Tag: #personalinjurylawyers

A Category of Forgotten Worker/Road User


This is an extremely distressing topic for us to raise, but we feel that not having the debate is to sit back and perpetuate a failure of the law and insurance for a category of hard-working, everyday people.

It is a topic that involves the tragedy of suicide, so if this causes distress please take care in reading on and seek help where required – it is not our intention to cause upset.

Our community has become very good at suicide prevention at the outset, with excellent local medical and allied practitioners working over-time to assist struggling people. However, where a situation arises in the course of someone’s employment on our Victorian roads, the law in our view fails workers and creates an abyss for them.

Our clients have been exposed to the very tragic circumstance of pedestrian suicide by truck. There is no doubt the struggling person did not intend to cause harm, and our clients have been ‘blameless’ in an unavoidable situation while driving heavy vehicles. There is devastation which impacts the whole community. A life is lost, families are shattered and a worker effectively loses their life too. So, legally what happens next?

The injured worker/driver will suffer severe nervous shock injury. They will be entitled to receive limited ‘no-fault’ compensation benefits under the WorkCover scheme. More often than not, their psychiatric injury is assessed under an almost unattainable threshold of 30% to qualify for an impairment benefit lump sum. It is difficult to envisage much worse that a person could be exposed to, yet these assessments fail them.

The injured worker/driver will most likely satisfy the “serious injury” threshold in the TAC legislation and will make out the elements of a common law claim for damages – but where do they go? The employer has often done nothing wrong; the TAC are only liable to indemnify a party for negligent acts arising out of the driving or use of a motor vehicle. The pedestrian’s estate will often be insufficient (and our clients do not wish to go down that path in any event), and rarely will a pedestrian be covered under the public liability component of a home and contents insurance policy (noting: (a) there may be none; and (b) there are exclusion clauses in such policies – similar to problems we are seeing with the E-Scooter cases).

The blameless injured worker/driver is then left with ‘hollow’ rights and falls into financial ruin if they are unable to return to work. This is the aftermath the law has failed to deal with.

We are calling for consideration of some form of extension of limited indemnity from the TAC as a nominal Defendant against which the blameless worker could claim some damages in this very strict and limited category of case involving a pedestrian and a driver of a heavy vehicle in the course of their employment when confronted with this known, but under-reported, ‘occupational hazard’. We are not suggesting comprehensive coverage for all incidents involving motorists and pedestrians – that would be an impossible burden for the very well-run TAC scheme. However, the reality is that in this situation there is “double insurance” (both WorkCover and TAC premiums being paid) with no benefit for the worker.

This is one potential solution; it may not be the ultimate solution, but we hope to trigger a debate. To remain silent on this issue is to fail these workers/road users. If you believe in the rights of Victorian workers and road users, please join us and speak up for them – we have to at least try something. Call us crazy, but the public feedback has been enormous.

This is a legally and emotionally complex issue. However, we are of the view that this is precisely what the law needs to deal with – it is no excuse for the law to be missing in action. If the law is not working for our people, it is not working properly in this space.


If you or anyone you know needs help call:
Lifeline on 13 11 14
Griefline on 1300 845 745
Kids Helpline on 1800 551 800
Beyond Blue on 1300 224 636
Headspace on 1800 650 890
Mensline Australia on 1300 789 978
Care Leavers Australasian Network (CLAN) on 1800 008 774
Head to Health at headtohealth.gov.au


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!

What Is Asbestosis?

Asbestosis is scarring of the inside of the lungs.  It occurs from breathing in asbestos dust.

There are different types of asbestos, some more toxic than others but all types of asbestos have been classified as cancer-producing.

When working with asbestos, fibres can be inhaled, the inhaled fibres get trapped in the lungs, eventually causing scarring and stiffening.

In some instances, exposure to asbestos can cause lung cancer or mesothelioma, a rare type of cancer.

The symptoms of asbestosis can occur 10-20 years after exposure and can include:

  • shortness of breath
  • crackling sounds when breathing
  • loss of appetite
  • dry cough
  • weight loss
  • swelling or ‘clubbing’ at the end of the fingers

Why Was Asbestos Used?

Asbestos is resistant to heat, fire and electricity and as such, was a commonly used product in building, construction and insulation, including use in fibro sheeting, drains, roofs and gutters.  Asbestos was also used in car parts including brake pads.  Asbestos was widely used in Australia from around 1940 to 1987.  It is now banned nation-wide.

Who Is At Risk?

  • Asbestos miners
  • Trades people who have worked with asbestos
  • Shipyard, wharf and power station workers
  • Workers at aluminium smelting plants
  • Relatives of asbestos workers who have come into contact with the asbestos eg:  when washing clothes
  • People who have conducted renovations of older homes containing asbestos

What Can I Do If Diagnosed With Asbestosis?

Compensation is able to be claimed in relation to asbestosis regardless of when the exposure to asbestos occurred.  Claims for damages as a result of asbestosis can include pain and suffering and loss of enjoyment of life, past and future medical expenses, past and future loss of income, care expenses including gardening and nursing care, and out of pocket expenses such as travel to appointments.

In the event that a partner or family member dies as a result of the condition, a family member may still be able to claim compensation for the financial consequences of their loved one’s death.

If you, or someone you know, requires assistance with a compensation claim for asbestosis, contact Fortitude Legal to see the difference that we are able to make for your claim.  We will fight for you, explain your claim in clear terms, progress your claim promptly and minimise any inconvenience caused by the claims process.

Call us for a free, no obligation chat.

At Fortitude Legal – WE’RE IN YOUR CORNER


As with anything in life, preparation is key to winning your personal injury claim.  With a well-honed, award winning team like Fortitude Legal, our years of litigation experience have taught us what to expect when it comes to getting you the best financial outcome in your claim and to anticipate and be prepared for the moves of the Defendant’s lawyers.

Whilst most cases are resolved before Court, it is necessary that your lawyer thoroughly prepares your claim as though it were to proceed, in order to have the ammunition to negotiate with the Defendant’s lawyers.  Your lawyers shouldn’t be talking with the Defendant’s lawyers until they are fully appraised of both the strengths and weaknesses in your case.

At Fortitude Legal, our preparation of your case is thorough and methodical.  We leave no stone unturned.

Whilst there are many intricacies in each step along the way, the framework to ensure your claim is in the best shape to maximise your compensation includes:

  1. Ensure your injury is properly reported and Claim lodged (where applicable)
  2. Seek all appropriate medical treatment so the full extent of your injury and its consequences are known
  3. Meet with our lawyers promptly whilst your recollection is clear and comprehensive instructions can be obtained
  4. Let us ease the burden and provide you with the confidence to make the right decisions about your claim at the right time
  5. We then investigate, obtain and preserve all evidence required to give you the best chance of success
  6. We will arrange for your injuries to be assessed by the appropriate specialists and obtain the opinions needed to support your various forms of damages/compensation
  7. In WorkCover and TAC matters we will also provide support along the way for any annoying decisions the insurers may make about your entitlements, whilst still progressing your common law claim
  8. We will then endeavour to negotiate the best possible result for you or, where that’s not possible, proceed to Court upon your instruction and take the battle to the Defendant
  9. Once your claim is finalised, we remain here for you.  We know that settlement of your common law claim does not always mean the end of your dealings when your claim is either a transport accident or WorkCover so we want to be there for you into the future.

Call us for a free no obligation chat.  Don’t muck about with your rights

At Fortitude Legal – WE’RE IN YOUR CORNER!

As a cyclist, you may have entitlements under the transport accident scheme if you were injured as a result of a collision that was directly caused by the driving of a vehicle (including cars, buses, motorcycles, trains and trams).

It is important to note however that you may be covered as a cyclist in a number of additional scenarios including:

NEAR MISS – if the driving of a vehicle directly caused a need for you to take evasive action to avoid a collision and you ultimately suffer injury;
CAR-DOORING – an incident involving a collision between you as a cyclist and an open or opening door of a vehicle;
TRAVELLING TO OR FROM WORK – an incident involving a collision between you as a cyclist and a motor vehicle while you were travelling to or from your place of employment (the vehicle can be a parked or stationary vehicle);
COLLISION WITH A STATIONARY VEHICLE – an accident involving you as a cyclist and a stationary vehicle for accidents on or after 9 July 2014.

Furthermore, following ‘test case’ litigation in which Fortitude Legal’s Tom Burgoyne acted for the injured cyclist, the law with regard to collisions with stationary vehicles has changed for the better for cyclists across Victoria.

On 7 June 2018 a Bill was introduced into Victoria’s Parliament https://www.premier.vic.gov.au/cyclists-and-all-victorians-to-benefit-from-tac-changes/ to amend the transport accident legislation such that a collision between a cyclist and a parked or stationary vehicle will constitute a “transport accident” and not be confined to a situation where a cyclist is riding to or from work. After passing both Houses of Victoria’s Parliament on 20 September 2018, the Bill received Royal Assent on 25 September 2018 such that changes commenced on 26 September 2018.  The amendment has retrospective effect to 9 July 2014 and any cyclists injured in collisions with parked or stationary vehicles from that date will also be covered. This is referred to as “Rory’s Law”.

As a cyclist, you may be interested to read Tom’s article professionally published in the Law Institute Journal which called for a change to the law after Tom ran Rory’s test case https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/Jan-Feb-2018/Cyclists-beware

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..

A. What Are Your Rights?

The Wrongs Act 1958 (‘the Act’) is the primary legislation in Victoria, which governs claims for personal injury where a person has been bitten by a dog (different legislation applies if the dog bite occurred at work and additional rights flow). As a victim of a dog attack, the Domestic Animals Act 1994 will also have application.

A person may be entitled to bring a common law compensation claim, which is also known as a “damages” claim, against a negligent party. If you were injured in a public area, your claim would be referred to as a “public liability” claim.

With a public liability claim, you must prove that a third party’s negligence was the cause of your injury.  This involves various elements including:

  1. Were you owed a duty by the other party?
  2. Did that party breach that duty? and
  3. Did that breach cause the incident to occur and in turn, you to suffer injury.

The Domestic Animals Act 1994 is of assistance here as it provides for a range of offences and liability in respect of dog attacks, thereby creating a statutory duty. (You still need to establish negligence in a  common law claim however).  There are references to a “restricted breed dog” (which are those noted on a prescribed list) and a “dangerous dog”, which is a dog so declared by the Council. If the dog in question was not declared a “dangerous dog” by the Council prior to the attack, the person in apparent control of the dog, whether or not they are the owner of the dog, at the time it attacks or bites a person and causes death or serious injury can be found guilty of an offence.

B. What does The Domestic Animals Act prescribe?

The Domestic Animals Act 1994 and associated Codes of Practice provide various laws and penalties pertaining to dogs and other animals including but not limited to:

– Dogs over 3 months old must be registered with the relevant Council and failure to do so can lead to a fine of up to 20 penalty units;
– Council can refuse to register a dog that is not desexed;
– For dogs found at large, an owner can be fined up to 10 penalty units;
– For dogs that are not defined as a “dangerous dog” or “restricted breed dog” and the dog attacks or bites a person or animal, the person in apparent control of the dog, whether or not the owner, can be liable for a penalty of up to 40 penalty units;
– If a dog rushes or chases any person, the person in apparent control of the dog at the time, whether or not the owner, can be liable for a penalty of up to 4 penalty units;
– Where the dog is defined as a “dangerous dog” or a “restricted breed dog” and it attacks or bites a person or animal, the person in apparent control of the dog at the time of attack or biting, whether or not the owner of the dog, can be liable to a term of imprisonment or a fine of up to 120 penalty units;
– There are some defences that apply.

One penalty unit in Victoria as at 1 July 2021 is $181.74.

The Courts are given quite broad powers in dealing with offences under this legislation, including but not limited to:
– The power to seize, take custody of, dispose of or destroy the dog;
– The power to prohibit ownership;
– The power to order that a person pay compensation for any damage caused by the conduct of the dog.

The Crimes Act 1958 also provides penalties for owners who fail to control a dangerous, menacing or restricted breed dog that kills a person or places a person in danger of death. Such penalties can be up to 10 years imprisonment.

C. So What is Local Council’s Role?

Local Councils are required to have in place a Domestic Animal Management Plan. For example, the City of Greater Geelong Domestic Animal Management Plan 2018-21 provides guidelines on how to promote and encourage responsible pet ownership, and manage issues around dogs and cats.  This Plan sets out work already underway and what the City hoped to improve through to 2021.  The City also has in places various policies including but not limited to Dogs Controls in Public Places Policy 11 December 2018 and how to Report a Dog at Large.

You will find Similar Plans in your region if you are not from the Geelong Region.  We are happy to assist you with this if you need help.

D. Dog Attacks – the Statistics in the City of Greater Geelong

With one of the largest animal populations of any Victorian Municipality, whilst the statistics are outdated, according to City of Greater Geelong Domestic Animal Management Plan 2018-21, there were 214 attacks between August 2016 and August 2017.

Dog attacks can have devastating consequences both from a physical and psychological perspective and can at times cause death.
In addition to the power of the Courts to award compensation under the Domestic Animals Act 1994 , a dog attack victim may have the right to bring a claim for damages as referred to above which may include a claim for medical expenses, loss of income and pain and suffering.  It does not matter whether or not the owner has been prosecuted in relation to the attack.

If you or someone you know has suffered injury as a result of a dog attack, please call us, we are experts in dog bite claims and are here to assist.

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.