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Month: February 2023

Home › 2023 › February
Injury Caused by Livestock Straying onto Road - Your Rights

By Fortitude Legal Admin

Being regional lawyers, we regularly come across injuries on the road caused by straying livestock.  The presence of a cow, horse or sheep on a public road does not of itself enable an injured motorist to obtain compensation from the owner of the livestock in the event of injury.

In order to be entitled to compensation for a collision between a motor vehicle and livestock, a claim for compensation must be lodged with the Transport Accident Commission (hereafter referred to as the TAC).  Should the claim for compensation be accepted, the TAC will be required to pay No Fault entitlements in accordance with the Transport Accident Act 1986 (Vic).

No Fault Entitlements

No Fault entitlements payable by the TAC include:

  • Medical and Like Expenses
  • Income Benefits
  • Impairment Benefit

These benefits are payable in circumstances where there is a collision between a motor vehicle and livestock, irrespective of whether the owner of the livestock is found tobe at fault.

Serious Injury

When an injury occurs as a result of a collision between a motor vehicle and livestock, the injured motorist is required to demonstrate that they have suffered from a serious injury prior to brining a common law claim.

A serious injury can be proven by establishing a permanent whole person impairment of 30% or more in accordance with the AMA Guides 4th Edition; or

Demonstrating a serious injury via the “narrative test”.  The narrative test defines serious injury as:

  • Serious long-term impairment or loss of a body function; or
  • Permanent serious disfigurement, such as scarring; or
  • Severe long-term mental or severe long-term behavioural disturbance or disorder; or
  • The loss of a foetus.

Initial application via the narrative test is made to the TAC.  Should the TAC deny the serious injury application, a court proceeding is able to be issued to request a County Court Judge to grant leave to the injured party to proceed with the claim.

Negligence

In order to successfully obtain damages from the owner of livestock the following would need to be established:

  1. The identity of the party responsible for keeping the livestock contained (i.e. the owner of the livestock or the owner of the property from where the livestock has strayed).
  2. The party responsible for keeping the livestock contained has failed to take reasonable steps to keep the livestock on the private property, which in turn has led to the transport accident. For example, it may be able to be demonstrated that the owner of the livestock has inadequate fencing or has left a gate open.

Often such landowners will hold policies of insurance, which include public liability coverage.

There may be circumstances where the owner of the livestock will not be found to be negligent.  For example a livestock owner may argue that they are not at fault when cows escape from a paddock as a result of tree unexpectedly falling over within a paddock and taking down a fence.

The circumstances of negligence involving livestock can be complicated and often require early investigations to ensure that the necessary evidence to prove negligence against the person(s) responsible for the livestock.

If these steps are not taken at an early stage, the injured party may lose the opportunity to obtain damages in relation to their injuries.

Damages – What is Available?

When the injury occurs as a result of a collision between livestock and a motor vehicle, damages may be available for pain and suffering and for pecuniary loss.  As the Transport Accident Act applies to these claims, the current threshold to be entitled to receive compensation for pain and suffering and pecuniary loss is currently set at $59,150.  If a claimant does not breach the threshold, they would not be entitled to receive any compensation.

The law currently sets a statutory maximum of $1,331,890 for pecuniary loss and a maximum of $591,910 for pain and suffering damages.

Please note that the common law time limitation to proceed with a claim via the transport accident act is 6 years for an adult.  Please note that extensions of time can be granted in exceptional circumstance and that alternative time limitation periods may apply in relation to minors or people under a disability.

 

Forced Adoption - Compensation Scheme Announced

By Fortitude Legal Admin

If you have been impacted by forced adoption practices, you may be entitled to bring a common law claim and sue the relevant institution for compensation.

In 2021, the Parliamentary Inquiry into Historical Forced Adoption in Victoria uncovered that thousands of women who gave birth between 1958 to 1984 suffered trauma as a result of forced adoption practices by hospitals and other organisations. Women were often sent to institutions which were run by religious and other bodies. Sadly, many of those women were subjected to abuse as well as cruel and degrading treatment, including being restrained (either by medication, physical force or violence), being separated immediately from their newborn baby, and being coerced into signing consent forms for the adoption of their baby, against their wishes.

At Fortitude Legal, our Managing Director and Personal Injury Specialist, Katalin Blond, and her team will handle your matter sensitively and with respect.

What compensation can I claim?

You may be eligible to claim the following types of compensation for your psychological injuries:

  • Pain and suffering;
  • Past loss of earnings and future loss of earning capacity (including superannuation);
  • Past and future medical treatment;
  • Past and future gratuitous care (for example care provided by family or friends);
  • Aggravated or exemplary damages, punishing the individual perpetrator or the institution who failed to protect you.

You may also seek a personal response or an apology from the responsible institution.

Is there a redress scheme?

In March 2022 the Victorian Government announced $4,000,000 of funding to design a redress scheme for mothers impacted by forced adoption. The Government indicated that the scheme will provide compensation, counselling support and the option of integrated birth certificates, listing both the biological and adoptive parents.

On 26 October 2023, the Victorian Government announced a payment of $30,000 to birth mothers affected by forced adoption practices, together with other supports.  Whilst full details of the scheme are yet to be provided, the Government has indicated that application for the Scheme will open on 1 February 2024.

At Fortitude Legal we provide a free no obligation initial appointment to those directly impacted by Historical Forced Adoption Practices.  We will register your interest in applying for compensation and provide advise on any other potential rights you may have.

What support services are available?

If you have impacted by forced adoption practices, you can contact the following organisations for psychological support:

Please call our friendly team of expert personal injury lawyers to have a free and confidential chat about your potential entitlements.

child abuse

By Fortitude Legal Admin

Children and teenagers spend most of the day at school where they deserve to feel safe. Students are in a vulnerable position at school, being in the care, supervision and control of teachers and education support staff such as aides, counsellors and other employees.  Sadly, the Royal Commission into Institutional Responses to Child Sexual Abuse revealed many children have suffered from sexual and physical abuse in Victorian schools. Perpetrators are highly manipulative, using a variety of techniques to groom students over a period of time, to control children and to try to stop them from disclosing the abuse.

Teachers and staff at public, private, and boarding schools have a duty of care to take all reasonable precautions to reduce the risk of child abuse being committed by individuals associated with the school. This duty is non – delegable and applies to principals, teachers and all other staff working with children and extending to all interactions at schools and events off campus, including excursions, camps, sporting activities, competitions, music performances, tutoring and other interactions beyond school hours.

Schools have a responsibility to take reasonable care to reduce the risk of physical and sexual abuse. This can include, for example:

  • Completing background checks during recruitment of staff, volunteers and student teachers including Criminal Record Checks and Working with Children Checks;
  • Ensuring adequate supervision of teachers and other staff at all times;
  • Undertaking risk assessments;
  • Complying with existing policies and procedures;
  • Investigating and responding promptly and thoroughly to any complaints and allegations of inappropriate behaviour.

In addition, all Victorian schools must abide by the 11 compulsory minimum Child Safe Standards and comply with mandatory reporting obligations. These reporting obligations require teachers and other staff to make a report to Child Protection (the Department of Families, Fairness and Housing) as soon as reasonably practicable, upon forming a belief on reasonable grounds, that a child is in need of protection from physical injury or sexual abuse.

Children who are victim – survivors of physical and sexual abuse may be entitled to bring a compensation claim against the school and/or the perpetrator of the abuse. The team of local lawyers at Fortitude Legal are experienced in representing victim – survivors and have successfully obtained compensation for students who have been abused in educational settings.

Parents and students who are affected by child abuse can contact the following organisations for support:

If you would like to have a confidential chat with our expert lawyers, please contact your local team at Fortitude Legal who will handle your enquiry sensitively, discretely and confidentially.