Category: News

Yesterday’s horrific transport accident in Armadale which left a woman in a critical condition at The Alfred Hospital after being struck by the driver of a vehicle allegedly on Autopilot, is a stark reminder of every driver’s need to understand the capabilities of the technology they are using and their non-delegable duty to be responsible for the safety of others whilst they are in charge of a motor vehicle.

With surging petrol prices and an increasing take-up in vehicles with automation systems, it is imperative that the technology is not misunderstood for more than what it is, and that drivers are educated in the use and limitations of their vehicle.

Levels of Autonomous vehicles

The Society of Automotive Engineers (SAE) developed an industry standard scale dividing autonomous vehicles into six levels with Level 0 having no autonomous features and Level 5 vehicles being fully autonomous ie:  not requiring a driver.  In 2021 the SAE published an update to its definitions to clarify that Levels 0-2 are “driver support features” requiring the driver to still be heavily involved with the vehicle’s operation.

There are a number of manufacturers currently incorporating automation systems into their vehicles including Tesla, Mercedes, GM and Volvo, but these are what are known as Level 2, which means that whilst the car can control some functions such as steering and speed on a marked highway, the driver still has to be in control of the vehicle.

Tesla Autopilot function

The vehicle in question in yesterday’s accident was reported to be a Tesla Model 3.  Whilst Tesla asserts that the Tesla Autopilot function enables the car to steer, accelerate and brake automatically within its lane, Tesla’s own site points out that the “Autopilot features require active driver supervision and do not make the vehicle autonomous”.

Your responsibility

Whilst we cannot comment on the specifics of yesterday’s accident, drivers remain the sole person responsible for the safe driving of the vehicle under their control regardless of the make, model or the technology it utilises.

“Whilst yesterday’s accident is reportedly the first case involving a Tesla for Victoria’s major collision unit, in my opinion, it would be a tenuous defence for any driver to rely on an argument that their vehicle manufacturer was in some way responsible for an accident in circumstances where the use of the technology is outside the guidelines indicated by the manufacturer, and where the driver has failed to uphold his or her responsibility in the safe driving of their vehicle.

We watch with great interest as to the precise type of data from the vehicle’s operating system the Major Collision Unit might able to obtain, as we expect this will become a significant area of enquiry in matters concerning automated vehicles involved in serious collisions for both criminal investigations but also the cases we deal with, being civil claims for personal injury damages involving the TAC” said Ms Blond, Managing Director of Fortitude Legal.

Your rights if injured

As with all transport accidents, drivers, regardless of the technology of their cars, are insured for injury to others through the Transport Accident Commission.  The Transport Accident Scheme provides for compensation to those injured including:


  • Loss of earnings;
  • Medical and like expenses; and
  • Lump Sums of compensation which can be in the hundreds of thousands of dollars for those injured in negligent circumstances.


Fortitude Legal is an Award winning law firm specialising in obtaining compensation for those injured in transport accidents.


Contact us for a free, no obligation chat on 1300 020 618


The Ballarat Trial

With Ballarat being the first regional location to commence a 12-month trial of the shared electric or “e-scooter” in December 2021, it took as little as 3 days for issues to arise.  According to The Ballarat Courier, problems are emerging placing pedestrians and road users at risk.

Following a rider crashing through a shop window while riding and e-scooter, The Ballarat Courier, on 22 December 2021, reported that Ballarat Health services are “collecting data” during the trial period.

The trial works by allowing riders to book and use the e-scooters through the “Neuron Mobility App”.  Payment is dictated by which option you select.  A Driver’s Licence is not required.

The trial proposes to restrict the e-scooters to bicycle lanes, bicycle paths, separated and shared paths and roads with a maximum speed of 50kph (the e-scooters however are limited to travel at 20kph).  Riders breaching certain rules can face fines.

Use of the e-scooters requires you to agree to “Terms of Service” and “Riding Rules” and failure to do so will likely cause the attached insurance to become invalid, but more on that below.

Issues Arising

Various reports have already emerged of people suffering injury as a result of their foray into riding e-scooters.  The Ballarat Courier recently reported that in other countries there have tragically been deaths.

For our team at Fortitude Legal, as personal injury lawyers, we see injuries ranging from minor to catastrophic every day.  We see injuries occurring as a result of accidents involving cars, trucks, trains, trams and buses.  When you are injured in a “transport accident” as defined by the Transport Accident Act however, you may be entitled to compensation including loss of earnings, medical expenses and in some instances, lump sum compensation which can be significant.  This insurance is paid from motorists’ registration.

There has been much debate in recent years regarding the coverage for cyclists under the transport accident scheme and whilst coverage for cyclists is still limited, our Principal Lawyer, Tom Burgoyne, was instrumental in having the law changed to expand the protection for cyclists injured on the roads, colloquially known as “Rory’s Law”.

E-scooters are not included in the definition of “transport accident”.  What this means is that if a person sustains injury as either the rider of the e-scooter or a third party, they are not covered under the transport accident scheme (unless the accident also involves a vehicle that is covered by the Transport Accident Act).


So, if you are injured as a result of the use of an e-scooter, whether as a rider or otherwise, where does that leave you?

Whilst e-scooters have attached, an insurance policy for personal accidents and personal liability (i.e.:  injury to others), we have had a look behind the policy’s terms and hold concerns about the value of the insurance and exposure to people injured as a result of the use of an e-scooter.  Of course, only time will tell.

The company behind the e-scooters website states that their insurance includes “both personal accident and third-party liability cover to both Neuron riders and the broader community”.

However, as with any insurance policy, there are exclusions to coverage dictated basically by the driver’s use of the e-scooter.  Those exclusions are contained in the “General Exclusions”, “Terms of Service” and “Riding Rules”.  In short, if the rider is in breach of matters included within those sections of the insurance, or any other relevant laws and bylaws applicable in the area in which they are riding, they will likely face an argument by the insurer that there is no coverage.

Suffice to say, the exclusions are broad and include but are not limited to instances where the rider:

  • fails to wear a helmet while riding;
  • is under 16 years of age or 75 years or older;
  • is under the influence of alcohol or other drug while riding;
  • rides with deliberate recklessness;
  • rides with a passenger;
  • rides the e-scooter for commercial use;
  • rides an e-scooter not under their own account;
  • is carrying more than 10kg in total;
  • is not wearing covered footwear;
  • is carrying items that are considered to impede their ability to safely operate the e-scooter;
  • is using headphones, earphones, earbuds, a headset or other listening device while riding; or
  • is riding in adverse weather conditions.

Whilst they are arguably choices made by the rider, the potential lack of insurance not only impacts them personally, but anyone they may injure when riding the e-scooter, for they may not be insured for third-party liability.

Curiously, the terms suggest that a rider “should give consideration to obtaining [their] own insurance”.  In some instances, a person may be covered under their Home & Contents insurance policy if they negligently cause injury to another, but once again, that is not always the case.

The Upside

On the upside, there is at least a policy of insurance attached to these e-scooters and providing no exclusion clause is activated, the Policy provides cover to a person injured including but not limited to:

  • Weekly injury benefits where a person is suffering from temporary total or partial disablement affecting their ability to work;
  • Death and capital benefits for permanent injuries;
  • Benefits for broken bones;
  • Cover for personal legal liability should you injure a third party and they lodge a claim against you for their injury or property damage, including legal costs (subject to conditions);
  • Accommodation and transport expenses;
  • Childcare;
  • Medical expenses;

…and various other expenses.

According to the City of Ballarat website riders are “covered” by Neuron Mobility’s third-party rider liability insurance that “protects and reassure[s] riders as well as the wider community”.  Only time will tell whether Neuron’s insurer seeks to rely on the exclusion clauses when claims are made.

If you or someone you know has sustained injury and/or financial loss connected with an e-scooter where you were not at fault, please call us for a no obligation chat.

At Fortitude Legal – We’re In Your corner!

We are thrilled to have been named Finalists in the Geelong Business Excellence Awards 2020.

Established by the Geelong Chamber of Commerce in 1986, the Awards recognise organisations that have achieved business excellence in the Geelong Region.

This year’s winners will be announced at an online presentation dinner on 15 October 2020.

In a year that has been challenging for many businesses in adapting to new work practices, this will be a night to look forward to celebrating the work that we get to do for our clients everyday.

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


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.

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 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.


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” 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.