Nathan Edwards-Bonello featured on 2GB discussing personal injury claims – 23 February 2021

Tuesday, 23 February 2021

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DK – Deborah Knight / NEB – Nathan Edwards-Bonello–   C1, 2, 3, etc – Callers

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Read the transcript below:

DK      It’s time for some free legal advice. Legal Matters thanks to Turner Freeman Lawyers. We’re talking personal injury today and you might have been hurt in a car accident, on a ride, at a supermarket – maybe just walking in public. Maybe you suffered an injury on your way to work and you think that you might have rights to compensation – call in now – 131 873 and as always we’ve got a $100 Westfield Voucher for the caller with the best question during our Legal Matters segment. Nathan Edwards-Bonello is a partner at Turner Freeman Lawyers who is on the line for us now.  Nathan, thanks for so much for joining us.

NEB   Thank you very much.

DK      We’ll get to some calls in a moment – they are already coming through – 131 873, but I wanted to raise with you this case out of Victoria where a woman who was skydiving, she sued the company after she broke her spine in a heavy landing – an awful accident – terrible to have to had to endure – but her case was thrown out because of the inherent risk and I know this was in a different State, but inherent risk – what is it when it’s used as a defence in cases like this?

NEB   So I mean – look – it’s good to put some context to the case itself which will then lend itself to why the Court did what it did.  As you rightly put it, it’s a Victorian case and although it’s very similar to the NSW Legislation being the Civil Liability Act, it is in fact a different State and jurisdiction.

DK      Sure.

NEB   But – look the case involves a young lady who was participating in a Tandem Skydive jump a pretty – probably medium to high altitude and she landed heavily fracturing her lumbar spine and she had a spinal fusion and the question arose as to whether or not the Tandem instructor failed to exercise reasonable care for her safety and whether or not when she landed heavily, there was something by way of a lack of due care and skill on behalf of the instructor. Now, those two points are instructive as to whether or not there was a materialisation of the inherent risk that could have been avoided by a reasonable exercise of risk or care – so what they found was, that they went to the video of it luckily, that the Tandem instructor wasn’t negligent because he didn’t fail to exercise reasonable care because what they actually found on expert evidence was there was an isolated localised downdraft that they encountered and the Tandem – the instructor actually did quite well in landing and in unforeseen circumstances. So, I guess the take home from it is that particularly if this was applicable in NSW, is that if you are participating in a dangerous recreational activity, which this is as defined by the Courts then you have to assume a level of – in NSW we call it “obvious risk” but in Victoria – given it’s the Wrongs Act, it’s caused a materialisation of inherent risk.

DK      Because whenever we go about those sort of risky behaviours, whether it be hot air ballooning or jet-sky riding or whatever, you sign a waiver and that’s part of the deal. Does that rule you out from getting compensation if something goes wrong?

NEB   Oh – it’s a really good point you raise. They consider the waiver in that case and other cases in NSW – that is a particular – that’s a separate issue – when they are talking about a materialisation of inherent risk, it’s an over-arching defence that a lot of these providers will use. Like for example in NSW, if you are participating in say a horse-riding event – you assume the risk that if a horse could buckle – if there’s a – some type of noise or shadow or stimulus that a horse may buckle and you may fall off the horse. So if you are riding a horse and there’s another intervening event which causes the horse to buckle and you fall, then that’s an obvious risk of that particular recreational activity.

DK      Because that’s the case that you were involved in – with involving a horse at the Wagga Showground. A woman – a participant attempting to sue the Show Society after the horse threw her during warm up.

NEB   Yes that was an interesting case in the Court of Appeal last year where there was an equestrian rider who was warming up prior to the event and the lawyers ran an argument that – well look, she was warming up and there were kids who were making some noise in a nearby ____mark area and given the noise from the children, it spooked the horse and she’s fallen off the horse and yeah – sustaining great injuries but what the Court of Appeal found was that – because it went to – originally to the Supreme Court and then it was appealed to the Court of Appeal – was that in that – and it’s unusual – in its – counterintuitive – because when you think of these things, you think of yourself and you say – okay  – well look, I’m on a horse and I couldn’t anticipate that a child couldn’t anticipate that a child would scream causing the horse to buckle.  It’s kind of a – it’s a very counterintuitive legal kind of ratio because logically as humans, we think – well hang on a minute, how can that be an obvious risk? Well what the Court of Appeal found was, you can’t demarcate or distinguish the warm up from the actual competition and one of the Justices actually said that horses aren’t bomb proof and at any time, horses may be spooked by a noise, a shadow or a stimulus and serious injury can happen. So, if you are going to participate in what they deemed to be a recreational dangerous activity, then that’s an obvious risk that can happen, i.e. you can fall off a horse.

DK      Yeah and the ruling was in favour of the defendant, so the Wagga Show Society. But…. at the end of the day, if you do sign a waiver, it doesn’t rule out that you could have rights to compensation does it?

NEB   No it doesn’t.

DK      Okay.

NEB   Not it doesn’t.

DK      Alright. Let’s get to some calls. Dan has got a question for you. G’day Dan.

C1      How are you going guys? Um, I’m just not sure about my situation right now – hence why I’m calling. I had an accident at work where I’ve not got a bulged disc in my back but it wasn’t so much an accident – I was just walking down a flight of stairs and I sort of felt ………..  But as I’ve sort of been toing and froing to doctors and physios and things like that. They’re sort of – they’re starting to paint a picture of how this accident may have happened and it’s just like particular _____________ it and twisted – I would do it – work repetitively day after day and I’m sort of not sure if whether – you know – there’s avenues of compensation or whether I should be going down that road because, you know in my head it feels like that’s how this injury has happened.

DK      So it’s not a particular single incident but it’s a repetitive strain that could well have caused the back injury. Would Dan have potential rights here Nathan to compensation?

NEB   Yes – it sounds like what you’ve got is commonly called a “nature and conditions” type claim or a disease claim – so under the Workers Compensation Act, you can have all different types of mechanisms of your injury – you can have a frank injury, i.e. you’re walking down stairs, you slip and fall and you sustain a frank injury or, it sounds to me although we need to investigate it further, but it does sound to me you’re lower back injury is from what we call a nature and conditions type injury which means over a long period of time of doing the same thing, lifting, going up and down stairs, you ‘ve sustained a disease style injury in the course of your employment. So you would have a claim – you just have to explore the pathology of your lumbar spine injury and how it came to be and when you first reported it and when the pathology first arrived and when you spoke to your doctor about it and then gather evidence surrounding that.  You definitely have a claim

DK      Alright Dan.

NEB   You definitely have a claim – you definitely have a claim.

DK      Yeah – I might get you to stay on the line Dan – we’ll get your details and you can get in touch with Nathan directly and follow that up.   Anthony’s called in.  Hi Anthony.

C2       How are you going?

DK      Yeah good.  What’s happened with you?

C2       I’ve got – well I found out that I’ve got chronic tennis elbow and carpel tunnel and that sort of thing. Now I’ve been putting it up –up with it for years and years thinking it was – I thought it was gout but anyway….. Now I’ve got to that stage where I can’t work. I’ve been to surgeon or specialist and she said basically it’s stuffed – find a new job.

DK      And what, you’ve got physical work? What do you do?

C2       Plumber…………

DK      Okay.

C2       I haven’t done that – I’ve been doing it on and off. But, I suppose that was my primary trade. My job. So, I’ve had to diversify and try and find other jobs but no-one wants to hire a 50 year old plumber.

DK      Well alright. Let’s see if Nathan’s got some advice for you. What would you suggest Nathan?

NEB   Are you self-employed Anthony? Or…….

C2       I am…..

NEB   Are you a self-employed plumber or you were working for someone at the time or…..?

C2       Well the thing is, it’s been ongoing for years and………

NEB   Yes……. Anthony it’s similar to the other caller – is what we need to determine is (1) that your employment was a substantial contributing factor to your tennis elbow or to your right elbow and if we can prove that it was, that over a period of time you’ve been using your elbow and at that time it’s pretty easy to prove – you know – you are lifting up hot water tanks, copper pipes, this that, the other – it’s heavy manual work, as long as you’ve made reporting(s) of it to your GP, which it sounds like you have because you’ve seen a surgeon, there’s no reason why you wouldn’t have a disease style injury or a nature and conditions type claim against your employer or even against your own insurance as a self-employed plumber. But it sounds like to me that you probably also benefit from an advice on TPD because …….

DK      So a total and permanent disability?

NEB   You mention………. yeah that’s right. Because you mention that you might not be able to work again or something to that tenor. If’ that’s the case, then your solicitor will look at both the workers comp claim – it should be fairly straight forward by the sounds of it – and also a total and permanent disablement claim depending on what type of insurance you have and being a plumber, you’re probably with someone like Cbus or Australian Super – probably Cbus and we can look to see if you’ve got TPD insurance and income protection insurer. So, there’s a couple of different options for you – so it’s not all doom and gloom – you’ve probably got a couple of good things you can look at.

DK      Alright – stay on the line Anthony – we’ll put you in touch directly with Nathan to explore that further. So it looks like you could well have a good case. James has also got a question. G’day James.

C3       Hey Deb and Nathan. I was injured at work in 2019 – September 2019. It was reported – it went through – I’ve been on workers comp since then. I’ve had MRI’s and my left knee is completely destroyed – I need a complete knee replacement – I need surgery on my right knee.  iCare – the insurance company – they haven’t really been forthcoming. I’ve been told by somebody in the industry that basically they’re just holding off until 24 months plays out and then they can dump me off workers comp and that will be the end of it. So I want to know – do I have a claim?  …….. and go and see a lawyer?

DK      Nathan?

NEB   Yeah. So it sounds like to me that you’ve got a treatment dispute – so what happens is sometimes the insurance companies and iCare, they won’t deal with it for want of maybe letting it drag out a little bit because there’s limitation periods on medical expenses depending on your last date of weekly payments, but to put it simply, what you should do immediately is what we call a future treatment dispute or a Section 60 – sub section 5 dispute.  So what you need to do is come and see a lawyer – get your medical evidence on for the knee reconstruction or the knee replacement or the ACL that you need. We gather evidence from your surgeon and your GP and then we put on a —– we write to the insurance company asking them to review it and if they fail within 14 to 21 days, we file an Application to Resolve a Dispute in the Workers Compensation Commission.  So to put it simply, yes you do have a claim.  It’s called a future treatment dispute which we’ll argue that you need surgery for your knee.

DK      Okay – alright. James, again – stay on the…..

NEB   And then after that you would have – and then after that you would – sorry to interrupt you…… and then after that you would have a Section 66 claim for lump and then hopefully if – depending on what your level of whole person impairment would be, you could potentially have other common law claims directly against your employer depending on the factual matrix of the case.

DK      Which is all good news that you can follow up on that. Stay on the line James and we’ll put you in contact with Nathan directly. Just a general question from Felix because we’re up against time here but he’s wondering is there a time limit on personal injury claims?

NEB   Yeah – look that’s a fairly expansive question – it depends on – so personal injury encompasses as you’d know, workers comp; motor accident; medical negligence; _______ torte etc – but in a general sense, it’s 3 years from the date of injury and say if you injured yourself on 23 February 2021, you’d have to commence proceedings in Court by 23 February 2024. But it’s also in a particular sense – it’s based on the date of discoverability, so if you’re a child and you weren’t advised of a limitation period or you didn’t discover the injury until 2 or 3 years later.

DK      There’s a bit of wriggle room there – a bit of …………. but generally run 3 years. Nathan, we are out of time but unfortunately we didn’t get to all the calls but will address it again in future weeks. Thanks so much for joining us.

NEB   Thank you for your time, I appreciate it.

DK      There he is.  Nathan Edwards-Bonello – and we’ll give James from Northmead who said he injured his knee at work – our $100 Westfield Voucher. If you want to get in touch with any of the lawyers at Turner Freeman directly – their website: turnerfreeman.com.au or their number 13 43 63.