ByLawyers News and Updates

Workers Compensation amendments – NSW

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The next tranche of workers compensation amendments under Schedules 1 and 2 of the Workers Compensation Legislation Amendment Act 2018 commence 1 January 2019, providing for the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment.

There is no commencement date yet for Schedule 3 of the amending Act, which provides for the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

Provisions removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury, have already commenced.

The By Lawyers Workers Compensation (NSW) publication has been updated to deal with these amendments.

Personal Injuries – Organisational child abuse claims- VIC

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The By Lawyers  Victorian Personal Injuries Commentary has been updated by our author, barrister Nawaar Hussan, to assist practitioners who might be instructed to bring organisational child abuse claims for personal injury, or wrongful death.

Under Part XIII Wrongs Act 1958, organisations are required to take reasonable care to prevent the abuse of children under their care, supervision or authority. Victoria was the first state to introduce such legislation following the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Our commentary discusses the mechanisms for establishing a breach of duty under section 91 of the Act as well as the absence of any limitations period for personal injury claims arising from organisational child abuse, which reflects the Royal Commission’s finding that the average period for disclosure by victims of child abuse is 23.9 years. The limitation period for wrongful death claims is 3 years from when the plaintiff learned of the deceased person’s death.

With trademark By Lawyers practicality, the commentary also covers the type of evidence that is useful in supporting a claim for organisational child abuse.

After the work of the Royal Commission, organisational child abuse claims have been increasing. The By Lawyers Personal Injuries Guide assists practitioners to act for clients who may have such a claim.

Workers Compensation and Motor Accident changes – NSW

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The Workers Compensation Legislation Amendment Act 2018 amends both the Workers Compensation Act 1987 and the Motor Accident Injuries Act 2017.

Some provisions of the amending Act have now commenced, namely those removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury.

Schedules 1, 2 and 3 of the amending Act, which are yet to commence, provide for:

  • the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment;
  • the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with a new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

The By Lawyers NSW Workers Compensation and Motor Vehicle Accident publications have been updated to deal with these amendments.

Indexation of maximum costs – Motor accident injury claims – NSW

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Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Personal Injury Victoria – Commentary update

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Commentary update for new Practice Note PNCLD 2-2018

There has been a commentary update to the By Lawyers Personal Injury Guide for Victoria by our author, barrister Nawaar Hassan, to reflect the changes in practice and procedure in the Common Law Division, with the introduction of the new Practice Note PNCLD 2-2018 which commenced on 1 August 2018.

Key points of the update

The new practice note:

  • Disbands the Civil Directions Group, with directions and orders now being managed by the Commercial and Common Law Registries;
  • Introduces an obligation on the plaintiff to file a ‘Mediation Results Order’ where proceedings are settled at or after mediation; and
  • Covers the practice and procedure in relation to eCourtbooks, which must be provided in addition to a hard copy Court Book from 1 August 2018.

Relax!

By Lawyers always keep you up to date with developments in practice and procedure in the courts covered by our Guides.

Motor vehicle accident – NSW – Calculating interest

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New commentary has been added to the Motor Vehicle Accident (NSW) Guides regarding how to calculate a claim for interest for the period from when the loss to which the damages relate was first incurred, until the date on which the damages are awarded.

The amount of interest is to be calculated in accordance with the principles ordinarily applied by a court for that purpose. The rate of interest is to be three-quarters of the rate prescribed for the purposes of CPA s 101: s 4.16(5) – with the “prescribed rate” being the rate of interest prescribed by reg 36.7 of the UCPR.

Podcast – Personal Injury Guide – Victoria

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If you are wondering what all the fuss is about with By Lawyers new Personal Injury Guide for Victoria, listen to this podcast from our Senior Consultant and Editor Brad Watts explaining the content and advantages of this newest addition to the By Lawyers litigation guides.

Brad takes you through the new guide from start to finish and discusses key pieces of commentary and the helpful precedents that make it easy to represent a client with a personal injury claim. The content discussed includes:

  • Limitation periods and taking proper instructions
  • Costs agreements
  • Assessing the viability of a personal injury case – elements of negligence under the Wrongs Act
  • Supporting and preparing the claim – gathering evidence from the client and witnesses
  • Settling the claim early through mediation and offers of compromise
  • Managing the case in court

You can access this episode on Soundcloud – or click below to listen!

New Guide – Personal Injury – Victoria

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We are delighted to announce the launch of the latest addition to By Lawyers’ Injuries publications, being a Personal Injuries Guide for Victoria.

This publication covers all aspects of advising and representing clients with personal injury claims under the Wrongs Act 1958.

The publication contains helpful commentary and precedents for conducting a claim from start to finish.

Commentary

The detailed and practical commentary discusses all aspects of personal injury claims, including:

  • Limitation periods
  • Taking comprehensive instructions
  • Establishing a duty of care
  • Establishing a breach of duty
  • Factual causation and scope of liability
  • Particular negligence situations such as occupiers’ liability
  • Defences, including obvious and inherent risks
  • Damages
  • Supporting and preparing a claim
  • Mediation
  • Offers of compromise
  • Costs considerations
  • Going to court – Supreme Court and Country Court procedures.

Precedents

Easy to use precedents provided for each stage of the matter include:

  • Retainer instructions
  • Initial letter to plaintiff
  • Costs agreement
  • Letter to medical panel
  • Letter to plaintiff advising on mitigation of damages
  • Example content – pleading and particulars
  • Brief to counsel
  • Subpoenas and Notices to produce
  • Authority and instructions for payment of settlement or award

Before advising a client, it is important to understand the nature and extent of the restrictions imposed upon claims and damages by the Wrongs Act, as well as the defences created.

The By Lawyers Personal Injuries Guide will enable Victorian practitioners to confidently assist clients with personal injury claims.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

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