5m must be allowed. To ensure the proper space is left for the cyclist, as long as a driver has a clear view of oncoming traffic, the driver is allowed to do a number of other things such as drive on painted islands and cross to the incorrect side of the road.
Cyclists over 18 must carry photo identification. The form of the required photograph for identification is unclear at the moment. The legislation does not appear to require a driver’s license or an RMS identification card, however this will need to be clarified.
Increased penalties for cyclists. These fines will increase so that they are in line with offences committed by motorists/motorbike riders:
not wearing a helmet $171 to $319;
running a red light $71 to $425;
riding dangerously $71 to $425;
holding onto a moving vehicle $71 to $319;
not stopping for pedestrians $71 to $425.
These are some of the increases and there are many others but those outlined above include the major changes.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
An Apprehended Violence Order (AVO) is a court order designed to ensure protection from violence, intimidation, harassment and stalking.
The person against whom the order is sought, the defendant, has two options, to consent to the order or to contest the order.
If you chose to consent to an AVO you can do so without admissions. This means that you are not agreeing to or admitting any or all or the particulars of the application. Rather, you are stating that you don’t object to the order being put in place because you are happy to comply with the prohibitions and restrictions sought in the application.
If you choose to contest an AVO, the matter will be listed for hearing and both parties, the applicant and the defendant, will have to provide evidence. The magistrate will then make a determination as to whether the order is warranted and if so, what prohibitions and restrictions on the behavior of the defendant are necessary or desirable to ensure the safety and protection of the applicant.
Once an order has been made by the Court it must be complied with. To knowingly contravene a prohibition or restriction specified in an apprehended violence order is an offence punishable by a maximum fine of $5,500 and or imprisonment for a period of up to 2 years.
Although consenting may often be the most expeditious way to dispose of an AVO, it needs to be remembered that breaching an AVO is a criminal offence.
If you require advice or representation in relation to an AVO matter the experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Everingham Solomons Solicitors has seen significant growth over the last 12 months.