Author: Fortitude Legal Admin

Fortitude Legal were again named as Finalists in the Lawyers Weekly Australian Law Awards for the 3rd year running in both the Regional/Suburban Law Firm of the Year Award and the NewLaw Firm of the Year Award.

NewLaw is where law firms adopt a model, process or tool that changes the way we deliver legal services. It works against the traditional notion of a law firm by implementing new processes and technologies that benefit both our clients in the delivery of legal services, and our team in the flexibility it creates.

The Australian Law Awards is regarded as the industry’s most prestigious accolades recognising excellence across the entire legal industry. The awards pinpoint professional development and innovation, showcasing both the individuals and firms which are leading the way in the industry.


The team at Fortitude Legal are thrilled to have been named winners at the Law Institute of Victoria’s 15th Annual Law Awards.

The Awards are the most prestigious legal awards program in the State celebrating the “best of the best” and publicly recognising those who demonstrate excellence in legal practice.

Named “Law Firm of the Year” in the Boutique category it was with much gratitude that our Managing Director, Katalin Blond , accepted the Award on behalf of our team recounting that “it was only a short while ago that a few of us dreamt of creating a law firm where we could be true to our values and purpose and fulfil our commitment to our clients without distraction. Fast forward less than 12 months and those dreams are now our reality”.

thanks to the Law Institute of Victoria for acknowledging our team in this way and to our Award sponsor, Clarence Workplaces

There is little doubt that our emergency service workers go above and beyond when carrying out their duties to assist, care for and protect individuals and the community when something goes wrong. It stands to reason that the psychological stress and pressure our front line workers can experience in the performance of their duties is significant.

It is therefore a very important step forward in tackling the mental health concerns of our emergency service workers that the Victorian Government has announced the introduction of a 12 month pilot program to enable these workers to access mental health treatment before a WorkCover claim has been accepted.

The introduction of this pilot will go some way to ensuring that these workers are supported and their mental health needs identified and treated from an early stage. Under the current Victorian WorkCover system, it can take many weeks before a WorkCover claim is accepted for a worker to access the treatment they need and even months when the claim has been rejected.

As WorkCover lawyers we see first hand how workers suffering from a mental health injury can experience more stress and even a worsening of their condition when they are not able to access the medical treatment they need at an early stage of their illness. Further, the stress and worry that can come from being out of pocket for treatment costs is likely to be eliminated for many workers with the introduction of this pilot program and may encourage emergency service workers to seek treatment early on which can only be a good thing.

Stage 1 of the pilot program will commence on 17 June 2019 where Victoria Police and Ambulance Victoria Staff and volunteers experiencing a mental health injury will have access to reasonable medical expenses for treatment including GP visits, medication, psychological counselling and psychiatrist appointments.  From 1 July 2019 access will also be opened up to CFA and SES staff and volunteers, public sector nurses, child protection workers, corrections and youth justice workers.

The pilot program is likely to extend to current and former emergency service workers and volunteers. Further, where a WorkCover claim is rejected, emergency service workers will still be able to access reasonable medical expenses for a period of 13 weeks from the date the claim is lodged which is a positive initiative. It is hoped that once the 12 month pilot program concludes, access to payment of reasonable medical expenses will be expanded to all workers injured in Victoria experiencing a mental health injury.

There is still much more to be done in this space to ensure that our emergency service workers are protected, supported and cared for when they experience a mental health injury, but the pilot program is a move in the right direction.

Fleur Jackson

Director and Principal Lawyer


Tom Burgoyne, Director and Principal Lawyer at our Geelong office has again been recognised for his outstanding service to the legal community, being named as Finalist in the Law Institute of Victoria 15th Annual Law Awards.

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

Tom has been shortlisted for his feature article ‘Cyclist Beware’ published in the Law Institute Journal.  His article journaled the legal fight of Drysdale man, Rory Wilson, to highlight an anomaly in the law and seek justice following a devastating cycling accident in 2014.  Rory’s courage and Tom’s unwavering commitment were instrumental in having the law changed to benefit all cyclists injured in these circumstances.

This shortlisting has rounded off an exceptional 12 months for Tom, being named Winner in the category ‘Regional Lawyer of the Year’ in the 2018 Awards.

Our firm, Fortitude Legal, has also been named as a finalist in the category of Boutique Law Firm of the Year.   With a focus on regional Victoria we have adopted innovative initiatives to overcome the geographical challenges thrown up by regional practice, not limited to distance and isolation.

“Bringing to life our vision to provide exceptional legal services to Regional Victoria, I am both humbled and thrilled to have both myself and our entire team recognised in this way” said Mr Burgoyne.

Winners of the Awards will be announced at a gala dinner on 17 May 2019.


What is most important to the team at Fortitude Legal is to have clients who are happy with the conduct of their claim.  Clients who feel heard and respected and have trust in us to deliver the best results for them.  At Fortitude Legal we also aim to create a work environment that is both stimulating and fulfilling such that each member of our team loves to come to work each day and continue to fight the good fight.

We can’t deny however, that it’s pretty cool to be acknowledged by our peers for the work that we’re doing.  Fortitude Legal has recently been announced as a Finalist in the Law Institute of Victoria’s 15th Victorian Legal Awards in the category of Boutique Law Firm of the Year.  The Awards are dedicated to acknowledging the outstanding achievements of Victorian legal professionals.

Whilst every lawyer in our team has, over the years, either been a winner or finalist in the individual awards, there’s something really special about our entire team being acknowledged, as the work that we do every day is truly a team effort.  From opening mail and answering phones to the fabulous work done by our amazing and skilled support team, it is the care taken in each step of the process that allows us to deliver on our promises to our clients.

Thank you to the LIV for this acknowledgement and congratulations to the other firms that are finalists in this category.  We’re thrilled to be among you.

Why we must get it right the first time!

At Fortitude Legal, we understand that the time taken to prepare, pursue and present a Common Law claim can be frustrating.  We must ensure we have tracked down every important piece of evidence, every important witness, had all pertinent issues addressed and prepared our client’s case to the highest of standards.  We must also wait until our client’s injuries have stabilised, and the full extent of their loss is known, as far as is practicable.

The need for such thorough preparation is not only to ensure that we get the best result possible for each and every client, but also lies in the “ONCE AND FOR ALL” rule.  A Plaintiff not only carries the burden of proving their claim (‘the burden of proof’) but they only have one chance to do so.

As far back as the 1700’s it was held in England that an injured Plaintiff will have only one action at common law for their damages. So, a Plaintiff who had suffered injury caused by the negligence of another party who brought their claim and received damages for their loss, could not then seek to bring a further claim for damages arising out of the same negligent act or omission simply because at a later point in time their condition deteriorated or for example, came to surgery for those same injuries and had therefore endured greater loss and suffering.

This rule was transported to, and has always applied in Australia.

This rule in part explains why common law claims for damages can take at times years to prepare and pursue. Indeed, as lawyers representing injured people, our minds are never without this rule in our contemplation. That is not to say that some common law claims cannot be brought expeditiously if the evidence permits (more on this below), however maximising our client’s rights by ensuring that everything is in place prior to negotiating a settlement, is paramount.

Lump Sum Damages

It follows on from the operation of this “ONCE AND FOR ALL” rule that damages at common law are awarded as a lump sum.  Some criticism has been levelled at this method of providing for damages including the following:

  • There is an inherent difficulty, and in many respects an impossibility, in assessing future loss beyond the date of a settlement conference, a mediation or a trial; and
  • The lump sum is received now (and with certain discount factors applied to the lump sum to reflect the fact that the money is arguably worth more in the hand now, and various other factors) but the losses are not necessarily faced until a future point and the damages may be dissipated before then.

However, the need for finality and certainty for both sides (the injured Plaintiff and the negligent Defendant and its insurer) has been seen as a very powerful factor for retaining the lump sum nature of damages payments.

Telling YOUR Story

So, how do we as personal injuries lawyers assist our clients in establishing their future loss? Essentially, we tell YOUR story. This is done through a number of ways and is based on our gathering of, preparation of and presentation of the relevant evidence in our client’s case, including:

  • Taking very detailed and ongoing instructions from our client as to work history pre-injury, attempts to return to work post-injury, attempts to retrain, career aspirations/intentions and treatment plans;
  • Taking very detailed and ongoing instructions from our client as to the stability of their injuries (that is, have they completed the course of treatment recommended for their particular injuries and circumstances so we can assess the permanency of their present state?);
  • Obtaining all financial and other evidence to prove allegations in respect of future loss (although the past is not necessarily an indicator of what a person would have gone on to do in the future had the injury not occurred, it is a very relevant and powerful foundation);
  • Seeking detailed comments from treating medical teams by way of reports detailing future treatment needs, the prognosis and the likelihood of certain needs eventuating;
  • Seeking detailed comments from appropriately qualified independent expert witnesses (known as medico-legal doctors) by way of reports detailing future treatment needs, the prognosis and the likelihood of certain needs eventuating;
  • Always revisiting the totality of the evidence to ensure ‘the time is right’ for our client’s case to be formally presented and negotiations with the other side entered into.

On this last point, the lawyer acting in your best interests will not be afraid to regularly and diligently review the evidence in your case to see if you should be advised that your case should be brought now or deferred until a later point (within the parameters of limitation dates – time limits).

Our Duty To YOU

At Fortitude Legal, while we recognise the need to achieve a timely outcome (noting the ongoing pressures – financial and otherwise – clients suffer the longer a case takes), we aim to never compromise what is in our client’s best interests. Our first duty as lawyers is to the Court and the proper administration of justice and to our clients. There is a saying that justice delayed is justice denied. This is very true, however if a case is rushed, under-prepared and not ready to present, it is unlikely a Plaintiff will receive the best outcome possible.

It is important in managing a case that our clients understand why we do what we do and when it has to be done.  At Fortitude Legal, we pride ourselves on clear and constant communication with each and every client and our door is always open to answer any question no matter how big or small.

At Fortitude Legal – We’re In YOUR Corner!


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:


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.