Author: cckbfortlegal18

Having read a recent article “Vicious Cycle” in the Geelong Advertiser on 29 November 2018, Tom Burgoyne of our Geelong office had cause to reflect on an article that appeared on 26 June 2013, “Motorbike Crash Crisis”.  These are Tom’s thoughts:

As noted in the “Vicious Cycle” article there were said to have been 84 motorcyclists hospitalised in the last year as a result of transport accidents on roads in our region.  There were said to be 4 fatal transport accidents which took the lives of motorcyclists.  Looking back at the article from 2013 it was noted by the CEO of the Transport Accident Commission (TAC) at that time that “The statistics show the number of people needing more than 14 days hospitalisation after a crash is down by 45 per cent…so we know some improvements are being made”.  So, what has happened?

In my experience these accidents arise from a myriad of causes.  Victoria Police have noted speed, most particularly along our coastal roads as a factor for motorcyclists.  However, there are many safety-conscious motorcyclists who have sustained injury due to the inattention of drivers of 4-wheeled vehicles.

Safety and not blame is at the core of the TAC’s latest campaign “Driver Think Rider/Rider Think Driver” and I applaud this.  It strikes at the heart of the issue:  reciprocity of respect among road users is key.

Research from the Monash University Accident Research Centre is cited as revealing “a third of all motorcycle injury crashes occur on regional roads” .  With the inevitable rush of the festive season upon us, it is indeed time for patience and respect for all road users.  No family should suffer empty seats at their table.

The role that cyclists play as road users has become a topic of interest in recent times.  Demands have been made for cyclists to, amongst many other things, register their bicycles and pay an insurance levy to cover any claims that may be made as a result of a transport accident under the TAC scheme.

It is important to recognise that cyclists are amongst our most vulnerable road users and have been pilloried, whether right or wrong, for a reported failure to adequately abide by the road rules.  A lot of the venting is typically directed at the highly visible lycra wearing cyclists who enjoy riding their bike as a mode of transportation in addition to a means of improving health and well-being.

Whilst opinions abound about the failure of cyclists to pay a registration and the potential drain that cyclists may pose on the TAC scheme, it has recently been suggested that it may be appropriate to relax helmet laws throughout Australia.  The TAC scheme provides compensation to people injured as a result of a transport accident and covers cyclists in many instances.  The removal of the mandatory requirement for cyclists to wear helmets will greatly increase the risk of injury and death to cyclists.

Victoria has the proud history of being the first jurisdiction in the world to make helmets compulsory.  We understand that the party behind the push is not suggesting that it doesn’t see the benefit of helmets, just that there should be a right for an adult, in certain low-risk circumstances, to choose whether to wear a helmet.  We understand that they currently continue to support the requirement for a helmet when riding on the road.

The removal of the need to wear a helmet, even in limited circumstances, in our view would lead us down a slippery slope.  Mandatory helmets draw a clear line in relation to community expectations and avoid grey areas.

Helmets are a matter of life and death.  A small restriction on our liberties now is worthwhile to avoid death or a lifetime of suffering for injured cyclists and their loved ones.

 

Whilst most members of our community are aware that the TAC is the statutory insurer responsible for paying compensation to those injured in a transport accident, fewer are aware of the responsibilities that are delegated to our road authorities.  Our responsible road authorities include local councils and VicRoads.

Road authorities are responsible for construction, inspection and maintenance of our roads.  In circumstances where there is a hazard, of which the road authorities are aware, they are responsible for the investigation and rectification of the hazard.

Due to limited budgets, growing populations and expanding road networks, road authorities are under pressure to adequately maintain our roads. Sadly, regional people continue to be over represented in our road toll, with road infrastructure continuing to play a part in regional accidents.  Accident hot spots continue to exist on our road networks.  Of recent times in Ballarat, high profile accidents on Cherry Flat Road and the intersections along Sturt Street have made the state of our regional road infrastructure front of mind. A number of accidents in the Geelong region, such as at the intersection of Orton Street and Presidents Avenue in Ocean Grove, also highlight the need for road authorities to monitor and adapt their designs of existing dangerous intersections in line with community expectations around safety.  Listening to local residents should be at the heart of such reviews.

Whilst increased investment in our regional roads is a must to keep our friends and families safe,  our regional communities can assist the road authorities in the exercise of their responsibilities by providing prompt notification of hazards to ensure that improvements can occur expeditiously.

For those injured where the condition of a public road or infrastructure was a contributing factor, if commencing proceedings it is important to be aware that the Road Management Act requires a claimant to provide written notice of the incident to the responsible road authority within a “prescribed period”.  The prescribed period can be as short as 30 days from the date of the incident.  Failure to provide written notice within the prescribed period may prejudice a claimant’s ability to successfully prosecute a claim.

Utilisation of the notification provisions may also help to avoid harm to other road users.  Notification may lead the responsible authority to inspect the condition of the road or infrastructure and undertake repairs.  If a report is created by the responsible authority, it is required to provide a copy of the report to the person who provided the notice.

The completion of the notice of incident requires prescribed particulars to be included.  These details may be difficult to ascertain after the fact.  To assist in the completion of the required notice it is advisable to take photographs that enable the person to precisely identify the nature and location of the hazard.  In addition, it is important to take particulars of the date and time of the incident.

If you need assistance in providing notification of a hazard or defect, bringing or lodging a claim for compensation, contact your local Fortitude Legal expert.

The Treasury and Finance Legislation Amendment Bill 2018 passed the upper house of Victorian Parliament on 20 September 2018. Yesterday this Bill received Royal Assent becoming law today.

Although the Act has been dubbed Rory’s Law as our client, Rory Wilson, is the centerpiece of it, there are also further beneficial amendments for those who suffer injury in transport accidents as well as for their family members. The full title of the Act really does not do justice to the significance of it!  Here is a summary:

Cyclists:

The anomaly in the legislation has been rectified to ensure that cyclists will now be covered where they strike a stationary vehicle, improved from the previous position where they were only covered where they struck the door of a stationary vehicle, or if they were riding to or from work.

Immediate Family Members:

The definition of “member of the immediate family” will be extended to include Grandparents, allowing them to access financial assistance for family counselling, travel and accommodation expenses to be used where family members are severely or fatally injured in a transport accident. The monetary cap for immediate family members’ travel and accommodation expenses to visit a family member in hospital is set to be increased from $10,780 to $20,000. This extension and monetary increase will be mirrored in WorkCover law.

A further benefit of income assistance will be available to parents who need to take time away from work to visit an injured dependent child who is hospitalised after a transport accident (up to $10,000).

Dependency Benefits to Include Apprentices:

Previously a “dependent child” of a surviving partner of someone who was fatally injured was defined as one who is aged up to 16 or up to age 25 if they are a full-time student. This will now be extended to include full-time apprentices.

Removal of Mandatory 5-year Reviews of Loss of Earning Capacity Payments:

Where an injured person’s level of whole person impairment has been determined at 50% or more, they are entitled to receive ongoing Loss of Earning Capacity payments beyond the usual 3-year mark after an accident. The TAC would however mandatorily review this ongoing entitlement in 5 yearly cycles, putting the person’s entitlement at risk. This has been removed.

Administrator Fees:

Where a person lacks capacity to manage their own financial and legal affairs (a person “under a disability”), it is usual for a VCAT or Court-appointed professional Administrator to be involved. That Administrator is entitled to charge fees for administering the person’s estate. The TAC will now be required to fund these costs.

 

Tom Burgoyne of our Geelong office said “Rory has been a brave and determined client and it has been a privilege to act for him.  His courage in pursuing his rights has triggered great change and it has been most satisfying for me to have played a small role in a collaborative effort by the TAC, the Government and various stakeholders to see the rights of injured Victorians improved.”

We urge anyone who may be impacted by these amendments to seek legal advice without delay.

 

With an inspiring collaborative effort between the Victorian Government, the Transport Accident Commission (TAC) and various stakeholder groups, legislation was last night passed, introducing improved rights for cyclists in Victoria.

Our deserving client, local Drysdale resident Rory Wilson, has made legal history with his case the catalyst for various changes to the Transport Accident Act 1986.

Suffering severe injuries including paraplegia in a cycling accident on 9 July 2014 after colliding with a parked truck in Portarlington, the TAC denied Rory’s claim for compensation due to the then wording of the legislation in relation to cyclists. Rory and his legal team, headed by our very own Tom Burgoyne (pictured here with Rory yesterday), ran test case litigation in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria.  The case served to highlight an anomaly in the law outlined in Tom’s article in the Law Institute Journal “Cyclists Beware” https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/Jan-Feb-2018/Cyclists-beware and prompted inspiring lobbying efforts on behalf of Rory and cyclists in general.

The Treasury and Finance Legislation Amendment Act 2018 has as its centrepiece, amendments which ensure that a collision between a cyclist and a stationary vehicle will be covered by the TAC and not just in situations where a cyclist was riding to or from their place of employment.  This has been dubbed “Rory’s Law”.  Importantly, the change is retrospective to Rory’s date of accident on 9 July 2014 so he will now be covered for TAC compensation benefits including medical care. Other cyclists injured in similar situations on and from that date will also be covered.

Rory says: “I am extremely grateful and humbled with the change in the TAC legislation. I have been fortunate enough to have had a lot of local people in my corner supporting me all along. Amazingly, after fighting for 4 years this has happened in a way I never imagined possible”.

Tom Burgoyne states that “Rory and his wife Pauline have shown great resilience over the last 4 years. Rory’s law will now mean Rory, and other cyclists similarly injured, will get compensation relief to ease their burden.   Credit must be paid to the TAC for its handling of Rory’s litigation in a respectful manner as well as then not turning a blind eye to the anomaly it revealed, as well as to the Andrews Labor Government. There has been a real appetite shown to make change for the better. We are very proud this impetus has come from Geelong and the local community has really outdone itself with the support shown for Rory”. 

The team at Fortitude Legal congratulate you Rory for your bravery and determination in this fight.  It has been an honour to be a part of your journey.

This month marks Tradies National Health Month 2018, an initiative of the Australian Physiotherapy Association, seeking to raise awareness of the health and injury risks that those working in trade occupations face.  According to Safe Work Australia, tradies are over represented when it comes to suffering a serious injury at work.  Tradies make up 30% of the workforce yet 58% of serious claims for worker’s compensation come from tradies which is a worrying statistic. The good news is that if we all work together and take responsibility we can help reduce this statistic.

For a tradie, their tools of trade are their pride and joy, and many will go to great lengths to ensure they are well maintained and in good shape.  But what about a tradie’s health, body and well-being?  Do tradies spend as much time on themselves, ensuring that they are well maintained and in good shape?

As a personal injury law firm specialising in assisting our regional tradies access the treatment they need and the compensation they deserve after sustaining an injury at work, we see all too often that many injuries could have been prevented or the severity of the injury lessened had employers and tradies put health and safety at the forefront of their mind.  The Australian Physiotherapy Association suggests that simple things such as warming up and stretching before starting work and being taught the correct lifting technique can help reduce the incidence of musculo-skeletal and soft tissue injuries.  Employers should ensure that proper risks assessments are undertaken of the duties that tradies are being asked to perform and that injury prevention and management techniques are incorporated into a tradies daily work routine.

If a tradie isn’t feeling 100% then they should be encouraged by their employer and family to contact a health professional and get on top of the injury or condition, instead of just soldering on and putting up with it.  It’s possible that early intervention may mean a quicker recovery and less tools down in the long run.

If employers and tradies take a collaborative approach to health and safety, then hopefully we will start to see the rate of serious injury claims reduce.

Whilst it has been pleasing to see government expenditure leading to an improvement in road infrastructure in our regional communities, it is apparent that there is more to be done.

The statistics demonstrate that you are far more likely to die in a transport accident in regional Victoria than in Melbourne.  In 2017 there were 157 deaths on roads in regional Victoria, compared to 102 in Melbourne.  This statistic is made even more startling when you consider that Melbourne holds approximately three quarters of Victoria’s population.

Whilst one death on our roads is one too many, we need to ensure that there is a continued focus on our roads to reduce the impact of road toll on our regional communities.

We are thrilled to announce that our very own Tom Burgoyne has been shortlisted as a finalist in the category of Regional/Suburban Lawyer of the Year in the Australian legal industry’s most prestigious awards.

The Australian Law Awards recognise the outstanding contribution of Australia’s top lawyers and legal firms.

Having taken home the honours as Regional Lawyer of The Year 2018 at the recent Law Institute of Victoria Awards, it is no surprise to our team that Tom has again been recognised in this way.

At Fortitude Legal we pride ourselves on delivering exceptional legal services to regional Victorians and Tom lives and breathes that philosophy.

Well done Tom! We wish you all the best for the big announcement on 31 August 2018.

We are thrilled to announce that Tom Burgoyne was on Friday night awarded the honour of being named “Regional Lawyer of the Year 2018”, at the Law Institute of Victoria’s 14th Victorian Legal Awards.

The Victorian Legal Awards is the most prestigious legal awards program in Victoria celebrating the “best of the best” and publicly recognising those who demonstrate excellence in legal practice.

Tom, who opens our GEELONG office in June, fought off stiff competition including that of his colleagues, Cameron Cowan, who heads up our Ballarat team, and Fleur Jackson, who will soon open the doors to the Bendigo office of Fortitude Legal.

Tom has handled some of his region’s most significant cases. In doing so, he has highlighted the need for legislative change where he has seen inequity, deficiency or anomaly in the law. Tom’s article “Cyclist Beware” was published in the January/February edition of the Law Institute Journal. Tom sought to put a focus on a “glaring gap in compensation coverage for cyclists…which could be remedied by legislative change”.

In his acceptance speech Tom stated: “I see this Award as reflective of the fact that more broadly as a group there is excellent legal work happening in the regions. We have a lot of pride in being regional practitioners looking after people in our communities”.

We can’t wait to welcome Tom to our team next month!

Congratulations to Cameron Cowan, Tom Burgoyne and Fleur Jackson for being acknowledged as Finalists in the 14th Victorian Legal Awards.

The Victorian Legal Awards is the most prestigious legal awards program in Victoria celebrating the “best of the best” and publicly recognising those who demonstrate excellence in legal practice.

At Fortitude Legal we are thrilled that our very own Cam has been acknowledged in this way and that we will soon be welcoming into our team the also amazing Fleur and Tom.

Fortitude Legal – bringing the best to regional Victoria!