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Transport Accident - Loss of Earnings

By Fortitude Legal Admin

TAC Loss of Earnings Benefits

If you have been injured in a transport accident and have an accepted TAC claim, you may be entitled to receive compensation in the form of loss of earnings benefits.

Benefit Duration

People injured in a transport accident are able to claim loss of earnings benefits for a period of 18 months following the transport accident, subject to providing certificates demonstrating that their transport accident injuries are causing incapacity for work.

Qualification for Benefit – “Earner”

To qualify for loss of earnings benefits, the injured person must demonstrate that they are an “earner”.  To establish that they are an earner, the injured person must be in full-time or part-time employment as an employed or self-employed person:

  1. At any time during the eight weeks immediately preceding the accident;
  2. During a period or periods equal to at least 13 weeks during the year immediately preceding the accident; or
  3. During a period or periods equal to at least 26 weeks during the two years immediately preceding the accident.

No Loss of Earnings Benefit Typically paid in first 5 days after accident

Typically, the TAC will not pay loss of earnings benefits during the first 5 days that the injured person was unable to work, unless the person is unable to establish acute financial hardship.

Benefit Calculated on Basis of Pre-Accident Weekly Earnings

Loss of earnings benefits are calculated on the basis of the injured person’s pre-accident weekly earnings.  The default position in relation to the calculation of a person’s pre-accident weekly earnings is to use the injured person’s earnings during the 12 months prior to the transport accident and to calculate a weekly average on the basis of these earnings.

Circumstances Where TAC Should Not Take the Average of Earnings During the 12 Months Prior to the Accident

There are circumstances where the TAC should not calculate pre-accident weekly earnings on the basis of the injured person’s average earnings over the 12 months prior to the accident.  These circumstances include:

  1. The injured person received a pay rise during the 12 months prior to the accident which entitled the person to earn more on a continuous basis (for example, move from part time employment to full time employment or change of job);
  2. The injured person was a full-time student at the time of the accident, but would have completed their studies after the transport accident, then the person would be entitled to have their rate of earnings recalculated on the basis of the amount the person would have received on completion of the educational course;
  3. If an injured person had entered into an arrangement for employment or self-employment at a particular date and time, the amount the injured person would have expected to receive in that employment;
  4. If an injured person is self-employed, the TAC should have regard to the earnings of the self-employed person in the 3 years prior to the accident. The TAC should not simply take an average of the three years earnings.  When calculating earnings for a self-employed person, the TAC should consider the costs incurred by the injured person in earning the revenue (i.e., the TAC will not calculate earnings on the basis of sales).

TAC Requirement to pay Loss of Earnings Benefits at 80% of Pre-Accident Weekly Earnings

Typically, the TAC is required to pay the injured person at the rate of 80% of their pre-accident weekly earnings.  However, if a person is a low-income earner there is a formula that allows an injured person to be paid up to 100% of their pre-accident weekly earnings.

The 80% formula sets a statutory minimum figure, which is currently set at $747 and allows an additional sum of $211 for the person’s first dependent and an additional $68 for every additional dependent.

The formula also has a statutory maximum figure of $1,500.

The statutory minimum and maximum figures are indexed each financial year.

Please note the following worked examples to assist in understanding the ways that the formulas are utilised:

  • John’s pre-accident weekly earnings are $1,100 per week and he has a dependent partner and dependent child. 80% of $1,100 is $880.  However, given John’s income and his dependents he would receive loss of earnings benefits in the amount of $1,026 (Dependent formula of $747 + $211 + $68 = $1,026).  You will note that John is not able to receive loss of earnings benefits at a sum greater than his pre-accident weekly earnings.
  • Andrew’s pre-accident weekly earnings are $5,000 per week. 80% of $5,000 is $4,000.  However, given that Andrew’s earnings exceed the statutory maximum his loss of earnings benefits are reduced to the statutory maximum of $1,500.
  • Angus’ pre accident weekly earnings are $1,000 per week and he does not have any dependents. 80% of $1,000 is $800.  The statutory minimum is $747.  Given that 80% exceeds the statutory minimum, Angus will receive the higher sum of $800.
  • Louis’ pre accident weekly earnings are $50 per week. 80% of $50 is $40.  The statutory minimum figure is $747.  Louis would receive loss of earnings benefits of 100% of pre-accident weekly earnings, i.e. $50 per week.

Top up of Loss of Earnings Benefits on Return to Work

The TAC is able to pay a partial loss of earnings benefit to an injured person upon return to part-time work provided that they continue to provide certification that they are incapacitated for work and also that the earnings from the part-time employment do not exceed the injured person’s entitlement to loss of earnings benefits.

Loss of Earnings Benefits are a No-Fault Benefit

The TAC will typically pay the benefit regardless of whether the injured person was at fault for the accident.  However, there can be some circumstances where the person is not entitled to loss of earnings benefits, or the compensation entitlement may be reduced:

  1. The injured person was driving the vehicle at the time of the accident without a licence;
  2. The injured person was driving an unregistered vehicle;
  3. The injured person was driving under the influence of alcohol or drugs;
  4. The injured person was convicted of a serious criminal offence connected with the driving of the vehicle, i.e., manslaughter, culpable driving or dangerous driving causing death;
  5. Refusing to comply with directions in relation to drug or alcohol analysis.

Impact of Loss of Earnings Benefits on Common Law Damages

The Transport Accident Act precludes a person from claiming any form of income loss sustained in the first 18-month period after the transport accident as part of a common law damages claim.  Therefore, any shortfalls on loss of earnings benefits are unable to be recovered.  As such, it is important to ensure that the claim for loss of earnings benefits is maximised.

Challenging TAC Decisions on Loss of Earnings Benefits

It is apparent that the nature of calculation of loss of earnings benefits can be complex and at Fortitude Legal, we regularly see circumstances where the rate of loss of earnings benefits has not been calculated appropriately.  We have been able to assist many people to successfully challenge their rates of loss of earnings benefits leading to greater payments being made to our clients.

We are also experienced in challenging decisions made by TAC to terminate loss of earnings benefits prematurely.  This situation typically occurs when the TAC determines that the injured person has a capacity for work on account of the opinion of an independent medical examiner.

Our office has had great success in challenging Loss of Earnings decisions through the No Fault Dispute Resolution Protocols. If you, or someone you know, requires assistance with their claim for loss of earnings benefits, please contact us on 1300 020 618.  It costs nothing to ask!

 

Forced Adoption - Compensation Scheme Announced

By Fortitude Legal Admin

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

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.

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

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.

You may also seek a personal response or an apology from the responsible institution.

Is there a redress scheme?

In March 2022 the Victorian Government announced $4,000,000 of funding to design a redress scheme for mothers impacted by forced adoption. The Government indicated that the scheme will provide compensation, counselling support and the option of integrated birth certificates, listing both the biological and adoptive parents.

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.  Whilst full details of the scheme are yet to be provided, the Government has indicated that application for the Scheme will open on 1 February 2024.

At Fortitude Legal we provide a free no obligation initial appointment to those directly impacted by Historical Forced Adoption Practices.  We will register your interest in applying for compensation and provide advise on any other potential rights you may have.

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.

child abuse

By Fortitude Legal Admin

Children and teenagers spend most of the day at school where they deserve to feel safe. Students are in a vulnerable position at school, being in the care, supervision and control of teachers and education support staff such as aides, counsellors and other employees.  Sadly, the Royal Commission into Institutional Responses to Child Sexual Abuse revealed many children have suffered from sexual and physical abuse in Victorian schools. Perpetrators are highly manipulative, using a variety of techniques to groom students over a period of time, to control children and to try to stop them from disclosing the abuse.

Teachers and staff at public, private, and boarding schools have a duty of care to take all reasonable precautions to reduce the risk of child abuse being committed by individuals associated with the school. This duty is non – delegable and applies to principals, teachers and all other staff working with children and extending to all interactions at schools and events off campus, including excursions, camps, sporting activities, competitions, music performances, tutoring and other interactions beyond school hours.

Schools have a responsibility to take reasonable care to reduce the risk of physical and sexual abuse. This can include, for example:

  • Completing background checks during recruitment of staff, volunteers and student teachers including Criminal Record Checks and Working with Children Checks;
  • Ensuring adequate supervision of teachers and other staff at all times;
  • Undertaking risk assessments;
  • Complying with existing policies and procedures;
  • Investigating and responding promptly and thoroughly to any complaints and allegations of inappropriate behaviour.

In addition, all Victorian schools must abide by the 11 compulsory minimum Child Safe Standards and comply with mandatory reporting obligations. These reporting obligations require teachers and other staff to make a report to Child Protection (the Department of Families, Fairness and Housing) as soon as reasonably practicable, upon forming a belief on reasonable grounds, that a child is in need of protection from physical injury or sexual abuse.

Children who are victim – survivors of physical and sexual abuse may be entitled to bring a compensation claim against the school and/or the perpetrator of the abuse. The team of local lawyers at Fortitude Legal are experienced in representing victim – survivors and have successfully obtained compensation for students who have been abused in educational settings.

Parents and students who are affected by child abuse can contact the following organisations for support:

If you would like to have a confidential chat with our expert lawyers, please contact your local team at Fortitude Legal who will handle your enquiry sensitively, discretely and confidentially.

Truckies Rocked by Suicide Trauma Fight for Justice

By Fortitude Legal Admin

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

 

Autonomous car

By Fortitude Legal Admin

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

 

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!

Exposed to Asbestos Can I Sue?

By Fortitude Legal Admin

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

 

How To Win a Personal Injury Claim

By Fortitude Legal Admin

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!

Injured on the Road - Cyclists Rights

By Fortitude Legal Admin

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..

Dog Attacks - Your Rights

By Fortitude Legal Admin

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!