Workers compensation – work capacity decisions – Mark Grady

MKG-newFurther 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.… Read More

Journey claims and Magpies – Mark Grady

MKG-newOn 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.… Read More

Are heart attacks/strokes covered under workers compensation? – Mark Grady

MKG-newOn 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.… Read More

Citizen by birth or citizen by descent – Mark Grady

MKG-newSection 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).… Read More

Found the body but … – Mark Grady

MKG-newThe 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.… Read More

Journey Claims – Mark Grady

MKG-newIn 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 substantial connection between the employment and the accident‘.

The question therefore is ‘what is a real and substantial connection?

The two leading cases are:

  1. 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.
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Not wearing a seat belt cost $375,000 – Mark Grady

MKG-newEarlier 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. … Read More

Bloody Bike Riders!

MKG-newLast 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.

  1. 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.
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To Consent or Not to Consent

MKG-newAn 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.… Read More

When the police visit: Do you know your rights?

MKG-newRecently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?

The police can arrest you if:

  • you are committing an offence or
  • they have reasonable grounds to suspect you have committed an offence
  • you are breaching the peace
  • you have breached any bail conditions you may have
  • a warrant has been issued for your arrest or
  • you are to be served with an Apprehended Violence Order.
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