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Forced Adoption Scheme - Applications Now Open

By Fortitude Legal Admin

Historical Forced Adoption Redress Scheme

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.

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.

The Scheme opened for Applications on 1 February 2024.

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

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.

Common Law claims can attract greater compensation than redress schemes.

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

We provide a free no obligation initial appointment to those directly impacted by Historical Forced Adoption Practices.

 

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.

BURNS INJURIES - KNOW YOUR RIGHTS!

By Fortitude Legal Admin

If you have suffered BURNS INJURIES caused by someone else’s negligence, you may have a substantial public liability claim for compensation.

At Fortitude Legal, we have had success in substantial public liability claims for damages (pain and suffering, economic loss and medical expenses) for people who have suffered horrific burns injuries (which are often life-threatening) due to another person pouring an accelerant (such as methylated spirits, fuel/petrol, sprays or alcohol) onto a fire they were sitting close to.

This may be around a backyard fire or fire pit at a house party, or while camping.

There is often a policy of insurance (home contents) which can have public liability cover attaching to a person involved in such an incident.

Burns injuries often result in horrific and permanent scarring and disfigurement, as well as psychological harm.

Call our team on 1300 020 618 and arrange a free no obligation chat.

INJURIES OF THE SHOULDER – SERIOUS INJURIES & SERIOUS COMPENSATION

By Fortitude Legal Admin

INJURIES OF THE SHOULDER – SERIOUS INJURIES & SERIOUS COMPENSATION

The shoulder joint is considered to be one which has the widest range of movement in the human body. This being the case, injuries to any part of the structures making up the shoulder can be, and are, debilitating. Here, we consider the anatomy of the shoulder, common scenarios in which a person can suffer injury to this body part which result in compensation payments, the types of damage suffered and the types of compensation available.

Anatomy:

The shoulder is considered a ‘ball and socket’ joint which comprises of bony structures as follows:

  • The acromioclavicular joint (where the shoulder blade and collar bone meet);
  • The glenohumeral joint (where the humeral head, or ‘ball’, and glenoid, or ‘socket’, meet).

Holding this bony structure together is the rotator cuff, which operates to keep the ball nice and secure in the socket. This structure connects the humerus and scapula with tendons of four muscles:

  • The supraspinatus;
  • The infraspinatus;
  • Teres Minor;
  • Subscapularis.

The socket has a soft tissue called a labrum, and the joint capsule has a fluid sack to lubricate the joint.

How is the Shoulder Injured?

As with all body parts, there are many and varied ways that people suffer injuries to their shoulders, but some of the common mechanisms we see as expert personal injury lawyers include:

  • Direct blows (impact injuries) from moving objects or falling;
  • Falling onto an outstretched hand/arm resulting in a violent twisting;
  • Wrenching;
  • Lifting;
  • Overhead activities;
  • Overuse;
  • Overextension.

It is common for people to hear terrible noises such as “cracks”, “pops” and “snaps” or “tears” in frank (traumatic incidents), but sometimes the pain comes on with time and can be a burning or ‘stabbing’ pain in nature that keeps you awake at night. People find they are unable to roll onto or lie on that shoulder in bed. Injured shoulders sometimes also “grind” with movement.

In the context of incidents which may sound in compensation for personal injury, such mechanisms are often sustained in the following:

  • TAC claims:
    • Occupants of vehicles (drivers or passengers), cars, trucks, trains, trams in motor vehicle accidents: arms may be outstretched and braced against impact by holding the steering wheel, there may be side-on blows, or the arms may be raised to protect the face;
    • Pedestrians struck by motor vehicles: pedestrians can go under vehicles, be thrown up onto and over vehicles, and can be knocked to the roadway or into other objects;
    • Cyclists struck by, or taking evasive action to avoid, motor vehicles: cyclists have been known to land heavily onto their shoulders or strike their shoulders up on the bonnet of vehicles;
    • Motorcyclists struck by, or taking evasive action to avoid, motor vehicles: motorists failing to give-way or large vehicles, including trucks, where a driver has failed to perform a head-check.

 

  • Public Liability claims:
    • Slipping and falling onto an outstretched arm (from wet floors or spillages);
    • Tripping and falling onto an outstretched arm (from raised sections of pavement or other trip hazards);
    • Falling down stairs or from otherwise elevated sections (usually resulting from poor step demarcation and poor lighting);
    • Physical altercations (assaults);

 

  • WorkCover claims:
    • Heavy lifting of objects;
    • Awkward and unsupported lifting (for example, carrying an item or patient with co-workers who suddenly let go leaving you holding on);
    • Repetitive and overuse actions (pushing, pulling and lifting);
    • Working above the head;
    • Working with arms outstretched from the body;
    • Slips, trips and falls.

Common Injuries:

  • Fractures: fractures involving the ‘ball’ and/or ‘socket’ in what is referred to as the articular surface can be devastating injuries requiring surgery, often leading to risks of arthritis in that joint into the future;
  • Tendon tears: most tears occur in the supraspinatus tendon, but all other parts of the rotator cuff can be involved. Tears can be full thickness (as the name suggests, complete tearing and detachment from the bone) or partial thickness (the tendon remains attached to the bone, but can be thinned due to partial tearing);
  • Dislocations and Instability: the tendons of the rotator cuff can become loose from being overstretched and may mean the shoulder is prone to further dislocations;
  • Bursitis: the bursa (fluid filled sacs) that cushion the joint become inflamed and filled with excess fluid, irritated by movement (which in turn can impact arm mobility);
  • Adhesive Capsulitis/Frozen Shoulder: this is a difficult condition which can result in pain and stiffness of the shoulder joint, often resulting from the development of inflammation and scar tissue following trauma or overuse;
  • Nerve damage: the brachial plexus is a network of nerves sending signals from the spinal cord to the shoulder and arm; severe brachial plexus injuries (compressed or torn) can result in arm paralysis.

Radiology (Scans):

  • Shoulder X-Rays: will be used to identify fractures, subluxation, arthritis;
  • Shoulder Ultrasounds: will be used to identify large rotator cuff tears and other pathology such as bursitis;
  • Shoulder MRIs: will be used to identify rotator cuff tears and most other pathology;
  • Shoulder CT Scans: will be used to identify damage in the joint surfaces.

 

Common Invasive Treatments:

A person will be referred to an Orthopaedic Surgeon with a special interest in the shoulder and some of the procedures they may undergo can (depending on the nature of the injury and the person’s circumstances) include:

  • Total shoulder replacements to replace aspects of the damaged joint;
  • Partial shoulder replacements to replace aspects of the damaged joint;
  • Insertion of plates and screws to reduce and secure fractures (open reduction and internal fixation)
  • Rotator cuff repairs to repair tears to one or more of the tendons (some procedures are performed as traditional ‘open’ surgeries, and some are performed as ‘arthroscopic’ surgeries through small portals made by the surgeon to insert cameras and instruments). Bone spurs can be removed from the underside of the acromion (acromioplasty) and screws (suture anchors) and suture thread are used to repair the tear(s);
  • Shoulder reconstructions to reduce instability;
  • Hydrodilatation (an injection using cortisone and saline);
  • Cortisone injections;
  • Manipulation under anaesthetic.

 

Personal Injury Compensation:

As we have noted, given the importance and wide range of movement of the shoulder joint, we often find that shoulder injuries will satisfy the “serious injury” thresholds in TAC claims under the Transport Accident Act 1986 (Vic) and WorkCover claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), resulting in Serious Injury Certificates being granted, as well as satisfying the “significant injury” threshold for public liability claims under the Wrongs Act 1958 (Vic).

Therefore, if there was negligence as a cause of the person’s injury, loss and damage, it is possible to recover damages for pain and suffering (general damages), loss of earnings and loss of earning capacity and medical expenses and care. Damages can be significant for shoulder injuries.

We also find that shoulder injuries can rate well for impairment benefit lump sum claims under the TAC and WorkCover no-fault schemes.

If you have suffered a shoulder injury the subject of a TAC claim, WorkCover claim or Public Liability claim in Victoria, and particularly if you have been referred by your General Practitioner or Physiotherapist to an Orthopaedic Shoulder Surgeon (there are a range of Geelong Shoulder Surgeons, Ballarat Shoulder Surgeons, Western Suburbs Shoulder Surgeons, Melbourne Shoulder Surgeons who will treat people with compensation claims), it is in your interests to seek legal advice.

Contact us on 1300020618 for a free, no obligation chat.

At Fortitude Legal, We’re In Your Corner!

 

WHY MUST I PROVE MY CASE? THE BURDEN OF PROOF

By Fortitude Legal Admin

BURDEN AND STANDARD OF PROOF IN INJURY CLAIMS – DO I STILL HAVE A CIVIL CLAIM IF THE POLICE OR WORKSAFE DO NOT TAKE FORMAL ACTION IN AN ACCIDENT?

 

As personal injury lawyers providing advice to clients, we find that people are often surprised to hear that not only are they burdened with carrying the consequences of their injuries, but at law, they also carry the burden of proof in their claim for compensation for those injuries.

What does burden of proof mean?

What is meant by “the burden of proof” is essentially who has the task of proving a certain fact (the standard of proof against which a claim and evidence is measured before that fact is considered proven is dealt with next). The burden of proof in different issues and aspects in personal injuries claims can depend on the law surrounding a particular type of claim.

As a broad proposition, it is the case that the burden of proving that a particular injury, loss and damage has been suffered, and that the particular injury, loss and damage was caused by a Defendant (the person or entity against whom a claim is proposed to be brought against) will rest with the injured Plaintiff.

Therefore, if you are unfortunate enough to suffer personal injuries in an incident which may give rise to compensation, it is vitally important that you take steps to protect yourself early by preserving evidence. Our role will be to handle this for you and/or to advise you on how to do so.

To prove that a particular incident occurred, necessary evidence to preserve and obtain may include the following:

  • Photographs;
  • CCTV footage;
  • Witness details and accounts;
  • First responder notes and reports (such as from Police, paramedics, SES, CFA, and 000 call takers);
  • Physical items (vehicle and bicycle wrecks, pieces of vehicles or machinery such as debris, items of clothing or footwear, blood spatters, damaged safety gear and the like);
  • Contemporaneous records entered into medical notes (such as in hospitals and medical clinics).

As to the nature and extent of particular injuries and losses, we will obtain the following:

  • Medical notes from hospitals and your treating medical practitioners, including radiological scans;
  • Medical reports from your treating medical practitioners;
  • Medico-legal reports from independent medical examiners;
  • Financial materials such as income tax returns and payslips;
  • Statements from co-workers and family members.

Great care and attention needs to be given in the wording of requests for medical opinions.

There are some instances where the burden of proof may shift to a Defendant. For example, where a Defendant alleges that a Plaintiff was contributorily negligence as to the occurrence, nature and/or extent of their own damage, the Defendant will have the burden of proving such an allegation. Also, it is common for Defendants to allege that a Plaintiff has failed to mitigate their own loss (that is, take steps to rehabilitate, retrain etc) – they must produce evidence to satisfactorily establish that.

Do not think simply because you are the one who has had injury inflicted upon you due to no fault of your own that you can sit back and compensation will materialise – you must prove your entitlement.

To what standard must I prove my case?

In civil cases based on negligence dealing with personal injuries and compensation/damages, all issues must be established “on the balance of probabilities”. This does not require absolute scientific certainty, but rather requires proving something on a more probable than not basis.

We often get questions from clients who are concerned as to what it means for their case if officials such as Police, WorkSafe or other statutory bodies elect not to press charges and prosecute a person or entity for what has occurred. Whilst it can obviously be helpful for a subsequent civil claim if this occurs and a conviction is secured against a Defendant, this generally will not be fatal to a Plaintiff’s proposed claim. In fact, it is commonplace.

That is because with, for example, Police looking into investigating a certain type of wrong doing in a motor vehicle accident, they are required to consider whether they can make out a charge to the criminal standard, which is “beyond reasonable doubt”, measured against the specific elements of a defined crime. This is a higher and more difficult standard than the civil standard. Also, although the consequences of an accident are highly relevant for the Police, the focus is often more so on the actions (including intent or otherwise) of someone who caused the accident in terms of assessing culpability. Things are more nuanced from a civil negligence perspective, in that a simple failure by a Defendant (such as a positive action or inaction) can lead to catastrophic consequences for an injured Plaintiff; it is common in road accidents to see one driver only issued with a fine for failing to give-way while the outcome of the failure to give-way may be fatal injuries or severe and permanent disability to the injured Plaintiff who was on the wrong end of the Defendant’s action/inaction. The same can apply with workplace accidents or incidents in public or private places where not even a fine can be issued. Provided you can nonetheless discharge the burden of proof to the requisite standard of proof, very substantial damages (pain and suffering, economic loss and in some cases, medical expenses and care) will be achieved regardless of the position the authorities have taken.

Although the standard of proof in a civil claim for damages based on negligence is a lesser standard to which a prosecution must make out a charge in a criminal matter, this does not mean a lawyer acting for an injured Plaintiff can be lazy or take less care in going about proving a client’s case: we at Fortitude Legal do the opposite (noting the burden you carry) and we will always undertake a forensic analysis and approach to our clients’ claims to give you the best prospects of success.

I didn’t have my seat belt on.  Do I still have rights?

By Fortitude Legal Admin

I didn’t have my seat belt on.  Do I still have rights?

In writing this article, we want to make it clear that as personal injury lawyers we see the devastating impact of transport accidents every day.  Wearing a seatbelt is not only law but reduces the risk of injury or death in a transport accident.

In our work however, sometimes we meet people who have avoided seeking legal advice in this scenario, thinking they may be excluded from entitlements under the Transport Accident Scheme altogether.  This article is intended to provide information for people in those circumstances and to explain how their entitlements are impacted.  It is important that access to entitlements and medical treatment is understood, as the Victorian Transport Accident Scheme is there to assist those injured in transport accidents.

Entitlements

When a person is injured in a transport accident and not wearing a seatbelt, they are still entitled to compensation in accordance with the Transport Accident Act 1986 (Vic) including the following:

No Fault Entitlements

No Fault entitlements payable by the Transport Accident Commission (TAC) include:

  • Medical and Like Expenses
  • Income Benefits
  • Impairment Benefit

Common Law Rights

 Prior to being able to claim Common Law Damages, the injured person is required to first establish that their injuries meet the definition of serious injury.

In a claim for damages under the Transport Accident Act, Common Law damages are payable for pain and suffering and economic losses.  Medical and like expenses are not typically able to be claimed and are usually preserved following an award of common law damages.

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 demonstrate negligence, the injured person would need to establish that the accident was due to the negligence of another party.  Negligence is established when a party other than the injured person has failed to take reasonable care for the safety of the injured person and that failure is a cause of the injured person’s injury.

Circumstances where negligence is typically established in a transport accident can include the failure of a driver to take reasonable care for the safety of others; the failure of a council or roads authorities to take reasonable care of roads, or road related areas; and the failure of animal owners to keep animals secure and off the roads.

For the purpose of this article we will referred to the negligent party as the Defendant.  Depending on the circumstances of the accident, the Defendant is usually insured by the Transport Accident Commission or in some cases, another insurer.

Where the failure to wear a seat belt becomes relevant is in the defence of a Common Law claim.  There are two possible arguments the Defendant may raise:

  • Voluntary assumption of risk (a complete defence); or
  • Contributory negligence (which may reduce a person’s entitlement to Common Law damages but not defeat it altogether).

 Voluntary Assumption of Risk

 The Common Law has a principle that a person who has voluntarily assumed the risk of the particular injury, will not be entitled to Common Law damages.

History shows however, that this is a particularly difficult defence to establish, and it is more likely that an entitlement to damages will remain.  Put more simply, it is unlikely that the failure to wear a seatbelt will result in a complete defence, but rather, a reduction in damages by reason of contributory negligence.

Contributory Negligence

 Contributory negligence is a live issue in transport accident claims when the injured person is unrestrained.  In order to establish contributory negligence against an injured person, the defendant  carries the onus of proving that:

  1. The injured person was unrestrained; and
  2. The injured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety; and
  3. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

At Fortitude Legal we have been involved in claims where the negligent party has not been able to establish one or all of the above points.

  1. Whether or not you were wearing a seatbelt is disputed.

Where the defendant asserts that the injured party was not wearing a seat belt but that is disputed, evidence could be relied upon including:

  • evidence of another traveler or a first responder that can say that the injured person’s seatbelt was in fact on;
  • photographs of the injured person showing bruising caused by the seatbelt.

 

  1. Whether the insured person’s failure to be restrained amounted to a failure to take reasonable care for their own safety.

Where a vehicle is fitted with a seatbelt and the injured person failed to wear it, it is likely that this element would be proven.

Please note however that there are exceptions.  For instance, circumstances where the vehicle that the passenger is travelling in is not required to be fitted with seatbelts including:

  • Some Buses
  • Trams
  • Classic vehicles that may not be required to be retrofitted

Further, a vehicle user may not be required to wear a seatbelt in circumstances where they have received medical certification that states that because of medical unfitness or physical disability, it is impractical, undesirable or inexpedient that the person wear a seatbelt.

In these circumstances, an argument about failing to take reasonable care for their own safety would be unlikely to succeed.

If a person does not have the ability to make reasonable decisions in the interests of their own safety, they will probably also not be impacted by a reduction for contributory negligence.  An example may be a young child/infant.

  1. That the injured person’s failure to take reasonable care caused their injuries to be worse than what they would have been if they were restrained with a seatbelt.

It is very clear that wearing a seatbelt is generally the best way to avoid serious injury in the event of a collision.   The defendant does however have to prove in case that a failure to do so was causative of more serious injuries.  Whilst it is often the case, there may be an exception where the failure to wear a seatbelt was not causative of greater injury.  Each case turns on its facts.

The law surrounding unrestrained motorists is not straight forward and there are many considerations in the Common Law when determining the impact of being unrestrained on an injured person’s entitlements.

If you have a query in relation to a TAC claim, please contact our expert Transport Accident Team for a no obligation chat on 1300 020 618.

 

 

 

 

Injured Off Road? Whether Dirt Bike, Paddock Bomb or Quad Bike - You May have Rights!

By Fortitude Legal Admin

Injured Off Road? What are My Rights?

In the context of off-road motorcycling or driving, an accident does not necessarily have to occur on a public road in order for you to be eligible to receive compensation.  For example, if you are injured whilst riding or driving a Victorian registered motorcycle or car on private land you may be entitled to receive compensation as a result of your injuries.

It is also important to consider what is public land.  Public land may include privately owned land, including by government, when the land is open to members of the public.  For example, when the land is readily accessible as there have not been adequate attempts made to prevent access to an area (i.e. inadequate fencing/gates and/or inadequate attempts to stop vehicles from being ridden or driven in the area).

In some circumstances you may be entitled to compensation even if the motorcycle or car you were riding or driving is unregistered.  However, the nature of the vehicle will need to be considered, i.e. whether the vehicle is capable of being registered.  Factors that will be considered include, whether the vehicle is used (actual usage) on public land or is intended to be used (having regard for the nature of the vehicle in question) on public land. While past cases are useful, each case will turn on its own facts.

The scheme surrounding transport accidents and your entitlements is complex and there are strict time limits that apply.  It is important that you get appropriate legal advice from the outset to ensure that your rights are protected.

We can help you navigate the scheme, maximise your entitlements and make the decisions that are right for your future.

If you have a query, please do not hesitate to contact our expert Transport Accident Team for a no obligation chat.

I've Hurt my Back at Work - What are my Compensation Entitlements?

By Fortitude Legal Admin

I’ve hurt my back at work – what should I do?

If you have suffered an injury to your back at work, you might be able to make a claim for compensation.

You may have suffered a back injury in the course of your employment due to heavy lifting, a slip and fall, or unsafe work practices generally. Your work may require repetitive movements such as lifting and bending, placing strain on your back by way of gradual process over the course of many years. Ultimately, there is a long list of possible work-related causes and it is important to remember that your injury does not necessarily need to have occurred as a consequence of a single incident.

As a first step, it is important that you report your injury to your employer as soon as possible and ensure a WorkCover claim is formally lodged with your employer within 30 days of you becoming aware of the injury.

Am I entitled to the cost of medical expenses for my back injury?

The simple answer is yes. If your back injury is accepted as being worked related and you require treatment, the WorkCover agent is obligated to fund the cost, so long as the proposed treatment is both reasonable and necessary. Often, it can be necessary for your treating Doctor to justify the treatment to the Workcover agent.

Of course, a back injury, whether niggling or traumatic – can be difficult to shake. You should discuss any proposed treatment options with your general practitioner as soon as possible following your back injury.

Once you have agreed upon a necessary treatment regime, your GP should be asked to write to the WorkCover insurer for funding approval.

Am I entitled to lost wages for my back injury?

Following acceptance of your claim, if you have a reduced capacity to perform your pre injury duties as a consequence of your work related back injury, you are entitled to weekly payments of compensation from WorkCover.

To demonstrate a reduced or total incapacity, you will be required to obtain regular certificates of capacity from a treating practitioner.

For the first 13 weeks, weekly payments are payable at the rate of 95% of your pre injury average weekly earnings (‘PIAWE’). After 13 weeks, you are entitled to 80% of your PIAWE. Unfortunately, overtime and shift allowances are included in your PIAWE for the first 52 weeks only.

Am I entitled to lump sum compensation for my back injury?

 

In some circumstances, where you have failed to fully recover from your back injury, you may be entitled to lump sum compensation.

Once your back injury has substantially stabilised, in the sense it is unlikely to significantly improve or deteriorate, you may be able lodge a claim for permanent impairment benefits. If your permanent impairment satisfies the necessary threshold, you may be entitled to a lump sum. You are not required to prove that your employer was at fault in causing your back injury, to be entitled to an impairment benefit.

Further, if you have suffered a ‘serious injury’, and you are able to prove that your employer or a third party was negligent in causing your injury, you may be entitled to common law damages. Damages may be payable to compensate you for pain and suffering as well as loss of earning capacity.

Subject to a range of circumstances, damages at common law can be significant.

How we can help

 The claims process can be quite complicated.  As soon as you become aware that you have sustained a back injury at work, you should get in contact with our team of  workers compensation lawyers for expert advice. We can guide you through the process on a no win no fee basis.

The earlier that an expert lawyer is engaged, the sooner we are able to understand and build your case. This will help to ensure you get the best possible outcome.

For a no obligation free chat, please call us on 1300 020 618.

 

 

 

Injury involving an e-scooter?

By Fortitude Legal Admin

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).

Insurance?

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!